Why a Texas Appellate Court Seriously Erred

Last week, the Third Court of Appeals in Austin, Texas, issued a very significant – and very seriously mistaken – ruling, In re Sara Steed et al.

The case involved 38 women from the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), who challenged the state’s removal of all the children from their FLDS compound in Eldorado, Texas when authorities entered on the basis of reports that a 16-year-old girl was being physically and sexually abused.

They presented their dubious challenge as a petition for a writ of mandamus – an extraordinary remedy that is only rarely granted. Yet the court ruled in favor of the women, and against the Texas child protection authorities.

That decision was not just wrong, but wrongheaded – for it applied the opposite approach to questions involving child abuse and religious entities than it should have: the court focused on religious belief while downplaying the actual conduct at issue. Fortunately, the state is now appealing to the Texas Supreme Court, and rightly so.

I wrote about the constitutional issues involving the removal of the children by Texas’ Child Protective Series (CPS) in a prior column. The appellate decision, though, did not address constitutional issues. Rather, it only addressed the Texas law governing the removal of children from their parents. In this column, I will address that separate set of legal questions, and explain why this decision was indefensible.

To begin, the decision was poorly timed, for two reasons. First, as the state argues in its pending appeal, the judges should have waited for the soon-to-be released DNA results, which are necessary to learn which children belong to which adults – and thus may also reveal provide evidence regarding which children are the victims of or the result of statutory rape. Given the intense intermarriage practices within the organization, the results will also clarify any questions regarding incest.

Such testing was necessary because FLDS members and the medical personnel who attend at their births routinely fail to file birth certificates and, during these proceedings, children and adults alike have been less than forthright about their identities or family relationships. For the court to pretend that it knew with certainty which children belonged to the women who filed the writ is irresponsible, given the facts. Moreover, reaching a decision about which children belong to which parents before DNA results are released only rewards this pattern of deception of legal authorities.

Second, the lower courts had already begun individual hearings to reunite some parents with their children, under CPS family service agreements – thus mooting the appeal with reference to these children. Those lower court judges, with the benefit of individualized evidence, were in a far better position to assess the potential harm to each individual child and to craft terms of reunion in a way so as to protect the children.

In fact, at the time the appellate judges were issuing their decision, those hearings were leading to the release of 12 children to their parents – but those releases, importantly, were based on a careful assessment of the facts for each child. Importantly, too, the children were not permitted to be returned to the compound, and the parents had to agree to ongoing oversight by the state (as would any other parent in similar circumstances).

The Relevant Texas Law Requires Evidence of Danger to the Children, and There Was Copious Evidence of That

There are three criteria under Texas law that govern whether CPS may remove children from their homes. Here is the most relevant language from each criterion, and the language on which the Texas appeals court focused: There must be (1) “a danger to the physical health or safety of the child”; (2) “reasonable efforts, consistent with the circumstances . . . were made to eliminate or prevent the child’s removal”; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger. . . .”

Let’s begin with the first and third factors, invoking danger to the children. Surely, evidence of ongoing felonies must weigh very heavily here – and there was convincing evidence two had been committed repeatedly in the compound: child rape and polygamy.

Texas law makes polygamy a felony -- with its degree determined by the age of the new, additional spouse. The felony is third-degree if the spouse is an adult, second- degree if she is over 16, and first-degree if she is under 16. (In this respect, then, the anti-polygamy laws significantly reinforce the laws against child sex abuse and make a strong statement about the state’s view of underage marriages.)

Felonies are serious business under Texas law. As a general matter, a first-degree felony is subject to imprisonment "for life or for any term of not more than 99 years or less than 5 years"; a second-degree felony entails imprisonment "for any term of not more than 20 years or less than 2 years,” and a third-degree felony requires imprisonment "for any term of not more than 10 years or less than 2 years." These are the kinds of sanctions one would have thought a court would have taken seriously, but the appellate court actually ignored the law of polygamy as though those felonies were simply beside the point.

Was there enough evidence to state that felonies had been, and were being, committed in the FLDS compound? Absolutely. The lower court had so found, and the appellate court was legally required to accept those findings unless it saw an “abuse of discretion” on the lower court’s part. Here, the lower-court findings, far from constituting an abuse of discretion were well-substantiated.

Based on the sect’s own written records, there were numerous polygamous marriages in the compound, and plenty of marriages between underage girls and much older men. Moreover, even the appeals court acknowledged evidence that “[t]wenty females living at the ranch had become pregnant between the ages of thirteen and seventeen.” Girls at the compound had told investigators that “there was no age too young for girls to be married.” Evidence indicated that the members of the sect delegate to a single individual – the reigning prophet -- the task of choosing who will marry whom, which leads to the inescapable conclusion that the community’s marriage and sexual practices constitute a seamless web as opposed to a collection of independent nuclear families. (While a few one-wife families exist, only younger men are likely to have a single wife, as they wait for the blessing of at least three to get a preferred spot in heaven.)

How the Appellate Judges Trivialized Rampant Sexual Abuse and Numerous Felonies

How could the appeals court ignore such compelling facts and conclude there was no real danger to all of the children? No one will ever know the actual motives of these three Republican judges, but the opinion strongly suggests unthinking deference to claims of religious and parental “rights,” even though those claims do little more than cloak criminal behavior that puts children at risk.

First, the judges treated past felonies as if time had erased them – even though these crimes went unprosecuted and unpunished. For instance, they gratuitously asserted that of the 20 underage mothers (and, thus, statutory rape victims) identified, 15 are now adults. Yet that does not negate that these women were victims of crime, that when the sex occurred they could not legally consent, and that the other 5 continue to be victimized.

This is just another version of the message so many victims of child sex abuse hear: they should just move on with their lives and leave the rest of us alone, an antiquated attitude wholly inappropriate for modern-day judges.

Second, the judges tried to magically convert statutory rape into marital intercourse, citing the rule that if a minor is legally married, she (or he) can have “consensual sexual intercourse.” The problem is that for the underage marriage to be legal, the marriage has to be sanctioned by either parental consent or court order. Where was the proof that either existed here? And even if it did, what of the many polygamous marriages, which no parent or court could sanction, and in which underage girls played a part?

More fundamentally, we must ask what, exactly, led the appellate court to try to justify this many child rapes in such a small community? Or the pervasive grooming of boys to be child rapists? Just how many children have to be sexually abused or groomed to rape in order to pass the appropriate threshold of “danger” according to these judges? I would have thought adult males having sex with 20 underage girls (repeatedly, given that some of them have more than one child) out of this small, close-knit community passed all standards of decency and easily justified bringing all of the children out of the enclave. If not 20, how many?

The Fallacy Behind the Court’s Opinion: Absolute Freedom of Religious Belief Is Guaranteed, But Is Never An Excuse for Crime

The appellate judges chastised the court below for taking into account the beliefs of the FLDS, but the existence of religious belief does not erase the illegality of conduct.

There is an absolute right to believe whatever you want under the First Amendment. No court or other government entity may punish a group for its shared beliefs, whether they be religious or secular.

For example, if a group believed in polygamy and child brides and bemoaned the laws against those practices, but still abided by the law, no legal sanction could be applied. They could proclaim their beliefs in every legislature and from every rooftop, and no one could make them stop. This is one of the great cornerstones of the American experiment with religious liberty.

When such a group crosses the line from vocal objection to legal violation, though, that absolute right disappears. In its place is the rule of law. While religious beliefs are protected from religious discrimination, they are no excuse or defense to the application of laws like those governing marriage, crime, and child abuse.

For this reason, the appellate court should have been focused on the conduct alleged, regardless of the belief that motivated it, and regardless whether belief was mentioned below. Had it focused on that conduct, as was its duty, then the court would surely have been led to the opposite conclusion, and would have upheld the earlier decision approving the removal of all children from this troubling compound.

For those who may still question the belief/action distinction (as I did at one point in my career), I think it is worthwhile to consider the following two hypotheticals, which strongly prove the value of that very distinction (and why CPS acted appropriately when it removed all of the children):

Hypothetical Number One. A group of 100 adults and 400 children live together, in a remote location with little contact beyond their own community. None of them are religious. Rather, they have a secular belief that men live longer if they have sex with multiple women, and especially if they have sex with girls as soon as they start menstruating. A man’s future health is confirmed most clearly by the birth of a child, which means women are forced to produce as many children as possible from adolescence through old age. Within the community’s practices, boys are groomed to be men with multiple spouses and child brides. A single “medical” leader determines which female partners will most improve each man’s health. In short, they practice top-down polygamy and engage in persistent statutory rape. The authorities get a report that a 16-year-old girl is being abused. When they enter and see the underage pregnant girls and the girls with children of their own, which children should they leave behind?

Hypothetical Number Two. A group of adults engages in child prostitution and lives in an isolated enclave. They do not practice polygamy; in fact, the adults do not get married at all. Each adult might sleep with another adult at some point, but never for any period of time that would be recognized by the state as even a common law marriage. They do have as many children as possible, though, to keep the business going. The kingpin determines where the girls are sent after they reach adolescence – most are transported within the United States or up to Canada, and made available for whatever men are interested. Some are kept on the premises for more child-bearing. Girls generate the most income, so boys are either abandoned or they stay within the group, spreading their sperm to as many girls and women as possible, to produce the most children possible. Here, we have rampant child abuse, though no polygamy. Local authorities get a tip that a girl is being abused. When they arrive and find records establishing the above facts, they have to decide which children to take and which to leave behind. Which child would you leave behind? How would you sleep at night if you left one behind?

The Texas courts should be looking at the conduct of the FLDS, just as authorities would in the above scenarios. No matter what they believe, their actions require state intervention for every child involved. Under Texas law (and basic common sense), every child is in danger in both the real sect and in the two hypotheticals, and state officials should be given the latitude necessary to secure their safety. The facts establish that the FLDS is a fundamentally lawless group, which has no respect for marriage laws, rape laws, child abuse laws, or even the legal requirements governing birth certificates. (Others who have escaped from the organization detail welfare fraud and child labor law violations as well.) As currently constituted, they offer no environment for children, period.

I don’t believe that the Professor was limiting her discussion to free speech, since she specifically mentions beliefs.

As I said previously, she mentioned religion, and that presumes beliefs. However, her screed clearly only protects speech, not actions. That's why I concluded that she would have the 1sr Amendment protect speech, not religion.

And, as I also said previously, I agree that when inalienable right collide, one of them has to yield.

Last, it sounds like you've lost sight of the debate point over laws ands treaties. The 1st Amendment says Congress can't pass certain laws. Defending against my assertion that polygamy laws were passed after polygamy religions were already established in the US, you claimed that the 14th Amendment allowed that, I assume because of equal protection. I then responded that Amendments are not laws passed by Congress. IOW, Amendments do not suffer the same restrictions on Congress as laws. Same for Treaties. That was the context.

BTW, the first federal polygamy law was passed before the 14th Amendment was ratified.

Actually it was two different Courts totalling 9 judges, I believe.

Three-judge panel on 3rd Court of Appeals and six Texas Supreme Court judges...yes, what you believe is correct.

I'm well aware that our governments should be, must be, reined in when they violate our freedoms. They've already crossed that line and, so far, the sheeple too often remain unconcerned.

Along with that, a civil society also requires laws to maintain order. Yet even laws are subject to debate...a good law? a bad law?

My understanding of the FLDS is that abuse of human beings born into this cult begins in early childhood. The abuse does not begin when a young girl is told that she will marry 45-year-old Obadiah or 53-year-old Ezra, or even 20-year-old Luke the day after tomorrow.

The imminent abuse, from all I've heard and read, begins at birth, and also includes the male children.

Your demeanor gives the impression that you are a family law attorney. Are you? Whether or not, your arrogant egotism comes through in many of your posts.

Guess you're the only one here knows everything!

Borrowed from another forum, you'll obviously damn the writer to the pompous "thick-headed" compartment of your brain.

They are definitely crying religious persecution. What kind of religion endorses water torture for infants? To be fair to all FLDS, perhaps it's not the entire religion, maybe it's the select, twisted individuals who use their religious beliefs to inflict torture on others. Carolyn Jessop, describes in her book, "Escape", how her husband, Merryl Jessop (her husband of 17 years) used water torture on their babies. Carolyn was the 4th wife of Merryl Jessop, married him at 18 (he was 50). She bore him 8 children. She, along with the other wives were abused in all forms. However, the worst form of control came in abusing the children. Apparently, Jessop would spank the infant until it screamed in pain, then he would hold the infant under tap water for a minute or so until the baby couldn't breathe, then spank again, would repeat this process until the infant was ready to pass out, could c of religion endorses water torture for infants? To be fair to all FLDS, perhaps it's not the entire religion, maybe it's the select, twisted individuals who use their religious beliefs to inflict torture on others. Carolyn Jessop, describes in her book, "Escape", how her husband, Merryl Jessop (her husband of 17 years) used water torture on their babies. Carolyn was the 4th wife of Merryl Jessop, married him at 18 (he was 50). She bore him 8 children. She, along with the other wives were abused in all forms. However, the worst form of control came in abusing the children. Apparently, Jessop would spank the infant until it screamed in pain, then he would hold the infant under tap water for a minute or so until the baby couldn't breathe, then spank again, would repeat this process until the infant was ready to pass out, could cry no more. This was a way of "breaking them down", so that they would have fear of their father/authority from an early age. He also did it starting in infancy because they would unlikely be able to remember what happened to them; they would only remember the effect and conditioning. Carolyn said that this was worse for her to endure than her own punishment/torture that would be inflicted on her. This sort of thing, along with pitting each wife against each other, is what kept the whole sham going for so long (and it still goes on). Carolyn Jessop goes on to say that she happened in Colorado City, AZ, before Warren Jeffs started the YFZ Ranch in Texas. She does not think that she could have escaped if she was on the compound in El Dorado, Texas. Now we have these are the same nutcases who allowed their babies to go through water torture, child rape, and God only know what else, repeating, "We want our children back, they took away our children." If these children go back to the same situation, this cycle of brainwashing and abuse will never end. When one reporter asked why the children couldn't identify their own mother, the answer was because the children were raised in the community with many mothers. The women were assigned to different groups of children throughout the week/months, so essentially it's not like these women were raising their own biological children exclusively. This must be the reason why they keep repeating, "our children", instead of "my children." I found it amazing how every, single, human right has been stripped away from them, even the right to claim their children as their own and the right to take care of their own biological babies. Their rights were indeed stripped from them; however, this happened a long time ago, and it was not by the state of Texas. Their rights as a mother were stripped away the minute that their child became a part of the entire community and belonged to the entire community; the mother had her rights as a parent taken away. These children can be assigned and re-assigned to different mothers and fathers at anytime, as the "prophet" directs. And of course, none of it is wrong because the prophet gets his orders directly from God. Can we even comprehend the level of mind control and brain-washing that it would take to have us believe and buy into this sort of thinking? That we would give our children away to a community, would let our barely pubescent daughters "spiritually" marry and have sexual relations with old men, would endure any and all forms of abuse, all in the name of a religion? They say that they are being persecuted because of their religion. I agree with them. They are being persecuted by their own religion, and they're doing it to themselves. Can you imagine one day coming out of this, waking up from this zombie-like stupor, and realizing that your whole life of torture, pain, and abuse was all due to the fact that you willingly let someone do it to you? I think when that happens, some of these people will have a complete nervous breakdown. I realize that these people, these women, most likely, were brought up like this from infancy, came through generations of this type of systematic abuse, so it is understandable why something like this could happen. Someone commented that when flying over the grounds in El Dorado, Texas, there were no swing sets, no sandboxes, nothing that would indicate that children lived there. So they have no visible vestiges that children live there, but they do have guards stationed at various towers. What is this, a housing complex/compound or a maximum security prison? Something is very wrong here. ---------------------------------------------------------------------------

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Why a Texas Appellate Court Seriously Erred In Concluding that Texas Child Protective Services Should Not Have Rescued All of the Children at the FLDS Compound