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Thursday, May 29, 2008

Texas Supreme Court points to less disruptive protections available for FLDS children

This afternoon, the Texas Supreme Court denied a request made by the Texas Department of Family and Protective Services to overturn last week's ruling by the Austin Court of Appeals in the polygamy/child custody dispute involving the Fundamentalist Church of Jesus Christ of Latter Day Saints and their Yearning for Zion Ranch.

The mainstream media and some legal pundits and commenters (see, e.g., here) may play this as another big loss for the Department. But in fact, the Texas Supreme Court gave the Department (and the lower courts) some badly needed suggestions and guidance, and clearly signaled that more carefully tailored relief may still be appropriately granted at the trial court level even on this vastly incomplete record. And while it presumably needs to move swiftly, the Department does not necessarily have to immediately return all the children with no strings attached as the trial court considers those alternatives.

Smart people (including smart lawyers) of goodwill are finding themselves on opposite sides of these issues — as evidenced by the 53 comments so far on my previous post on the controversy. I'm going to pat myself on the back a bit, though, for predicting last weekend pretty much where the Texas Supreme Court would come out today:

Ultimately I think the court of appeals reached the correct decision, given the state of the current record. There's just not the required "emergency" to justify taking those kids away from their parents on an across-the-board basis right now, without investigation and proof on a family-by-family, child-by-child basis.

In a subsequent comment, I went further out on the limb: "I don't think the Texas Supreme Court will reverse the Austin Court of Appeals." And in another comment, I went even further and got more specific:

[N]otwithstanding the Austin Court of Appeals' mandamus ruling, there are still lots of options available to the Department and the trial court short of returning unencumbered custody of even the relators' children back to them. I think I've read (but can't immediately find a link to back up) that those particular children are being returned conditioned upon them not being returned to the compound, but instead with a requirement that the families reside under supervision in the San Antonio area. Depending on the degree of supervision, that might lessen the flight risk substantially.

Moreover, the Department may not, and ought not, treat the court of appeals' ruling as binding across the board to families who weren't relators. For those with pubescent female children, the Department might stand tough on the existing orders, and/or seek rehearing at the trial court level with more particularized evidence.

Now it turns out that a majority of the Texas Supreme Court sees the case pretty much the same way. A fairly short and sweet per curiam (i.e., unsigned) opinion for the court's majority holds:

Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.

But that holding emphatically does not mean that there should be widespread cork-popping of non-alcoholic champagne at the FLDS compound tonight. Without pausing to start a new paragraph, the per curiam opinion plunges into a very overt, very clear suggestion — technically dicta, but as powerful as dicta ever gets! — as to what the Department and the trial court ought to do next (footnotes omitted; boldface mine):

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The [district] court may make and modify temporary orders "for the safety and welfare of the child," including an order "restraining a party from removing the child beyond a geographical area identified by the court." The [district] court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, [the district court] need not [vacate those temporary orders] without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR [suits affecting parent-child relationship] proceedings.

Although the SAPCRs involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues.

This is the Texas Supreme Court saying to both the Department and the trial judge: Your baby ducks aren't yet in a row. We understand that you have some pretty persuasive reasons for why that's so, but they still need to be in a row before we'll let you continue separating baby ducks from mommy ducks during the period between now and the final trial of this case. And you probably need more than one row, because not all the baby ducks are the same. So get busy. (And in the meantime, provided you're moving briskly, you don't have to immediately turn all of the baby ducks back over to the flock, especially if they're pubescent female ducks.)

Three members of the Texas Supreme Court wrote separately, concurring in part and dissenting in part, to basically emphasize what I think was the implicit (but clear) message of the majority's per curiam opinion. However, they think the Department has already made an adequate showing with respect to pubescent female children, and would have reversed the Austin Court of Appeals' mandamus order with respect to them. They also were very unsympathetic to the mothers' complaints about the lack of thoroughness in the proof presented to the trial court, given other evidence submitted by the Department as to the interference in its fact-gathering efforts. These three justices thought that such interference and noncooperation justified the Department and the trial court in failing to exhaust less severe remedies than splitting all the children from their parents and putting them into temporary foster care.

That, admittedly, is a minority position. It will function as a pat on the back to the Department and the trial judge, but that and $4.75 will buy them each a grande mocha latte at the Starbucks in San Angelo. Nevertheless, it certainly is a counter to those pundits who've characterized this raid and the aftermath in extreme terms, portraying it as basically a mass-kidnapping by a fascist, anti-religious, and completely inept state government.

As for me: Since it did what I predicted, you'll be unsurprised to hear that I think the Texas Supreme Court majority got it just about exactly right — including where it stopped writing. The only thing of which I'm absolutely sure is that nobody in the Texas Legislature, when they were revising the parts of the Texas Family Code that currently make up the chapters on emergency removals and SAPCRs, ever envisioned a proceeding of this scope. Nor were the Department, local and state law enforcement agencies, or the local trial courts remotely prepared to grapple with so many, to and for whom so much is so important.

That this has not been "pretty" so far, in the sense of being well organized and methodical, should surprise no one. Even competent, well-meaning professionals working at the limits of human capacity — on both sides! — have fallen, and are going to fall, far short of perfection as this sorts out. So let's try to limit the demonization and conspiracy theorizing, as well as the smugness (of which I've seen way too much in the blogosphere, including among legal pundits and commenters who damned well ought to know better).

Commenters: Your thoughts continue to be welcome, but please use extra efforts to be civil to one another and to avoid personal attacks. If you have a tie to the case, I encourage you to disclose that. (I have none.)


UPDATE (Thu May 29 @ 7:50pm): Sure enough, here's an example of well-meaning but utter bone-headedness by the Houston Chronicle in their lede on today's ruling:

The state illegally removed more than 400 children from their parents last month after raiding a polygamist sect's West Texas ranch, the Texas Supreme Court said today.

The decision was a stunning victory for a group of the mothers who were represented by legal aid attorneys in their challenge of the largest custody case in Texas history.

And it will make it much more difficult for child welfare authorities to continue their investigation into whether children were abused on the remote compound owned by members of a breakaway Mormon group known for its polygamist practices.

Three breathless paragraphs. All three are wrong.

Working backwards: As I've pointed out in the first part of this post, the main significance of the decision today, and the surprise if there was one, was in the Texas Supreme Court giving the Department and the trial court a roadmap about how to go about granting lesser, more carefully tailored relief.  That makes it rather easier for "child welfare authorities to continue their investigation." Indeed, the Supreme Court pointedly reminded the Department and the trial court that they have so-far-unused remedies for occasions upon which their investigations are interfered with.

This was a victory for the moms, but only a clear victory for the particular ones who were part of the mandamus proceedings, and even for them, it was hardly "stunning." I predicted it, for example, including to the extent that it would actually gratify the Department. Most other pundits and press who were making predictions were, to my knowledge, predicting that the Texas Supreme Court would indeed affirm. Moreover, given what else the Court said today, its ruling makes it rather less likely that even those moms will immediately get back their kids with no strings attached. It's a rather equivocal victory, I'd say, and maybe in the big picture not even that.

Finally, as I pointed out in my prior post, these decisions aren't on whether the seizures of the children were "legal" or "appropriate" or "in good faith" or anything else in the first place. They were on whether the Department has to return the children at the conclusion of the adversary hearing mandated by a completely different subchapter of the Texas Family Code. You can search all you want for the word "illegal" in today's per curiam opinion. It's not there. What the Texas Supreme Court actually said, correctly, is that it is "not inclined to disturb the court of appeals’ decision," which in turn was a decision that "the Department had failed to meet its burden of proof under section 262.201(b)(1)." Section 262.201 is entirely forward-looking, and entirely focused on the interim time period between the adversary hearing (which by statute had to begin within 14 days after the seizure) and a final trial on the merits. It's the "removal" of the children from their parents by the trial court in its orders at the conclusion of the adversary hearing that the Supreme Court found to "not [be] warranted."


UPDATE (Thu May 29 @ 8:22pm): InstaPundit Glenn Reynolds quotes an equally misleading headline from the Austin American-Statesman: "Court: Polygamist sect’s children must go home." Well, yeah, except that's not at all what the Texas Supreme Court actually said, or even very close. I hope he'll look more closely, because this is an interesting case that would benefit from more than just headline-depth analysis. (Especially when the headlines are misleading.)


UPDATE (Thu May 29 @ 10:45pm): This article in the Dallas Morning-News, by contrast, is a good piece of reporting.


UPDATE (Fri May 30 @ 12:35pm): As is unfortunately typical, the Houston Chronicle has now completely rewritten its original news story, and placed the new one at the same URL as what I linked earlier. (When, oh when, will the Chron realize that in the internet age, that sort of hiding the ball and erasing of tracks amounts to gutless, dishonest journalism? But it happens on a daily basis at the Chronicle — whereafter they hide their archived content behind a subscription-only firewall. These are the main reasons why I avoid linking or quoting my hometown newspaper whenever possible.)

The three lede paragraphs I quoted above have disappeared. And among the paragraphs (appropriately) added to the new version — without explanation or excuse for why it wasn't in the original:

It was not clear exactly when the children will be returned and restrictions can be placed on their living arrangements.

CPS attorneys will have to decide whether to go back to court to try to regain custody of some of the children, particularly the underage girls, whose safety has been at the heart of this case.


The court ordered District Judge Barbara Walther to withdraw her order giving the state custody of all the children, who are scattered around the state in group homes and shelters. But it noted that she can place conditions on their return, including requiring them to stay in West Texas and removing alleged abusers from their home.

University of Texas Law Professor Jack Sampson said the ruling gives Walther broad discretion to provide greater protections to teenage girls, and that she can make sure CPS has access to children who are returned to the ranch.

"She has the power to ensure that the kids aren't going back unmonitored," he said.

There's more along those same lines — at least at the moment I write this. (Who knows what will be at that URL this time tomorrow?) But it's not even certain that "returning to the ranch" is in the cards for any of these kids. If I were representing the Department, I'd certainly argue, at least with respect to families containing pubescent girls, that the girls' return to their mothers should be conditioned on the mothers living elsewhere than the ranch for now, and under fairly heavily supervised conditions to minimize the flight risk.

Posted by Beldar at 07:03 PM in Current Affairs, Law (2008) | Permalink


Other weblog posts, if any, whose authors have linked to Texas Supreme Court points to less disruptive protections available for FLDS children and sent a trackback ping are listed here:

» Texas CPS workers interviewed on FLDS intervention from BeldarBlog

Tracked on Jun 8, 2008 5:29:18 PM


(1) DRJ made the following comment | May 29, 2008 7:32:52 PM | Permalink


I commend you for your good judgment in analyzing this case, and I have no ties to it other than I'm interested in it as a West Texan.

(2) DRJ made the following comment | May 29, 2008 7:40:20 PM | Permalink

FWIW, I think most of this could have been avoided had Judge Walther called in more judges to provide personalized 14-day hearings. The differences in the various family situations would have been more apparent and the rulings could have been tailored to each situation.

(3) Beldar made the following comment | May 29, 2008 9:05:50 PM | Permalink

It appears that contrary to my recollection from my last drive through San Angelo (Christmas 2007), that fair city as yet has no Starbucks. I'm certain that it has lots of other places that sell coffee, though, and probably cheaper.

(4) DRJ made the following comment | May 29, 2008 11:47:56 PM | Permalink

We stop at Denny's or Whataburger on US 87 but the locals probably know other off-the-highway places.

(5) DRJ made the following comment | May 30, 2008 12:31:28 AM | Permalink

From a legal perspective, I'm not disappointed with this result and it was a logical decision in a state like Texas where people are concerned about the scope of government power. But I can't help feeling the ultimate message is that nice-looking people can pimp their young teen girls as long as they provide them with nice housing, feed them healthy foods, and dress them in clean, modest clothes.

I hope time proves me wrong.

(6) kbp made the following comment | May 30, 2008 12:58:54 AM | Permalink

As I read it, the important part of the opinion is "not inclined to disturb the court of appeals’ decision."

There are no new laws that the opinion produced.

There is nothing that adds NEW ammo for "convict the world" Walthers or the CPS crews to use.

Re-directing them, if such is what you wish to see, does not help to convict any that are guilty of a crime or protect any that are victims.

The kids go home, the investigation proceeds without having uncovered a "perpetrator".

I sincerely like what I see are your intentions, it's just that you seem to limit your focus.

I have no doubt there are crimes to uncover, but convicting a religion will not incarcaerate any criminals.

IMO, you focus on the forrest, while the laws apply to the individual trees within it.

Pat yourself on the back again, you're a great guy doing great work, in your opinion.

A great guy that cares not to have others help if they can to show him what is going on directly in front of him.

(7) kbp made the following comment | May 30, 2008 1:03:14 AM | Permalink


"FWIW, I think most of this could have been avoided had Judge Walther called in more judges to provide personalized 14-day hearings."

So then the absent evidence for all of the cases would have materialized how?

(8) Gregory Koster made the following comment | May 30, 2008 2:11:01 AM | Permalink

Dear Mr. Dyer: It’s hard to know where to begin with this latest post. Its entire tone seems at odds with so many of your other posts. Start with this assertion in the next to last paragraph of the original post:

Even competent, well-meaning professionals working at the limits of human capacity — on both sides! — have fallen, and are going to fall, far short of perfection as this sorts out.

(Emphasis mine.) We have the Court of Appeals and Supreme Court opinions to show that CPS has fallen short of perfection, an understatement, I think. Where have the professionals on the “other side” fallen short? Do you have a single fact you can cite? You could argue that by thwarting CPS’s actions, counsel for FDLS are causing injury to innocent children. Trouble is, Texas CPS has to show that the children are in actual danger. They may yet do it---but so far, their record isn’t looking good. So again: how have the ‘professionsals working at the limits of human capacity’ for the mothers “fallen short?” Asserting they have won’t get you far.

Next, Texas CPS, as prosecutors often do, have a huge advantage against the defense, in budget, in investigative power, in compelling the truth. To be sure, this is not the only case they have to handle. But there’s another advantage they have: this is their business. Working these cases year in and year out should build up expertise. CPS can learn from experience. But if they have, it is not apparent in the Ranch case.

Next, I’m dismayed at your praising the Supreme Court for pointing out the “proper” tools for Judge Walther to use. This horrifies me. The Supreme Court has to ride herd on all the appellate courts, plus the trial courts of all 254 Texas counties. Are you saying the appellate courts have so many free resources that they can point out to trial judges what they should have done as a regular practice? I can’t think of a more damning indictment of Judge Walther than to have the Supreme Court tell her how to do her job, the more so because I think it likely (without having a scrap of evidence to back up this assertion) that counsel for the mothers likely did point out some of these other tools in the original hearing. That is what defense counsel are supposed to do. If they didn’t, this may be the failing you are referring to. But even if defense counsel didn’t bring these up, how is it that the Court of Appeals and the Supreme Court, much farther from the scene of action can see what Judge Walther either did not, or chose not, to see? I repeat what I said in an earlier comment: any trial judge faced with such a monster of a case deserves sympathetic consideration, particularly if it’s the first time such a monster has landed on her docket. But Judge Walther has forfeited much sympathy by her handling of the case. She had to have known that the case would be huge a) literally with 400+ children and b) figuratively, in the public eye. DRJ admits as much when he says it would have been better for Judge Walther to have called for help, to get more tailored rulings. Who could possibly have objected to such a request? We do know that she didn’t. It’s too soon to see why, but such a failure requires investigation. It may not be entirely her fault; there may not have been enough judges to help. But these facts need to be brought out. The Legislature is the logical choice for this.

Next, there’s your assertion that no one in the Texas Legislature imagined this sort of situation when they wrote the present version of the Family Code. You may be right, but that damns CPS. CPS is an Executive body, and one of the well hallowed customs of the Executive is proposing remedies to the Legislature. The Executive is “the man on the spot” so to speak, and it’s well settled that observations and proposals to the Legislature to prevent problems are part of the Executive’s duty. If the Legislature does not act, the Executive has at least done its part. If CPS can show such proposals, not acted on by the Legislature, it is a great point in their favor. What they can’t say is that a Ranch style case never occurred to them. The Waco fiasco, even though done by the Feds, showed that cults could be big (53 adults and 21 children in this case.) Or go east, to Georgia: in 2002 Dwight York, the leader of the cult the Nation of Moors, was indicted for underaged sex---and there were more than 1000 people in that colony. If it can happen in Georgia in 2002, it could happen in Texas. If CPS does not bring this to the Texas Legislature’s attention, with a proposal to make itself ready, who is likely to? Could anything damn CPS more? They are now in the position of the British Board of Trade in 1912, which prescribed lifeboat regulations for the TITANIC, or George Tenet and Condoleezza Rice saying that no one was thinking of planes flying into buildings. The thousands dead in both these instances make such protests seem hollow. There’s a possibility that CPS may be able to prove underage criminal behavior---but have it tossed out because of the procedural irregularities. That would be a hell of a finish to this case.

Finally to end this enormous comment, you posted last year on the Illinois attorney arguing in a Florida bankruptcy court who told the judge her argument was “a few French fries short of a Happy Meal.” Said judge whammed the attorney hard, and you agreed with this whamming, saying it was a good thing for the Illinois attorney that you weren’t on his disciplinary committee, because you would have figuratively shook him until his teeth rattled. I think everyone would agree that the Illinois attorney’s transgressions are trivial compared to the ineptness of CPS. Yet I don’t see any sort of irritation on your part with CPS. Having read your blog for some years, it is not the response I would have expected. I'll grant you freely that many of the denunciations of CPS are ill-informed, with too much in my own comments. But CPS is in a prosecutorial role, with an obligation to "do justice." This is a dreadful start, to say the least. I would have expected exasperation with CPS. CPS has not followed the proper procedures, with both appellate courts agreeing that the trial judge was wrong in giving CPS what it asked for. This has done great harm to CPS’s reputation for competence, and conceivably may cause any convictions to be reversed as tainted. That’s an outcome no one should want.

Sincerely yours,
Gregory Koster
(not of CUNY)

(9) Beldar made the following comment | May 30, 2008 3:03:04 AM | Permalink

Mr. Koster: I've said, for now, exactly what I intended to say, given what information I presently have and what opinions (even tentative ones) I'm comfortable expressing. Having read your latest comment, I feel no need to un-say or even supplement what I've already said on any of the points you've eloquently raised. Sorry.

Too many (including many who know less than I do about either the law or the facts) have already said more, with more vehemence, than is prudent.

(10) nk made the following comment | May 30, 2008 7:09:31 AM | Permalink

Sigh. Giving guidance to the trial courts is one of the most important functions of courts of appeal, Gregory. That's why their opinions are published in weighty volumes and are called case law.

(11) JMR made the following comment | May 30, 2008 10:01:36 AM | Permalink

The problem with this case is that the judge in this case didn't do her job: she failed to prevent the CPS witness from perjuring herself in front of the court and it seems she failed to see the perjury at all [The bishop report, which was entered into evidence by state contradicted her age guessing]. Ideally, the hearing should have been conducted more like the Indian Pond, VT raid hearing where the judge heard 40 individual cases in less than a day before deciding to rule enmass as to the other 62 (with concurrence of both sides) on the rest [they were all returned home even though there was evidence cited by the same judge in a previous opinion that some of those church community members were physically abusing children. the real failure was Walther not doing her job and holding separate hearings, reviewing the evidence and separating the generalizations and fictions from the specific facts (of which very little was provided - I think it amounted to 5 teenagers of whom one may not exist [Sarah Jessop Barlow who's probably Rozita Swinton], another who may never have been with child and 3 seventeen year olds, one pregnant and the others with infants, no evidence on whether they are married, taking drugs, have neglected themselves and their child, only an allegation they may have been raped, with no sworn complaint by the victim). The moral of this story is that when the evidence isn't strong enough to support removal the court has other options such as safety plans, so just do your job of judging faithfully and well for each individual child as guilt isn't communal, it is personal. Everyone who took part in this raid may now be accused of violating 18 USC Sec. 1091 as there is no legal order anymore allowing those children's removal. Texas would also benefit from having to have a full hearing within 24-72 hours rather than 14 days, to prevent the state from obstructing justice (removing cell phones, threatening mothers that if they attended the hearing they wouldn't be allowed to come back with their children, when all the children should have been allowed to go to the hearing, knowingly solicting perjury on the stand, denying lawyers access to their clients) as the state seems to have done in this case.

(12) Gregory Koster made the following comment | May 30, 2008 1:01:52 PM | Permalink

Dear NK: You are right, giving guidance to the lower courts is a big part of appellate courts's job. But this guidance is: "this is what the law is and how you must apply it." It shouldn't be "this is how you do your job" unless, as a consequence of saying what the law is, it changes the way trial courts must operate. Surely this isn't the case here. The Texas Supreme Court and the Court of Appeals didn't reinterpret the law, nor any procedures the trial court operated under. They did correct a trial court error. This, too, is a part of appellate courts's tasks, and when it happens, trial courts can be embarrassed, or worse.

Mr. Dyer is right: this case will continue to unfold, and letting it do so will give all of us more facts to base opinions on. I will stick to my position at the narrow end of a long branch and say that the more facts that come out, the worse CPS and the trial judge are going to look. This isn't a triumphal exoneration of the Ranch, which already appears grotesque to most outside eyes, and may actually be criminal. But short of proving a crime, the American system is set up so that grotesquerie is not a cause for jail nor fines.

Nor longwindedness, fortunately for me.

Sincerely yours,
Gregory Koster
(not of CUNY)

(13) DRJ made the following comment | May 30, 2008 1:52:25 PM | Permalink


I obviously should have made my statement more clear: I think that if Judge Walther had called in extra judges in order to hold separate 14-day hearings, some of the children would have remained with their parents - although perhaps with restrictions and continued oversight - and that would have been a more legally appropriate position.

I've stayed in this conversation because I like Beldar's blog but I don't understand why this topic has generated such disjointed and often hate-filled comments. Enjoy your rants. I'm through.

(14) DRJ made the following comment | May 30, 2008 2:04:30 PM | Permalink

By the way, I meant to mention in my last comment that Judge Walther scheduled a hearing in the FLDS matter for 2 PM CST. It should be starting right about now and I assume she plans to vacate her previous Order(s) and enter new Order(s).

(15) DRJ made the following comment | May 30, 2008 3:27:05 PM | Permalink

Here's the San Angelo Standard Times' summary of Judge Walther's proposed Order.

(16) Beldar made the following comment | May 30, 2008 6:33:47 PM | Permalink

JMR: The Department and law enforcement personnel who participated in the raid are not going to be charged under 18 U.S.C. § 1091, which governs genocide. Nor are they going to be charged with kidnapping or any other crime. They may, or may not, depending on how things turn out on the merits, be sued for damages, but I'm far from persuaded that even that would have a chance of surviving an early dismissal motion, and based on information from press accounts (which I generally deem highly unreliable in this case), I certainly wouldn't risk my own time or reputation by taking such a case on a contingent fee.

The custody order under which the children are presently being held was not vacated (canceled) by either the Austin Court of Appeals or the Texas Supreme Court. Rather, they directed the trial judge to do that, and as the Supreme Court's majority opinion made especially clear, she has the power to control the transition back to parental custody if in fact that is what she orders. Until she orders to do them something that they refuse to do (and all appeals and motions for rehearing from that have been resolved against them), the Department and law enforcement personnel are effectively immunized from such criminal liability, and more than likely they're immunized from civil liability as well.

I assume you're not a lawyer. (If you're a lawyer, I assume you're not a practicing lawyer. If you're a practicing lawyer, I assume you're not serious. If you're serious, then you're badly confused.) Explaining this sort of distinction for lay readers who may otherwise jump to wrong conclusions is one reason I blog, and I'm glad to do so here. I hope you'll accept the correction gracefully.

But making that sort of accusation is exactly the kind of over-reaching — driven by emotion — that makes this debate so contentious. Seriously, "genocide"? That's over the top, even for a lay reader to suggest.

As for your specific factual allegations (e.g., witness perjury), they'd be more weighty if accompanied by links or sources, or if you have some first-hand connection to the case that you'd care to disclose. Otherwise, I for one am inclined to take them no more seriously than I am your suggestions about the law. (My readers are free to make up their own minds, as always.)

Both the Texas Supreme Court and Austin Court of Appeals' decisions were civil, professional, and respectful. Indeed, I think they were deliberately spare, reflecting the appellate judges' collective desire to avoid prejudgment and to set aside their emotional reactions.

It's too much to ask bloggers or blog commenters to be that dry and clinical. But please, folks — try to be decent. Don't constantly assume (and argue) the very worst about everyone on one side or the other who's involved in the controversy.

(17) Phelps made the following comment | May 30, 2008 9:10:43 PM | Permalink

I'm not a lawyer -- I work in Trial Services. I see a lot of trials. I have enough experience to know two things: every trial is going to have some level of decisions that can be strongly argued as error, and the Texas appeals system is very good (almost Solomonic) about having justice and equity prevail.

The real root issue here is not necessarily what the courts are doing. The issue here is CPS. There is a good amount of evidence that CPS flys by the seat of its pants, and individual agents make too many decisions based on gut reactions rather than the law.

They will go in, look around, decide what their "feelings" tell them and act on that. Then, after the fact, they will gin up whatever they think is a legally sufficient justification for the actions they have already taken.

That isn't how the authorities in a free society should work.

(18) DRJ made the following comment | May 30, 2008 10:05:03 PM | Permalink

The deal fell apart and it looks like Judge Walther is about to wash her hands of this case. I hope not - that would be unfortunate.

(19) griefer made the following comment | May 30, 2008 10:33:49 PM | Permalink

Beldar, your work is excellent.
May I admire you?

Don't worry, i am not here in my official capacity...like Dr. Lectuer only ate the Rude, i only grief the Stupid...and that is certainly not you.

450+ DNA tests is not only financially burdensome, but logistically as well.
How did CPS justify testing ALL the FLDS children?

Your opinion?

(20) nk made the following comment | May 31, 2008 8:27:31 AM | Permalink

I wonder about the DNA tests as general policy under the statute, too. Has Texas abandoned the common law rules for paternity such as birth in a marriage and acknowledgment of the child?

(21) DRJ made the following comment | May 31, 2008 1:50:41 PM | Permalink


My family law friends tell me that conventional Texas paternity cases are based on births during a legal marriage, but DNA comes into play when paternity is contested in court. In contested cases, DNA is the primary method of determining parentage but the court allows other evidence such as lack of access or (for fathers) inability to father a child.

(22) DRJ made the following comment | May 31, 2008 1:53:21 PM | Permalink

FWIW, I don't think DNA testing is routine in CPS cases, which is why the court has to order it. It happens in cases where the parents' identities are unclear such as this one.

(23) kbp made the following comment | May 31, 2008 2:28:20 PM | Permalink

DNA Testing

See 160.104,160.502 & 160.503 atFAMILY CODE, CHAPTER 160

(24) hunter made the following comment | May 31, 2008 3:00:02 PM | Permalink

Speaking as a lay citizen who has tried to be well informed of the case, I see this:
A state agency that cynically used what it had every reason to know was fabricated evidence to contrive an excuse to use heavy handed paramilitary tactics to take any who looked like a child away from their families and hold them in custody in dangerous circumstances.
CPS, the Judge, the DPS, all either misused the law, procedure or committed perjury to justify this taking.
I don't realy care about what the insider's game on this is. The law is supposed to serve the people, not the people the law.
In this catastrophe, the law has been used to abuse a group of people and destroy them based on a total absence of real evidence. Now, long after the fact, they claim to be making arrangements to find evidence.
That is not what an American should expect from the legal community.
The children should all be returned home. NOW. No more games from CPS or slick lawyers.

(25) nk made the following comment | May 31, 2008 3:11:35 PM | Permalink

Thank you, DRJ. I would hate to think that a father who raised a child born to his wife during their marriage would be denied standing in a CPS case.

(26) DRJ made the following comment | May 31, 2008 4:31:23 PM | Permalink


The Texas Family Code recognizes the presumption of paternity as provided in Chapter 160 Section 160.204 of Texas' Uniform Parentage Act. At that same link, Section 101.024 defines a parent as "the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father."

(27) DRJ made the following comment | May 31, 2008 4:48:01 PM | Permalink

kbp and hunter,

Let's try this one more time. I assume you are both concerned about an overreaching government that wrongfully and forcibly takes away children from their families. You are concerned that this could happen to anyone and that distresses you. Have I stated your concerns in a fair and accurate manner? If so, I think they are reasonable concerns.

Just because I disagree with your conclusions doesn't mean I'm unwilling to find common ground or to discuss this case in a calm and respectful manner. I hope at some point you will try to see my point of view.

(28) Beldar made the following comment | May 31, 2008 4:50:39 PM | Permalink

Hunter, my friend:

Are you already convinced that there have been no instances of underage sexual relations, ever, at the YFZ Ranch? Is everyone there entirely innocent of any violation of the law? Are the accounts of the FLDS' historical practices in other places, including the specific practice which currently has its "prophet" in prison as an accessory to rape, wholly inapplicable to this place? Were the accounts of noncooperation with the initial investigation all entirely fabricated, or if even some of them are true, was that noncooperation the product of something other than having something to hide? Are you irrevocably convinced of all of these things, too?

I think this case raises incredibly important moral and legal issues. Personally, I'm far from having made my mind up about any of them. I'm reasonably sure that so far, there has been a very robust effort by advocates (not all, or even most, of them lawyers) for both sides to spin such information as has been gathered, and my very strong hunch is that a huge amount of information has yet to be gathered and processed. I have a very low confidence in most of the press accounts; certainly most of them have been wrong about the legal aspects of the case more often than they've been right, and their sources for trying to report the facts are those self-same spinners.

So I'm surprised that anyone is ready to draw such firm conclusions as you have. Such is your, or anyone's, right to do, of course. And your conclusions may eventually be substantiated to the satisfaction of all observers. But I, for one, can certainly still imagine things coming out differently, maybe by just a little, but maybe by a lot. And I'm actively working to keep an open mind, precisely because these are such important questions.

(29) kbp made the following comment | May 31, 2008 5:26:09 PM | Permalink

The entire first paragraph is full of accusations and conduct absent any proof of a guilt. All delivered in a manner that requires proof of innocence. All absent proof of guilt.

And, for the record, I do not doubt there will be one or more convictions, but am more certain there overwhelming majority will never face charges and are only guilty of being members of the FLDS that reaide in separate household on the YFZ Ranch.

On evidence of the conduct by officials, there is a HUGE amount of it available within the public documents produced by the authorities involved and direct quotes of those officials within the press, which I politely offered, unsuccessfully, to share.

I provided a list of reasons (for that conduct in question), based on the evidence available, and every one of your comments in response has avoided addressing a single fact within that list. The majority were simply your opinion, with a few unrelated hypothetical scenarios for comparison added in to help explain away the facts.

When you can explain to yourself why the call from Sarah - telling of a 16 YO pregnant mother that reported facing life threatening physical assaults daily - was ignored for FIVE DAYS, you'll be in a position to then work on explaining that the laws Hilderbran passed were not proposed to control the FLDS members at YFZ Ranch.

You have my email, let me know when you're ready for the Hilderbran task. I'll send you 5 reports he put together himself, all of which identify the FLDS as the target of the laws he proposed and enacted by attaching them to another bill.

(30) DRJ made the following comment | May 31, 2008 6:03:41 PM | Permalink


I know your last comment was directed at Beldar but permit me to add my 2 cents.

1. I'm sure the change in the Texas law regarding the age of consent for marriage was aimed at the FLDS. So what? Laws are passed because there is a need for them but the law applies equally to everyone. Had the law been passed and it specifically provided it only applied to the FLDS, I would share your concerns.

2. It took 5 days to mobilize a response to the FLDS outcry. It takes time to mobilize people to respond to a remote location that could be successfully defended with armed men. Remember the Alamo? Texas didn't want that to happen here.

3. There is no way I'm going to open attachments in an email from an unknown source. Either put your information online for everyone to see or link to it, but please stop *figuratively* beating everyone up because we don't want to download your personal files.

4. The first paragraph of Beldar's last quote is full of reasonable questions and possibilities about the FLDS based on known facts about Warren Jeffs' and his group. Wishing it otherwise doesn't make it true.

(31) DRJ made the following comment | May 31, 2008 6:16:08 PM | Permalink

By the way, kbp, if Texas authorities had planned this hoax, the authorities would have been prepared to enter the compound immediately. If that had happened, would you have argued the prompt response proves bad faith by the Texas authorities? You can't have it both ways. Either Texas' authorities planned this or it was thrust upon them.

I think a lot of things could have gone bad that didn't, and I attribute that primarily to the Texas DPS. I think the CPS did a remarkable job relocating the mothers and children, and then separating them for placement. Reports suggest the children are doing well and there have been few complaints about the children's treatment from the parents who have visited them, other than their concerns to be reunited.

Any breakdown in what happened centers on the legal system and Judge Walther, who undoubtedly did her best in a novel situation. As judge in a family law matter, her job is to protect children. To the extent the Judge erred, it's been remedied in just a few weeks time ... and at State expense by attorneys and ad litems appointed and paid for by the State.

(32) Jerri Lynn Ward made the following comment | May 31, 2008 7:32:54 PM | Permalink


Neither the ad litems or the parent's attorneys are being paid one red cent by the State (or anyone else in most if not all cases).

(33) hunter made the following comment | May 31, 2008 7:47:41 PM | Permalink

Beldar, You make some great points. Right now, just west of Bissonnet near where we both live, underage girls being worked as prostitutes are hitting streets. Right now, at the high schools your daughter goes to and at the ones mine went to here in HISD, older boys are having sex with younger girls. Underage girls have spent the spring pregnant at the schools our kids attend.
CPS is doing what about any of this?
The standard of proof CPS is getting away with at YFZ is one that in any criminal case would not even make it to the Grand Jury in a criminal proceeding.
They. Have. Nothing.
CPS has leaked like crazy everything they have had, and it was either wrong, fabricated or perjured.
I have extremely personal reasons to go after men hitting on underage girls. There is one particular schmuck whose life I have enjoyed making sure stays wrecked for a few years now.
But I do not condone the veneer of 'saving the chilrun' as an excuse for group punishment, guilty-until-proven-innocent and dispersing like a mini-diaspora a bunch of kids under this scenario.
THe fact is that there was NO evidence at all of anything going on when the CPS made their raid. They made the raid based on a claim they should have known from a cursory glance at caller ID was phony.
There has never been any evidence that true pedophilia- sex with pre-pubescent children- has happened at all.
Many of the so-called 'young teen pregnancies' were in fact adults with > 20 years.
Heck, if CPS had simple common decency and even a scrap of intelligence, they would back out of this ASAP.
All they are doing now is hoping they can find something in a group of >400 kids to pose as a bona fide case.
AS I understand the law, the police do not get to just round up a bunch of people and then hunt around until they find a case, but then I am just a lay person, not a legal scholar.

(34) Darleen Click made the following comment | May 31, 2008 8:18:42 PM | Permalink


Here you will find links to the pdf copies of the letters from the mental health professionals that were brought in to observe the women and children imprisoned at Ft. Concho the first few weeks after the raid. These are eye witness accounts of the cruelty the CPS visited upon the women and children.

It reads like something from Schindler's List.

Please tell me there are grounds for Federal civil rights violations against Texas CPS.

(35) DRJ made the following comment | May 31, 2008 8:20:35 PM | Permalink

Jerri Lynn,

I believe you are representing a parent, right? The attorneys working on this case that I know volunteered to do the work pro bono and I assume you did, too, but I thought the lead attorneys were being paid. In any event, you may want to consider seeking reimbursement of your expenses from one of these organizations, and thank you for volunteering.

(36) Jerri Lynn Ward made the following comment | May 31, 2008 8:51:45 PM | Permalink


I guess by lead attorneys, you mean the Legal Aid attorneys, and yes, they continue to get their salaries. I'm not sure who else would be a lead attorney. The ad litems I've met aren't getting paid and I know that there are many other attorneys out there volunteering pro bono for parents.

(37) Darleen Click made the following comment | May 31, 2008 8:55:59 PM | Permalink


I think the CPS did a remarkable job relocating the mothers and children, and then separating them for placement

That's not how the reports from the mental health professionals on the scene tell it.

Can you reconcile your statement with their declarations?

(38) DRJ made the following comment | May 31, 2008 9:09:37 PM | Permalink


I read your links. I realize the mothers and children were very sad and upset to be separated, just as any child removed from their home by CPS is upset. However, I think it's absurd to compare this to "Nazy Germany" (in the words of one of the writers). The Texas mental health workers who wrote those testimonies obviously bonded and empathized with the FLDS mothers and children and to an extent that was their job. The fact that the mothers and children are attractive, polite, and well-behaved or that they were upset at being uprooted from their homes does not change the fact that the group is led by Warren Jeffs, who preaches polygamy, underage marriage and sex, or that the group apparently practices what he preaches.

To most people, there are worse fates than living a quaint, sheltered lifestyle in a remote location with people who eat organic food, wear modest clothing, and raise attractive, polite children. That sounds like a nice life to me, too, and obviously there are many women who have willingly accepted polygamy and underage sex/marriage as the price of admission to that life. Frankly, in today's world, marriage is almost old-fashioned and many people view underage sex - even compulsory underage sex - as unimportant compared to all the problems in the world. Society sends signals every day that underage sex is acceptable: We provide sex information in the schools and, in many communities, free condoms and birth control. Teenagers can get free pregnancy counseling and abortions in most American cities, often without their parents' knowledge, and teen pregnancy is common in every city and state.

As a result, I think many people think Texas and (some) Texans are prudes for being concerned about the children at the YFZ Ranch. As for me, I don't have any sympathy for the men and women at the Ranch but I would like these children to have a chance to escape that life - no matter how quaint and nice it may seem.

(39) DRJ made the following comment | May 31, 2008 9:15:09 PM | Permalink


I "reconcile" my statement based on the fact that it's always painful to remove children from a home. Even severely abused children are upset at being separated from their parents/homes, and these mothers and children were understandably upset. However, based on the testimonies, there were apparently only two or three serious problems with children that occurred during the transition - one developed a high fever and was hospitalized, one 4-year-old hid and wasn't found for a day, and one toddler was left in a stroller for a day. I agree those are serious allegations that raise concerns but, in my opinion, it doesn't rise to the level of Nazi Germany.

(40) Darleen Click made the following comment | May 31, 2008 9:28:08 PM | Permalink


I'm aghast. You read of the treatment of women who were harassed, threatened, imprisoned in substandard conditions (no indoor plumbing, bare cots) denied access ot attorneys, denied to stay with hospitalized children, threatned that they would never see their children again, children fed substandrad diets that caused a great deal of illness, and at least one instance after the mothers were removed of an infant left without food/water/or care for 24 hours that then needed hospitalization

and you find that merely "sad"? Merely "painful"?

Not one mental health professional who had been briefed to find brainwashed zombies agreed with that assessment.

[Final paragraph deleted by blog proprietor as an over-the-top and offensive insinuation. Ms. Click, your comments are certainly welcome so long as you can keep them civil. Suggesting that public employees are going to sell these children isn't civil, it's hateful and silly. I know there are plenty of places on the internet where such vile rhetoric is typical, but this blog isn't one, even in its comments section. My bandwidth, my rules. If you take a step back and a deep breath, you will realize that rhetoric like the paragraph I've deleted won't persuade anyone not already firmly in agreement with your views, and it's likely to make anyone who's open-minded lean in the opposite direction. You're doing yourself, and the FDLS families, no favors by over-arguing. — Beldar (Sat May 31 @ 10:15pm).]

(41) Darleen Click made the following comment | May 31, 2008 9:36:42 PM | Permalink


You know, there has been quite a few occassions where the police officers I work with (and the police reports I've processed) deal instances where they have to go into a house and arrest someone. Sometimes there are children there. Could be a house where drugs were present. Could be a picking up someone on outstanding warrants. I've never ever personally encountered where CPS has swooped up every child in the house and kept them 100's of miles away for almost two months. I've seen CPS even release kids, on the spot, when other relatives show up.

In this farce in Texas, CPS refused to release children to their own non-FLDS fathers.

The treatment the women and children received at Fort Concho was unconscionable. I pray it is legally actionable.

(42) DRJ made the following comment | May 31, 2008 10:04:53 PM | Permalink


You are an unpleasant person to talk to on this issue so let's stop.

(43) Darleen Click made the following comment | May 31, 2008 10:33:26 PM | Permalink


I'm not the one making excuses for the suspension of due process.

It's not about "prude", it's about the US Constitution.

When a cop goes rogue, it damages all cops, because the public perception is "can't trust the cops."

Texas CPS went rogue and it makes it harder for people to prosecute real child abuse.

Though, not to heap all the blame on Texas, social workers behaving badly seems to happen in a lot of states. You might like to check out Michael C. v. Gresbach and find out that, surprise surprise, some judges actually believe children and parents, even in cases of alleged abuse, still retain their 4th amendment rights.

(44) DRJ made the following comment | May 31, 2008 10:41:11 PM | Permalink


I guess this means you won't be vacationing in Texas.

(45) Darleen Click made the following comment | May 31, 2008 11:00:54 PM | Permalink


My daughter's boyfriend is in Corpus Christi training on F18s.

My hope is that he is stationed elsewhere later.

I hate to think what Sheriff Doran and Judge Walther might think was politically beneficial to themselves where it concerns Roman Catholics.

(46) DRJ made the following comment | Jun 1, 2008 12:11:59 AM | Permalink


Your bitterness on this subject is causing you to make libelous statements. Please take a night off.

As for your daughter's boyfriend, we're fortunate to have young men like him to protect us. I hope he ends up in a satisfying career and a state he loves as much as I love Texas.

(47) Darleen Click made the following comment | Jun 1, 2008 12:20:02 AM | Permalink


make libelous statements

Oh my, I've LIBELED by linking to a LA Times article.

It ain't bitterness, DRJ, it is outrage at injustice. I don't dedicate a good portion of my life working in the judicial arena of the government to see the reputations of my peers and coworkers sullied by bigots on a search and destroy mission using the figleaf of "but it's for the children."

Yeah, we must destroy the children in order to save 'em.

(48) griefer made the following comment | Jun 1, 2008 1:14:19 AM | Permalink


Well, darleen...this underaged girl is in FLDS custody.
Perhaps she should be returned to the FLDS, perhaps to the custody of her older brother Dan Jessop who apparently allowed her to be married at the age of 12 to then 52 year old Warren Jeffs, the Prophet, at YFZ?

(49) griefer made the following comment | Jun 1, 2008 1:15:49 AM | Permalink

oops, sry she's in CPS custody.

(50) DRJ made the following comment | Jun 1, 2008 1:15:58 AM | Permalink

"I don't dedicate a good portion of my life working in the judicial arena of the government to see the reputations of my peers and coworkers sullied by bigots on a search and destroy mission using the figleaf of 'but it's for the children.'"

So now Texans are bigots.

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