Patterico's Pontifications

5/22/2008

FLDS Update: Officials Had No Right to Take Kids, Court Rules

Filed under: General — Patterico @ 4:46 pm



Here’s the latest:

A Texas appeals court said Thursday that the state had no right to take more than 400 children from a polygamist sect’s ranch, a ruling that could unravel one of the biggest child-custody cases in U.S. history.

The Third Court of Appeals in Austin ruled that the state offered “legally and factually insufficient” grounds for the “extreme” measure of removing all children from the ranch, from babies to teenagers.

The state never provided evidence that the children were in any immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said.

It also failed to show evidence that more than five of the teenage girls were being sexually abused, and never alleged any sexual or physical abuse against the other children, the court said.

More at the link.

47 Responses to “FLDS Update: Officials Had No Right to Take Kids, Court Rules”

  1. The court adopted my ill-received (by SPQR and others)core theory that there was zero imminent physical harm alleged or proven to the overwhelming number of children. None of the boys and all pre-pubescent girls, which made up over 400 of the 460 kids seized, were shown to have been abused or in imminent danger of such. Who is the ignorant “out of step” poster now?

    I said I was “outraged” and I was mocked in here. Now the Appeals Court said that Texas acted in an “extreme” manner. In judicial speak, is that not equivalent to “outrageous?” Ballpark? How about it, SPQR?

    Texas and Texas CPS, and all prosecutors and their offices, have had substantive control of the children for six weeks now. Where is the evidence of abuse?

    The burden of “proving” the actual family membership now MUST fall on Texas – not the aggrieved families. Reunions need to begin ASAP.

    If Texas wants to continue the separation of the 16 (yes, we’re down to 16 of an original 50-60) alleged victims of statutory rape, let them bring the evidence before the bar. I have no problem with proven specifics. While they are at it, perhaps they can go after the thousands of fathers of babies who were conceived by underage Texas girls??

    I, for one, cannot wait to witness an epic CYA effort by/on behalf of Texas and Texas CPS. This is McMartin, or something very close to it, all over again.

    Ed (6b8782)

  2. Aces of Spades links to a source for the opinion but I am too malware shy to open it.

    nk (d7f5f5)

  3. Hope you don’t separate your shoulder pounding yourself on the back there, Ed.

    JD (5f0e11)

  4. 16 victims of statutory rape should not be a number that anyone should be proud of.

    JD (5f0e11)

  5. Care to be more precise with your implication, JD?

    Ed (6b8782)

  6. statutory rape is not the same thing as forcible rape. anybody who has sex with an underage girl is a statutory rapist. their numbers are legion. there are likely statutory rapists commenting right here on this blog.

    i believe that when all the evidence is in, it will be determined that the original phone call which triggered all this came from someone associated with the texas justice system.

    assistant devil's advocate (69a247)

  7. #2 nk:

    … I am too malware shy to open it.

    nk, ran it through a couple of filters to try to get rid of anything that shouldn’t be in it, and you can see it as a pdf here: Mandamus Decision.

    EW1(SG) (84e813)

  8. thanks! EW1,

    Ed,

    chill, man. This is a serious gray area. The appellate court claims that there’s no abuse when we have proof of scores of rapes.

    Texas caught a prank call from an anti-mormon activist and did their good-faith best to stop it. putting themselves and no doubt their budgets, through the ringer. I don’t think they wanted to screw these people over just because they are weirdos.

    Now that the dust has settled, the courts can take a closer look, but I’d be pretty outraged if a bunch of raped children are returned to these creeps. Much of the lack of evidence is because these people are refusing to tell their accurate names or give their accurate ages. It’s not like they are innocent victims.

    Jem (4cdfb7)

  9. I’ll not chill when a State seizes, without basis, over 400 children.

    I’ll not chill when thousands of rapes (as defined by virtually all jurisdictions) occur and nothing is done. No investigation, no nothing.

    By all means, let’s go after, and go HARD, at the rapists and their accomplices. All of them. FLDS, or, as CCR might say, a “Senator’s son.” Either these young girls, by definition, are incapable of consent in all cases, or they are capable.

    The public sanctimony over the FLDS sickens me and I’ll not chill.

    Ed (6b8782)

  10. Thank your EW1(SG).

    nk (d7f5f5)

  11. Ed, you are evidently not reading the actual news of the decision. The appellate court saw evidence of abuse of some children. The appellate court appears to be saying that CPS could not treat all of the compound as if it was one household to which that evidence applied. That’s not “outrageous”. You seem to want to exaggerate the appellate court conclusions. Not to mention you seem to want to redefine what the court said. The adjective “extreme” is being used to describe the remedy of removal of children as a generality.

    ADA: “here are likely statutory rapists commenting right here on this blog” — so you are adding rapist to your litany of insults of people who disagree with you to match with homophobe and racist – your previous favorites.

    SPQR (26be8b)

  12. This Texas case is far from the first time that CPS has over-stepped legitimate exercise of it’s power. Even so, I think this is the time to say, I told you so!

    Brad (4a20e3)

  13. Has CPS filed a notice of appeal?

    Another Drew (8018ee)

  14. I don’t think they wanted to screw these people over just because they are weirdos.

    It would seem that that’s exactly what they did – that, of course abetted by the usual Nazi SS-like mentality and authority of “Child Protective Services”, which mostly seems to be quite satisfied with screwing people over, as far as I can tell.

    Otherwise, why didn’t the “Authorities” develop some actual, legally obtained evidence, via reliable witnesses, State records, or even infiltration, instead of immediately launching an obviously pre-prepared military assault based solely upon a [fake] call – which they didn’t bother to investigate at all prior to their full-bore attack – coming from an allegedly injured person who was also even treated for her injuries.

    What else explains the mismanagement by the “Authorities”, simple ineptitude?

    J. Peden (d5891b)

  15. Frankly, this is beginning to sound like a repeat of the Duke Lacrosse Rape case. People who have no direct knowledgeof the matter claim that

    “we have proof of scores of rapes.”

    “WE” have no such thing. We have claims of CPS that such and such occurred. They had to make these claims to seize the children. Now the court has taken a step back and said “wait a minute.” There is no evidence of “imminent physical harm” which would surely not be the case if “scores” of girls were being raped.

    Moneyrunner (86ab55)

  16. How were they going to do that, J.Peden?

    SPQR (26be8b)

  17. From the decision, pg. 8 “There is simply no evidence specific to Relators’ children at all except that they exist, they were taken into custody at the Yearning for Zion ranch, and they are living with people who share a “pervasive belief system” that condones underage marriage and underage pregnancy.”

    SPQR – show me where the court found evidence of some abuse by the Relators.

    Texas, at large, condones underage pregnancy. As to marriage – How can there be a marriage if it is not duly constituted by a recognized/licensed individual invested with such power?

    If we get away from the legalese, which is fine by me now that the Court of Appeals has compelled Texas to finally show cause, I’m happy to stick with “outrageous” to describe the behavior of the State in seizing 400+ kids without the slightest evidence that comes anywhere near the test prescribed by THE LAW. If you choose to not believe it is outrageous for such a seizure to occur, that is your perfect right. Good luck with that.

    Ed (6b8782)

  18. Ed – Thought I was pretty clear. 16 out of 460 is all they can prove, now. That is 16 too many.

    Ironic part is that I agree with the Court. But the over the top rhetoric from some is really off-putting.

    JD (5f0e11)

  19. “The appellate court claims that there’s no abuse when we have proof of scores of rapes. …I don’t think [FDLS] wanted to screw these people over just because they are weirdos.” –Jem

    Ah, you see that is where you have it very wrong, if the Appellate court is to be believed. Supposedly FDLS did NOT provide evidence in court of “rapes” or any evidence of other kinds of physical harm or threat to the children. What FDLS did instead was to claim the ‘belief system’ of the polygamist’s was dangerous! In other words, the children were removed just because FDLS damned the parents as “weirdos”.

    lots of good stuff over at volokh.com

    Brad (4a20e3)

  20. Brad is right. Judge Walther’s mass hearing was very disappointing in very many respects.

    nk (d7f5f5)

  21. Texas condones underage pregnancy. Hyperbole often?

    JD (5f0e11)

  22. One of the interesting things posted at Volokh is the assertion that many of the so-called “minors” not only were of age, but could prove it. And were not pregnant, had not been pregnant.
    But CPS ignored the info.

    Richard Aubrey (f3f7aa)

  23. You mean Texas law enforcement overreached? I’m shocked? Anywhere else, I would have thought it possible, but not Texas.

    This is why I can’t label myself a conservative or a liberal. Here, we had liberals happy with the government overreaching because it involved weird religious people teaching their beliefs to kids, and conservatives happy about the government overreaching because it involved some unusual sexual behaviors. And those of us who said “wait a minute . . . this is overkill” got branded as heretics by both sides.

    Phil (0ef625)

  24. JD – how many felony prosecutions of statutory rape occur in Texas in a given year? Contrast that with the thousands of actual pregnancies, let alone the number of acts that do not result in pregnancy, yet many, many folks “know” are ongoing. What are the national stats? 13% (Guttmacher) of females 15 and under have had intercourse.

    And for the record, zero rapes by any individual have been proven. Also, one is, indeed, too many.

    Finally, given the beating I took in here, spare me your “off-putting” sensibilities.

    Ed (6b8782)

  25. Thank god the Apellate court is applying the brakes. The witch-hunting hysterics engulfing this case were a travesty of justice. Nancy Grace, in her role as Witchfinger General at CNN, is having a stroke because of this news from Texas!

    Brad (4a20e3)

  26. Of the 31 people the state initially said were underage mothers, 15 have been reclassified as adults, and one is 27.

    Fox

    Adult women illegally imprisoned for six weeks and counting

    I would love to see Texas CPS sued to high heaven over this.

    Darleen (187edc)

  27. #21 Richard

    It wasn’t just CPS doing the ignoring

    The hearings have produced many surprises.[…]

    A lawyer for a 14-year-old girl on the list said she is not pregnant, as the Texas DFPS had originally claimed.

    “My client does not have children, is not pregnant. She’s the youngest on the list of disputed minors,” Andrea Sloan said in court.

    The judge hearing the case objected, saying it was not relevant to the status hearing. Sloan pressed forward.

    “The department is communicating to the public that there are 14-year-olds who are pregnant,” she said.

    CPS was quick to try this in the court with inflated numbers of “minors” and salacious lies.

    What angers me, too, is this obvious dishonesty makes it more difficult to prosecute real child abuse. I mean, who believes Texas CPS has any credibility at all?

    Darleen (187edc)

  28. As I read the decision the court did not say there were 16 cases of abuse. They said there were 5 girls who were pregnant who were alleged to be between the ages of 14 and 17 and that the circumstances of the pregnancies and the marital status of those 5 was unclear.

    There area an additional 15 girls who were alleged to have become pregnant between 13 and 17 but they are all adults no. The girl who was alleged to have become pregnant at 13 is now 22.

    Since the state apparent;y can’t distinguish between 17 year olds and 27 year olds and tell whether or not a teenager is pregnant I am not too willing to give them the benefit of the doubt here.

    chad (582404)

  29. I suppose it’s possible that the fourteen year old was pregnant at the time of the raid, and is not now. She would not be the first teenager to miscarry very early in a pregnancy. For CPS to claim that this is not relevant is, well, perhaps overly relevant — as it does not sound like reality-based intervention.

    It’s a Texas-sized mess. At least there have not any shootings, by anyone!

    htom (412a17)

  30. She would not be the first teenager to miscarry very early in a pregnancy

    But she’s been in CPS custody all this time. CPS would have had proof of her pregnancy …

    unless it was just a Nifongesque claim for the media.

    Darleen (187edc)

  31. What a shocker.
    Underage teenage girls having sex and getting pregnant!
    Isn’t that now mandatory behavior in California High Schools?

    Perfect Sense (b6ec8c)

  32. I am not sure where the figure for 16 statutory rapes comes from. I think it’s closer to half that, if it turns out they all happened in the last 32 months and in Texas (Texas changed the laws less than 36 months ago), and none were married.
    And the 13 year old happened in 1997 or so- who knows what state or what the laws were then. I am not sure how you can take away a 22 year old’s children because of something that happened to her neighbor in another state when the 22 year old five years old.

    Of the 26 ‘disputed minors,’ the state is actually now down to…. 8.
    And the main reason those 8 are still on the ‘disputed minors’ list is because they haven’t had their hearings yet. The Attorney for the 27 year old says that the state did not have any new information when they changed their minds- she used the same I.D. she’d showed them the first day at the ranch. The state questioned several of these adult women without an attorney even though they asked for one- the state told them since they were minors, they weren’t entitled to attorneys.

    Not one single ‘disputed’ minor who has had her hearing has been shown to be a child.
    Of the two ‘pregnant minors’ they had in custody, one is 18 and one is 22 years old- and both girls say they showed CPS their identification at the beginning of the raid and they were told they were liars.

    The only think clearly ‘pervasive’ in this case appears to me to be CPS’ duplicity.

    Elsewhere, I’ve seen people actually say things like, “I don’t care if the Constitution was broken. These people [FLDS] were breaking the law.”
    That is deeply disturbing. Particularly when the teen pregnancy rate at the ranch appears to be fairly low- consider- they have no pregnant underaged girls. And I am pretty sure they do not practice birth control. That doesn’t sound like evidence of a ‘pervasive sexual abuse’ to me.

    DeputyHeadmistress (adea36)

  33. When this first broke I complained on a comment to this site that the state didn’t have any evidence that anyone other than maybe, that’s maybe, some girls between 12 and 17 were possibly at risk of imminent harm. I worked as a Juvenile Court Prosecutor for 16 months in Illinois and under Illinois law you can’t take a child away from a parent without giving them what is called a “shelter-care” hearing. At the shelter care hearing the State has to prove by a preponderance of the evidence that the child being taken from the parents was in imminent danger of being “abused.” These Texas CPS workers didn’t have anything close to this standard of proof and the three panel appellate court said so. Note: the decision was not 2-1, it was 3-0. I also said then that child rape in one of the most horrible crimes and should be punished, but that the correct avenue for that would be criminal prosecution of the alleged rapist, not a civil juvenile case to take away the children.
    If the CPS appeals this to the Texas Supreme Court I predict that the petition for re-hearing (or whatever they call it in Texas) will be denied and they won’t even hear the appeal. That’s how bad this Judge’s original decision was when she OK’d CPS taking all these kids. I repeat so it is clear, Prosecute the Bastards that raped any under age girl, but leave the innocent little ones alone. I think these mothers will have an excellent civil suit against Texas for clear and monumental violations of the mother’s civil rights.
    Here’s what I think really happened: CPS personel didn’t like the FLDS people and wanted to do something against them, but didn’t have any probable cause. So when they get a crank call that they don’t even bother to check out where the call came from (ever heard of a phone trace) their prejudices against the FLDS compelled them to take drastic action and they committed an armed military style raid on these people with law enforcement personel openly carrying automatic weapons. Do you think that might have scared some of the little ones? Do ya THINK! Removing children from the home is an extremely drastic action. Now we find out many (about 1/2) of the girls they said were underage, weren’t even underage and the girls claim that they showed CPS thier birth certificates proving thier age (27 in one case) but CPS dismissed them out of hand as being “liars” which clearly shows the CPS personel’s prejudice. CPS blew it big-time and the Judge blew it big-time (yes Big-time is actually a very important legal term: that is, in legal terms: NO rational Basis in fact or law to support the decision.) The appellate court just slapped this Judge and CPS in the face, and they deserved it.
    Think about the little ones. The Juvenile system is supposed to look out for “the best interests of the child.” If you have kids you’ll know what I’m talking about when I claim that CPS did much greater emotional harm to these childrren than anything living in their unusual “world” did to them. If someone took my 6 year old away from me I’d go ****ing nuts! Ripping these children from their Mothers and sending them out in small groups all across the state was inexcusable. Imagine being a 4 year old who is taken by force away from your Mommy. What goes around, comes around. You wait and see, Texas is going to end up owing these mothers lots and lots of money. So what should be done right now? They should immediately return these children to their Mothers like YESTERDAY! And they should open a criminal investigation into allegations of child rape. I wonder what the national average of girls having under-age sex is compared to the FLDS rate of under-age sex? I bet the FLDS number is lower than the national average. My $0.02.

    J. Raymond Wright (d83ab3)

  34. The state’s blatant lies and thuggery are coming out in the open now. They’ve lied and lied from the very beginning. First to justify the raid, now in a CYA maneuver to insulate themselves from the flood of lawsuits they know is coming.

    They can’t tell that a 27-year-old is an adult? But these professionals are just who you want “protecting” children…

    CTD (7054d2)

  35. They’ve lied and lied from the very beginning. First to justify the raid,

    It has been suggested that a person from Colorado, an anti-FLDS activist made the initial phone call. I have not seen where the State did so. Could you explain, CTD?

    JD (75f5c3)

  36. See, the real “child abuse” here involved the lack of opportunity of the “underaged” to have access to Planned Parenthood, which would have, voila, made any such sex not criminal!

    J. Peden (86e64c)

  37. The state’s inflated numbers have been punctured, and things look really bad for them.

    There are ONLY FIVE Under-aged Girls:

    The Texas Department of Family and Protective Services had all the power in the world to structure status hearings held this week in any order it wanted. It kept telling us, the media and the public, that there were 31 girls between the ages of 14 and 17 who were pregnant, mothers or both.

    Now we know the truth: There are only five girls in that group. All but one are or will be 18 this year. One gave birth when she was 17, three when they were 16. One is pregnant.

    I kept asking the state for a breakdown by age of the 31 girls, the 60 percent, it claimed were pregnant or mothers. They refused weeks ago and still haven’t done it.

    Now we know why.

    DeputyHeadmistress (adea36)

  38. “Elsewhere, I’ve seen people actually say things like, “I don’t care if the Constitution was broken. These people [FLDS] were breaking the law.”

    That is deeply disturbing.”

    Yes it is, and in a somewhat different manner, I’m glad that REAL judges were looking at the facts the state had, or rather did not have.

    This from a NYT article.

    “It was not the first time a raid on polygamists may have backfired. In 1953 Arizona authorities under Gov. Howard Pyle raided the fundamentalist community of Short Creek, which is now Colorado City, Ariz., and Hildale, Utah, taking about 160 children into state custody.

    But the custody ruling was overturned on appeal in 1955 after lawyers for the children argued that they were denied adequate legal representation. Most of the women and children then returned to Short Creek to join their husbands, who had pleaded guilty to misdemeanor conspiracy to commit unlawful cohabitation and were sentenced to one year on probation. Governor Pyle lost the 1954 election.

    Mohave County Judge J.W. Faulkner later said he made a legal “blunder” during the custody hearings, writing after his retirement in 1955 that the reversal “will inevitably give new life to the cause of polygamy, and prolonging the fight for another 50 years.””

    http://www.nytimes.com/2008/05/23/us/23raid.html?_r=2&th=&adxnnl=1&oref=slogin&emc=th&adxnnlx=1211541334-VlgFzs/r8MJ9XH7Exm9dXA&oref=slogin

    This case will also help fund the organization for another 50 years, even with $5 a gallon fuel!

    For all you budding “Nifongs” out there, remember this, “pulling kids and asking questions later” is okay until it is your kids.

    TC (d16524)

  39. #34

    I claim that CPS did much greater emotional harm to these childrren than anything living in their unusual “world” did to them.

    IMO, from their unreasonable conduct we can conclude that the CPS hated these kids almost as much as they hated the FLDS parents.

    Take a breastfeeding toddler from his/her mom, ship ’em hundreds of miles away and then hemmm-hawwww, delay and tell mom, “you might get you kid back by April 2009, IF you do everything we tell you and we’re going to be making it up as we go along.”

    THAT is child cruelty.

    Darleen (187edc)

  40. This whole case shows why the States tolerate polygamist sects. Prosecution is “messy” and the media often come out with sob stories about women and children being separated. The reality is, the polygamist cults are hot houses for abuse and child marriage to old men, young boys being thrown out.

    Either the state will stop it, or it will not.

    The court decision guarantees the state will not stop it.

    Polygamy is here to stay, it’s been effectively legalized (no other state agency will EVER investigate much less prosecute such cases). This is the political reality.

    It is likely that evidence of statutory rape (i.e. children born of then-underage mothers) will be borne out by the DNA testing, which will reveal the rapists, i.e. the fathers.

    If a woman is now 22, and conceived a child at say 14 with a then 55 year old man, is that not statutory rape? Have the statute of limitations run out?

    Even if they have not, it’s likely that all prosecutions will be dropped.

    Welcome to polygamy folks, it’s here to stay.

    Jim Rockford (e09923)

  41. How were they going to do that [develop evidence], J.Peden?

    Comment by SPQR — 5/22/2008 @ 7:22 pm

    I assume your question to mean that they had no evidence. Which was my point.

    J. Peden (844314)

  42. Wrong assumption, J.Peden. The question was as written, how were they going to get reliable witnesses, infiltrate a closed cult community or obtain records without entering the compound? And for that matter, why should they refuse to act on the phone calls in the meantime?

    SPQR (26be8b)

  43. The question was as written, how were they going to get reliable witnesses, infiltrate a closed cult community or obtain records without entering the compound? And for that matter, why should they refuse to act on the phone calls in the meantime?

    So a full blow military style raid is justified with one phone call?

    Gerald A (e25345)

  44. So a full blow military style raid is justified with one phone call?

    Especially since said phone call turned out to be fake?

    Paul (de3f43)

  45. Everybody must check out this post by Beldar. The comments especially.

    nk (d7f5f5)


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