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Why a Texas Appellate Court Seriously Erred
FindLaw ^ | May 29, 2008 | Marci Hamilton

Posted on 05/29/2008 9:43:07 AM PDT by MizSterious

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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


By MARCI HAMILTON
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Thursday, May 29, 2008

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.

Why the Decision Was Not Only Wrong, But Premature

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; News/Current Events; US: Texas
KEYWORDS: 3rdcircuit; cpswatch; flds; judiciary; texassupremecourt; yfz
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To: lady lawyer

see #19 - CPS was citing the wrong law, re emotional endangerment.


21 posted on 05/29/2008 11:03:34 AM PDT by patton (cuiquam in sua arte credendum)
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To: MizSterious

Go here to read a Publishers Weekly review of God and the Gavel - http://www.amazon.com/exec/obidos/tg/detail/-/0521703387/findlaw-20

One paragraph which I will have to transcribe reads:

“She is vocal in her criticism of efforts to exempt religious groups from the laws secular organizations must abide by, saving particular disdain by deal-making lawmakers, whom she compares to “hear-no-evil, see-no-evil, speak-no-evil monkeys.”

11 years ago she was preaching the exact opposite; her body of works is now characterized by a strong pro-child mindset and sets about righting what she as wrongs committed by religious dupes.


22 posted on 05/29/2008 11:03:58 AM PDT by Old Professer (The critic writes with rapier pen, dips it twice, and writes again.)
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To: patton

I know. That’s what I was responding to.


23 posted on 05/29/2008 11:04:56 AM PDT by lady lawyer
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To: lady lawyer

LOL. Sorry.


24 posted on 05/29/2008 11:06:58 AM PDT by patton (cuiquam in sua arte credendum)
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To: Old Professer

Oops, left out ‘sees’ - “...what she sees as wrongs committed by religious dupes.”


25 posted on 05/29/2008 11:08:35 AM PDT by Old Professer (The critic writes with rapier pen, dips it twice, and writes again.)
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To: lady lawyer

What about the pubescent boys? If there is a pattern of abandonment/neglect of pubescent boys, would they be considered in imminent danger?


26 posted on 05/29/2008 11:11:59 AM PDT by Marie2 (“I don’t want to give up eating all I want because of a failed hypothesis,” said Robinson)
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To: patton
Thank you for that link

I have always thought of the ACLU as a bunch against everything I believe in I must re think that after reading this

The more I read the more I believe Texas jumped in and then found out how deep the water was.

With literally no investigation they took on a problem with not enough resources to handle.

Not enough courtrooms or judges they should of brought in more judges for the 14 day hearing.
Not enough housing for kids and mothers.
Not enough child care workers for kids involved.
Not enough states attorneys or investigators.
Not enough lawyers for kids and family's.

27 posted on 05/29/2008 11:21:52 AM PDT by mouser (run the rats out its the only hope we have)
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To: MizSterious

As in her other articles on this case, Marci Hamilton does not address why all children were taken, if only five girls are or have been pregnant. She wants us to believe that the existence of polygamy threatens the physical safety of all 450+ children. It does not.
As for all the evidence Hanilton sees - hearsay from a nine-year-old girl, CPS Voss’ statement that all the children “looked frightened” (with 700 law enforcement officers with tanks and guns outside), etc. - that ain’t evidence, folks.
It was CPS who brought up the belifs of the FLDS. And that was a big mistake, because the US Supreme Court has already ruled that a government entity cannot take action against someone based on his/her beliefs.
Beliefs are not the issue here; actions are. Out of 450+ kids, there is evidence that something like five MAY have been abused.
That does not meet the Texas law that all the kids were in imminent danger of being physically or sexually abused, and that CPS made reasonable efforts to not remove the kids.


28 posted on 05/29/2008 11:28:37 AM PDT by firefly2
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To: MizSterious

I am not in favor of polygamy, never have been. That’s not the point.

Your example is a non sequitur because the law against bank robbery has preceded the establishment of a religion based on bank robbery.

The example of polygamy is the opposite. Polygamy existed in this country for a decade or three before the first anti-polygamy laws were passed. Therefore, the laws really did prohibit the free exercise of polygamy religion.

Even so, that isn’t the point I was making. I was saying that the way the professor wants to interpret the First Amendment has the effect of removing the necessity of the free exercise clause. That’s constitutionally frightening, regardless your religion.

Personally, I think the FLDS is wrong in their private interpretation of religion WRT polygamy and related activities. However, that is irrelevant to the point I was making.


29 posted on 05/29/2008 11:31:00 AM PDT by savedbygrace (SECURE THE BORDERS FIRST (I'M YELLING ON PURPOSE))
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To: MizSterious
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.

Does that sentence bother anyone else as much as it does me? What does it matter what political party the judges belong to? Why impugn the motives of the judges? Weren't they clear in their opinion? Why put "rights" in quotes when associated with religion and parents?

That whole sentence reeks of an agenda that I find troubling.

30 posted on 05/29/2008 11:34:27 AM PDT by ConfusedAndLovingIt
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To: firefly2
CPS screwed the pooch and tried to trample on just about every civil right. The problem now exists that by their actions, all the children, including those possibly in imminent physical danger as required in the removal statute will likely be getting a one way ticket back.
31 posted on 05/29/2008 11:35:45 AM PDT by commonguymd (Using the mob torch and pitchfork government lover's method of debate against them in kind.)
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To: MizSterious

This afternoon, the Court requested that the mothers file a response to the State’s petition for mandamus — by tomorrow at 9:00am. That short timeline is not incredibly unusual in mandamus actions (for which speed is often critical) and it doesn’t necessarily tip the Court’s hand.

What the Court has done is to expand its range of options. Typically, the Court will not grant mandamus relief until after it has at least requested that the party opposed to relief file a response. See Tex. R. App. P. 52.4 (”The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court.”). Having requested a response, the rules now give the Court more latitude to grant the requested mandamus relief for the State in full, rather than just a temporary stay.

So does that signal that the Court is leaning one way or the other? Perhaps not. Typically, the Court will request a response if even a single Justice votes to do so, and it is easy to imagine the Court wanting to see what the mothers have to say about the merits before deciding how to dispose of this case.

http://www.scotxblog.com/


32 posted on 05/29/2008 11:37:08 AM PDT by UCANSEE2 (I reserve the right to misinterpret the comments of any and all pesters)
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To: ConfusedAndLovingIt

Yes.


33 posted on 05/29/2008 11:41:41 AM PDT by commonguymd (Using the mob torch and pitchfork government lover's method of debate against them in kind.)
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To: commonguymd
Wasn't this entire case precipitated on a phone caller where the caller provided a false name?

Now, one must wonder, if this entire episode was not staged by state officials wanting to shortcut the investigations, and who had hoped that public opinion would sway a friendly judge/court into delivering some quick Texas style justice.

Child abuse by the individual or the state is wrong.
Displacing families 450+ children without adequate proof (or viable facts) is also wrong.
Polygamy in my value system is wrong, but the state questioning the religious values and teaching of a group is a greater wrong….and it is the first steps onto the slippery slope.

34 posted on 05/29/2008 11:45:30 AM PDT by remur389 (Buy American)
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To: MizSterious
Wow. A Federal Copyright lawyer trying to explain why a Texas Court, interpreting a Texas State law is wrong.

Her opinion on the matter is just about as valid as if one got an opinion on brain surgery from a proctologist.

This woman wouldn't even have standing to be declared an 'expert' in this Courtroom.

L

35 posted on 05/29/2008 11:47:27 AM PDT by Lurker (Islam is an insane death cult. Any other aspects are PR, to get them within throat-cutting range.)
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To: lady lawyer
I know if I wanted a sound legal opinion on Texas State law, I'd hire a Copyright attorney.

Wouldn't you?

L

36 posted on 05/29/2008 11:48:13 AM PDT by Lurker (Islam is an insane death cult. Any other aspects are PR, to get them within throat-cutting range.)
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To: MizSterious

But there is a law that all children by the age of 1 must have a social security number - thus the need of a birth certificate.


37 posted on 05/29/2008 11:48:32 AM PDT by JBCiejka
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To: highball

Thats’ fine for kids born in hospitals.


38 posted on 05/29/2008 11:50:14 AM PDT by ThanhPhero (di hanh huong den La Vang)
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To: lady lawyer
I’m somewhat worried because they asked for extra briefing. It should not have been necessary.

I'm not concerned about it. I think the Court is looking for guidance on some particular aspect.

Cordially,

39 posted on 05/29/2008 11:53:04 AM PDT by Diamond
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To: commonguymd

If the TX Supreme Court upholds the 3rd Appellate’s ruling, will all the children, including those in imminent danger of physical or sexual abuse, be sent back?
Hopefully, CPS and the courts would do it right this time, by giving each of those kids an individual adversary hearing, and presenting real evidence, thereby preserving civil rights and also protecting the kids who need to be protected.
Remember that the first day of the raid the court ordered that only 52 children be removed from the ranch. The second court order stated that ALL children were to be removed.
CPS has and knows the guidelines for handling this case properly; they just need some pushing to do it legally and constitutionally.


40 posted on 05/29/2008 12:01:19 PM PDT by firefly2
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