pageok
pageok
pageok
The Heart of the Disagreement Among the Judges in the Texas FLDS Litigation?

The Texas Supreme Court opinions in this matter are short. The majority gives little analysis, perhaps relying on the analysis in the court of appeals decision:

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. 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 majority then points to the court's ability to "make and modify temporary orders 'for the safety and welfare of the child,'" the court's ability to "order the removal of an alleged perpetrator from the child's home," and the court's and prosecutors' ability to punish removal of children and other obstruction with investigation.

The 3-Justice concurrence and dissent agrees as to the boys and the prepubescent girls, but reasons otherwise as to the pubescent girls. In particular, it points to five girls ranging in age from 13 to 16 who had children, were pregnant, or had been pregnant (seemingly the same ones noted by the lower court opinion). It then goes on to reason that "[e]vidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch — evidence sufficient to satisfy a 'person of ordinary prudence and caution that other such girls were at risk of sexual abuse as well.'"

The partial dissenters then go on to explain why they think — again, contrary to the court of appeals opinion — that the Department can't be faulted for failing to show that "reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal": The FLDS members, the dissenters conclude, thwarted any such alternative efforts by refusing to disclose the family structures on the ranch, and in some instances by lying about such matters.

Here, though, is what strikes me as the heart of the disagreement: The dissenters stress (see note 2) that "In determining whether there is a 'continuing danger to the health or safety' of a child, the Family Code explicitly permits a court to consider 'whether the household to which the child would be returned includes a person who ... has sexually abused another child.'" The court of appeals, which the majority seems to agree with, says to the contrary (note 10) that:

The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.
And this is important because the factual evidence of underage sex on which the dissenters relied didn't seem to be focused on the particular pubescent girls at issue in this case, or specific threats those girls faced.

After all, pubescent girls get pregnant in all sorts of communities; the five pregnancies on which the dissenters relied — I realize there may be other pregnancies out there, but these are the ones the Justices cited — aren't even so unusual for a group of 250 or more girls (I believe that's the rough number seized at the FLDS ranch): The pregnancy rate for 14-year-olds and younger this decade seems to be a little under 1%, and for 15-to-17-year-olds seems to be a little over 4%, though I take it that for 15- and 16-year-olds the fraction would be less than the aggregate for 15-, 16-, and 17-year-olds. Texas reports a roughly 4% pregnancy rate for 16-year-olds, a roughly 2% rate for 15-year-olds, and a roughly 0.1% rate for 13-year-olds (no numbers are given for 14-year-olds). The rate of teenage sex is obviously even higher.

A particular girl's mere presence in a community that tolerates this sort of behavior, it seems to me, can't be enough as a legal matter for a finding that the girl is in enough danger to be seized. If the government swept through many a neighborhood in the country, it would probably find lots of underage girls who are pregnant, many through illegal sex — yet I take it that this wouldn't justify even a temporary removal of one girl from her parents because of the pregnancy of other girls in neighboring houses. And I take it there would be no justification for such temporary removal even if it was clear that most people in the neighborhood had nothing against early marriages (for instance, because they were emigres from a region, such as East Asia or Latin America, where the age of consent for sex and for marriage was low), even if people knew each other's families and socialized often with them, and even if many community members were refusing to cooperate with authorities. "[A] pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, [in such a neighborhood]" wouldn't dispense with the need of showing some individualized evidence that each particular girl who was to be seized was subject to a high risk of danger, beyond just the fact that she lived in a neighborhood were those things happened and were condoned.

So this is why it seems to me that the heart of the partial dissenters' argument must be that "the Ranch" is different from a normal neighborhood, presumably because it counts as a single "household" (something the dissenters don't expressly say, but that they seem to point to by reference to behavior "on the Ranch" coupled with the mention of the "household" principle in note 2). And the majority's disagreement, I expect, probably stems partly from the majority's accepting the court of appeals' contrary view that the Ranch consists of many separate households.

Now I can't speak with confidence about how dispositive the "single household" vs. "multiple households" distinctions ought to be, or how the lines ought to be drawn in close cases if the distinction is used. But my sense is that this issue — which more broadly relates to the degree of responsibility that can be ascribed to any particular child's parents for the abusive or neglectful actions of other parents in their community — is what the dispute in this particular stage of litigation is really about.

Bill Dyer (mail) (www):
From the majority (per curiam) opinion (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 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 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.... While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children .... The court of appeals’ decision does not conclude the SAPCR [suits affecting parent-child relationships] 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, technically, dicta, but it's dicta in the form of a very broad hint to the trial court and the Department about what they ought to do next: Grant lesser relief, more narrowly tailored to protect those most at risk and address the risk of flight and interference.

This opinion is entirely inconsistent with the suggestion of various pundits that the Department was essentially engaged in fascist kidnappings, for which they are certainly going to be held responsible in future damages lawsuits.

The relief granted by the trial court was indeed overbroad. It painted with too broad a brush, and it used a "one-size fits all" remedy -- and the statutes don't permit that at the initial "adversary hearing" stage, which is where this litigation stands now.

But so recognizing -- as the court of appeals original opinion did, and this further opinion from the next court upstream also does -- is emphatically not the same as saying that the Department had no legitimate grounds for being concerned!

Indeed, the three justices who dissented in part believe there was enough proof already shown to justify separating post-pubescent teen girls from their parents.

This is far, far from over.
5.29.2008 8:08pm
David Schwartz (mail):
It seems odd to me that this "household" distinction is so important. I realize that the law allows them to take into account any sexual abuse "in the same household". But the law has all kinds of catch-alls and doesn't say how much weight these factors need to be given.

Surely you can't take a child away just because, say, a sibling was charged with abusing a child she was babysitting. And just as surely you can take into account the fact that the family has a frequent visiting friend with a long history of child sexual abuse who is often left alone with the children.

The relationships inside the community are what they are and trying to cram them into one of two pigeonholes makes no sense.
5.29.2008 8:29pm
Fiftycal (mail):
The basis for the entrance to the ranch was from some woman in Colorado claiming to be an abused 16 y/o at the "ranch". Locals had been itching for years to "see what was going on" and used this as their excuse to round up the SWAT team, complete with armored personnel carriers, (they might have guns!) and invade. I truly question the motives of CPS and the adjunct adoption agencies involved with taking the children.

The 9-0 ruling from the Texas Supreme Court should have included removing the district court judge that the appeals court said "abused her authority". Why do they think she won't do it again?
5.29.2008 8:34pm
Soronel Haetir (mail):
The household distinction matters, as I understand it, because under the one household theory only one hearing was needed. If each family is a separate household, then the courts are required to hold individual hearings for each of those families and make a determination based solely upon evidence relevant to that family.
5.29.2008 9:00pm
Bill Dyer (mail) (www):
Fiftycal: You clearly haven't read the opinion, or even the segment I quoted above. It is emphatically not hostile to the trial judge. Much less is it a "sharp rebuke" of the sort Prof. V suggested (incorrectly, I think) that the Austin Court of Appeals' opinion was. Today's per curiam opinion suggests — "directs" in all but form — that the Department and the trial judge explore less drastic forms of relief, and that they particularize them more closely to the specific family circumstances. It is civil, restrained, and professional — qualities unfortunately often lacking in those who're commenting about this case.

My extended take on today's ruling, as a Texas lawyer with 28 years' civil trial and appellate experience but who's not directly involved in the case, is on my own blog.
5.29.2008 9:08pm
Michael Edward McNeil (mail) (www):
We knew that was coming: a 9-0 Texas Supreme Court decision isn't any sort of "rebuke." Right.
5.29.2008 9:18pm
Moneyrunner43 (www):
Well, that was fast.

I would have thought that the law would wend its leisurely way for at least weeks if not months; that the children might see their parents again for their college graduations or weddings. But like a bolt of lighting the Texas Supremes ruled that the children from the Yearning For Zion Ranch have to be returned to their parents … now.




SAN ANTONIO - In a crushing blow to the state's massive seizure of children from a polygamist sect's ranch, the Texas Supreme Court ruled Thursday that child welfare officials overstepped their authority and the children should go back to their parents.
The high court affirmed a decision by an appellate court last week, saying Child Protective Services failed to show an immediate danger to the more than 400 children swept up from the Yearning For Zion Ranch nearly two months ago.
"On the record before us, removal of the children was not warranted," the justices said in their ruling issued in Austin.


The speed with which this case was decided may be an indication of how weak the case brought by the CPS was. It will be interesting to see if someone is made to pay for this fiasco or whether there will be the usual bureaucratic CYA and the CPS workers circle the wagons.

In a related development, the Texas Rangers may have found the person who perpetrated this outrage with a hoax phone call. The perp, who is under investigation for other hoax calls appears to be Rozita Swinton, 33, of Colorado Springs. She has made other phone calls pretending to be a teen aged girl being abused either by her father and her pastor.
...
But back to Swinton, these kind of accusations can have a devastating effect on the person being accused, since the assumption is made that no one would fake this. Decades ago, this kind of thing sent day care workers to jail for years. This one almost led to the destruction of hundreds of families and their children.

If Swinton is the hoaxer, she deserves a long, long prison sentence.
5.29.2008 9:28pm
Bill Dyer (mail) (www):
Mr. McNeil: It wasn't 9/0, it was 6/3, with three justices voting to reverse the Austin Court of Appeals in part.

And if you actually read the opinion -- which includes a roadmap for how the trial court ought to consider granting more narrowly tailored relief on this very same record -- you'll see that in fact it was not a "rebuke."
5.29.2008 9:31pm
JB:
One thing I don't understand:

The FLDS apparently kicks out numerous boys when they reach 18. Why can't the law enforcement find the "lost boys" and get them to testify about what goes on in there? They'd have to know something, and at least a few ought to be bitter enough to talk.
5.29.2008 9:33pm
Bill Dyer (mail) (www):
The speed with which this case was decided may be an indication of how weak the case brought by the CPS was.


The speed with with news media and commenters jump to the conclusion that this was a "crushing blow" may be an indication of how poorly they understand the issues and comprehend what either the Austin Court of Appeals or Texas Supreme Court have written.

And it's actually no surprise at all that the decision would come this fast. All of this is taking place in the context of a subchapter of the Texas Family Code that mandates return of seized children within 14 days absent a rigorous showing by the Department.
5.29.2008 9:35pm
Sam Hall (mail):
"All of this is taking place in the context of a subchapter of the Texas Family Code that mandates return of seized children within 14 days absent a rigorous showing by the Department."

It has been a lot longer than 14 days.
5.29.2008 9:59pm
john w. (mail):
The FLDS apparently kicks out numerous boys when they reach 18. Why can't the law enforcement find the "lost boys" and get them to testify about what goes on in there? They'd have to know something, and at least a few ought to be bitter enough to talk.

Why should they be bitter? I would think that most 18 y.o. males would be delighted to be free to run their own lives. I certainly was.
5.29.2008 10:09pm
Jim Rhoads (mail):
Bill's commentary on this subject is as well balanced and measured as it gets and I agree with him. It certainly does not warrant unsupported snarky potshots. I highly suggest you read his entire analysis of this case on the link he has provided.

Having read all of the appellate opinions in this case, I would not characterize any language in them as questioning the motives or good faith of either the Department or the Trial Court, but I would be interested in anyone's citations to particular language in those opinions suggesting otherwise.
5.29.2008 10:13pm
Bill Dyer (mail) (www):
The "adversary hearing," which is what this is all about, "shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity." Tex. Fam. Code Ann. § 262.201(a). The hearing began in a timely fashion, but my recollection is that it carried over into a second day, and the resulting orders may not have been signed until shortly thereafter. Nevertheless, this has all been handled on an expedited basis, as is appropriate when the safety of children may be at immediate risk. Nobody's goofing off, and with the briefing schedule ordered by the Texas Supreme Court, I have no doubt that the mothers' counsel were indeed up all night last night to meet a filing deadline for their brief this morning. (Indeed, counsel for the mothers have used the statutory deadlines to their tactical advantage; it obviously would have been to the Department's advantage if it could have delayed the hearings longer so as to continue with its investigation.)
5.29.2008 10:14pm
ReaderY:
As I wrote in an earlier comment, I agree that this is exactly the heart of the issue.
5.29.2008 10:14pm
JB:
John W,
I don't know about your life history, but if I was made to leave where I'd grown up after high school, and gotten no guidance or assistance of any kind, because my parents wanted to shack up with my sister's friends and not let me date them, I think I'd be at least mildly miffed.
5.29.2008 10:14pm
Moneyrunner43 (www):
Bill,

In Texas, does 14 days mean 14 days? I mean since you're a learned member of the bar, what does 14 days mean when it's being interpreted by you legal eagles?
5.29.2008 10:17pm
Michael Edward McNeil (mail) (www):
The department gets knocked down unanimously in the appeals court, for not having even bothered to offer up any evidence (as that court noted) for its allegations. The department thereupon appeals the case to the Texas Supreme Court, maintaining that the vast bulk of the children must remain in its clutches, only to be slapped down 9-0 by that court (with regard to the large majority of the cases, and 6-3 otherwise). According to the decision, the department, once again, asked the court to affirm its actions and overrule the appeals court without even providing any explanation for why it needed to do so. Pure hubris.
5.29.2008 10:19pm
Moneyrunner43 (www):
If you are kicked out after reaching age 18, how do you get to be the 50 year old with the teen age wife?
5.29.2008 10:27pm
Snarky:
Anyone who knows about the beliefs of the FLDS knows that they believe in polygamy and that they often force underage girls to engage in sexual relations with much older men.

I think that the social context needs to be considered in deciding what sort of determination should be made when removing children. In a case where you know that a certain group holds a belief system that goes against the law, I think less individualized proof ought to be required for a separation to occur.

Eugene and the Texas Supreme Court are doing nothing more than advocating turning a blind eye to a very ugly reality.
5.29.2008 10:34pm
Sam Hall (mail):
"If you are kicked out after reaching age 18, how do you get to be the 50 year old with the teen age wife?"

I keep hearing that, but I haven't seen any proof that it is true. CPS has made a lot of claims, but they certainly haven't produced much proof. A picture of some guy kissing a young girl, but with no background on who took it or where it has been. It could have been Photoshopped for all we know.
5.29.2008 10:36pm
Moneyrunner43 (www):
Snarky,

Would you footnote your assertions about what

everyone knows about the beliefs of the FLDS?
5.29.2008 10:38pm
LM (mail):
Moneyrunner,

I'll assume you're asking that seriously, so here's how I understand it to work: Since the husbands have multiple wives, and not vice versa, there's a need for more women than men. A few "alpha" males are allowed to stay and start families, but most of the young men are forced out to create the desired gender ratio.
5.29.2008 10:41pm
Michael Edward McNeil (mail) (www):
Eugene and the Texas Supreme Court are doing nothing more than advocating turning a blind eye to a very ugly reality.

What Eugene, and the Texas court of appeals, and the Texas Supreme Court (some wide conspiracy, huh?) advocate is that agents of the government of Texas follow the law as the Texas Legislature has written it.
5.29.2008 10:44pm
Michael Edward McNeil (mail) (www):
(Sorry, I don't mean to put words in your mouth, Eugene.)
5.29.2008 10:50pm
Moneyrunner43 (www):
Sam,

I'm not even remotely close to the FLDS or the Mormons, but the number of things "WE" know about them I find disconcerting, especially on a web site that is reputed to be populated by the legal community.

I have read learned briefs here as to why we should not eavesdrop on Osama's phone calls and why every member of Al Qaida deserves a trial in a civil court ... or the terrorists will win. But show the same people a religous sect and it "get out the pitchforks boys, there a monster on the loose who rapes little girls."

"Islamofascist beheading another Infidel"="Baptists in their pews" in their eyes. Gay marriage? It's right there in the Constitution. But mention Mormons and polygamy and killing's too good for them.
5.29.2008 10:53pm
ithaqua (mail):
"Why should they be bitter? I would think that most 18 y.o. males would be delighted to be free to run their own lives. I certainly was."

Absolutely. No eighteen-year-old male needs support from, or even contact with, his family. Cut all ties with relatives, friends, and church, and go work minimum wage somewhere. Only lazy liberals need to leech off other people.

Seriously. I've been one of the loudest defenders of the FLDS, and I think it's rubbish that the rights of husbands and fathers have been trampled on like this, but this:

"So this is why it seems to me that the heart of the partial dissenters' argument must be that "the Ranch" is different from a normal neighborhood, presumably because it counts as a single "household" "

seems right to me. If there's a single 'prophet', or a group of 'elders', that can transfer wives and children from one household to another, that's substantially different from the essentially autonomous family structures in an ordinary American neighborhood. A FLDS compound really does seem closer to a single, very extended family.
5.29.2008 10:57pm
Snarky:

What Eugene, and the Texas court of appeals, and the Texas Supreme Court (some wide conspiracy, huh?) advocate is that agents of the government of Texas follow the law as the Texas Legislature has written it.


The law is subject to multiple reasonable interpretations. Given that, the interpretation which protects people from sexual abuse should be favored over the interpretation that does not.
5.29.2008 11:01pm
Moneyrunner43 (www):
LM,

Would you cite the basis for your beliefs? You may be right, but as you can see, I don't go along with many of the assumptions made by those who appear to have a vested interest in demonizing this group.

Again, assuming that most 18-year olds are sent out, is this somehow totally different from what the rest of America does? Where did your kids go when they reached 18 and graduated from high school?
5.29.2008 11:03pm
Snarky:

I'm not even remotely close to the FLDS or the Mormons, but the number of things "WE" know about them I find disconcerting


Maybe if you knew how to use Google, you wouldn't find such assertions "disconcerting."

FACT: The FLDS split the the mainstream LDS because FLDS members were unable to give up polygamy.

FACT: It is well-documented that in countless instances, sexual relations have occurred between much older FLDS men and much younger FLDS girls.

You can ignore these realities all you want. Turn a blind eye while the sexual abuse continues. But I do not think that is a particularly admirable, wise, or even moral position.

Give me a break. The law and our interpretations of it can and should be informed by reality.
5.29.2008 11:05pm
Kazinski:
Why is the Texas Supreme court issuing this ruling? I thought Janet Reno has sole jurisdiction on all Texas Cult Child Removal and Immolation cases.
5.29.2008 11:07pm
Moneyrunner43 (www):
Snarky,


The law is subject to multiple reasonable interpretations. Given that, the interpretation which protects people from sexual abuse should be favored over the interpretation that does not.


You may or may not be old enough to remember the McMartin Day Care case, but that is pretty much the reasons the McMartins were railroaded.
5.29.2008 11:07pm
Snarky:

Would you cite the basis for your beliefs? You may be right, but as you can see, I don't go along with many of the assumptions made by those who appear to have a vested interest in demonizing this group.


Cite 1: Google FLDS
Cite 2: Google Fundamentalist Church of Jesus Christ of Latter-day Saints
Cite 3: Warren Jeffs
5.29.2008 11:08pm
Sam Hall (mail):
"The law is subject to multiple reasonable interpretations. Given that, the interpretation which protects people from sexual abuse should be favored over the interpretation that does not."

You mean those 200+ kids under five were in immediate danger of abuse?
5.29.2008 11:09pm
Snarky:

You may or may not be old enough to remember...


You may or may not be too old to know how to use Google to get basic information.
5.29.2008 11:09pm
Snarky:

You mean those 200+ kids under five were in immediate danger of abuse?


I mean, you protect all the kids immediately, and sort it out later. I know that you may want to give the benefit of the doubt to the sexual abusers (we never force anyone under 13 to have sex with older men, we swear!) but I think the benefit of the doubt should go to the potential victims.
5.29.2008 11:12pm
LM (mail):
Moneyrunner,

I was responding to your question, If you are kicked out after reaching age 18, how do you get to be the 50 year old with the teen age wife? so my answer was offered as a logical, not factual explanation. I have no opinion as to what actually transpires there. As far as that goes, I withhold judgment.
5.29.2008 11:18pm
Moneyrunner43 (www):
Snarky,


FACT: The FLDS split the the mainstream LDS because FLDS members were unable to give up polygamy.

No argument there. But as so many people on this site, I'm broadminded about the relations betweenthe sexes. Of Joe can marry Bob, who am I to say that Fred can't have four wives?


FACT: It is well-documented that in countless instances, sexual relations have occurred between much older FLDS men and much younger FLDS girls.

Again, why the cries of outrage about this? Are you some kind of bluenose who wants to intrude into other people's bedrooms? Is there a law against this? If so, can we finally arrest Hugh Hefner and countless other dirty old men?


You can ignore these realities all you want. Turn a blind eye while the sexual abuse continues. But I do not think that is a particularly admirable, wise, or even moral position.

Having read the moral postions regarding other couplings on this website I find you posture ridiculous.
5.29.2008 11:20pm
Sam Hall (mail):
"I mean, you protect all the kids immediately, and sort it out later. "

That is not the law and two courts have made that very clear.
5.29.2008 11:22pm
Moneyrunner43 (www):
LM,

Thanks. Your explanation is logical, but may not be correct.
I appreciate your not jumping to conclusions.
5.29.2008 11:24pm
Moneyrunner43 (www):
Snarky,

In case you have not figured it out, Google created a search engine, not a truth machine. It is filled to the brim with unfounded assertions and hysterical rants ... like yours.
5.29.2008 11:27pm
Snarky:

That is not the law and two courts have made that very clear.


That is not the law because 2 courts have very foolishly exercised their discretion and chosen an interpretation of the law that leaves the victims of sexual abuse in the hands of predators.
5.29.2008 11:28pm
john w. (mail):
" ...the interpretation which protects people from sexual abuse should be favored over the interpretation that does not..."

Personally, I'd prefer the interpretation that respects quaint little details like "innocent until proven guilty" and the right to confront one's accusers.
5.29.2008 11:31pm
Russ (mail):
I mean, you protect all the kids immediately, and sort it out later.

Works real well when they're not your children.

To take the child of another should require a higher standard of proof, not bad feelings about what they think might be happening in there.

In this nation, we require proof, not just vague suspicions, to take away someone's child.
5.29.2008 11:31pm
Russ (mail):
john w. - Well said!
5.29.2008 11:32pm
Snarky:

In case you have not figured it out, Google created a search engine, not a truth machine. It is filled to the brim with unfounded assertions and hysterical rants ... like yours.


If you aren't smart enough to sort it out, that is your problem, not mine.

If you believe that the FLDS does not condone:
(1) the practice polygamy
(2) sex with underage girls
(3) breaking the law

Then you are frankly hopeless. And no, Google will not save you, because you lack the critical thinking skills to separate the truth from fiction and thus assume it must all be fiction.

Your inability to discover reliable and credible information using Google is not my problem.

Do you know there even exists and FLDS seperate from the mainstream and respectable LDS? Because the FLDS wanted to continue practicing polygamy.

But, I guess in your mind, that is all crazy talk. Just like that crazy talk we learn in school when we learn that their were originally 13 colonies.
5.29.2008 11:34pm
subpatre (mail):
Snarky said I think that the social context needs to be considered in deciding what sort of determination should be made when removing children. In a case where you know that a certain group holds a belief system that goes against the law, I think less individualized proof ought to be required for a separation to occur.
"The record contains no evidence of harm specific to the children of Real Parties in Interest. The United States Constitution does not allow DFPS to separate children and their parents based solely on beliefs, see U.S. Const. Amend. I., and state law does not authorize it, see Tex. Fam. Code § 262.201." -- ACLU amicus
5.29.2008 11:40pm
Snarky:

To take the child of another should require a higher standard of proof, not bad feelings about what they think might be happening in there.

In this nation, we require proof, not just vague suspicions, to take away someone's child.


That need for individualized proof should depend on the context.

This case just do not fit into your atomistic model that assumes a nuclear family. What we are dealing with is a cult that practices polygamy and whose leaders have been known to engage in sexual relations with underage girls.

I might agree with you about the standard of proof for normal nuclear families. The cult that is the FLDS is a different beast entirely.

The Texas legislature should amend its laws to overturn the Texas Supreme Court ASAP.
5.29.2008 11:42pm
Richard Aubrey (mail):
Jeez. What a bunch of bluenoses. All of a sudden, warped sexual practices are just plain wrong. Wow. Special for the occasion, I guess.
Didn't expect to see it here.

Now, having settled the fact that the legal community and various Child Abductive Services have strong views on various sexual practices, when do they start raiding Muslim compounds?
5.29.2008 11:43pm
Snarky:

Personally, I'd prefer the interpretation that respects quaint little details like "innocent until proven guilty" and the right to confront one's accusers.


Actually, I think you are very confused. Removing children is not a criminal proceeding. Innocent until proven guilty beyond a reasonable doubt does not apply in this context.
5.29.2008 11:44pm
Jagermeister:
That need for individualized proof should depend on the context.
I hope that you really don't believe that. Is there really any legal context when guilt by association hold true? Doesn't your assertion go against our entire concept of constitutional protections?

I have nothing but contempt for the practices of the FLDS, but I don't think its too much to ask (as the Texas court did) that evidence be required more than the entire community constitutes a threat. Thats a pretty high burden of proof, and one that CPS didn't meet. I also happen to think the Scientologists are guilty of brainwashing, but I don't think there is any evidence that every Scientologist constitutes a threat.
5.30.2008 12:09am
AnonLawStudent:

That need for individualized proof should depend on the context. * * * The Texas legislature should amend its laws to overturn the Texas Supreme Court ASAP.


Good luck with that. The right to raise and educate one's children as he sees fit is the original fundamental right. See Meyer v. State of Nebraska, 262 U.S. 390 (1923); Pierce v. Society of the Sisters, 268 U.S. 510 (1925).

Removing children is not a criminal proceeding. Innocent until proven guilty beyond a reasonable doubt does not apply in this context.

True, but strict scrutiny applies to statutes impinging fundamental rights.
5.30.2008 12:29am
Ken Hahn (mail):
Snarky,
If followed to its logical conclusion your reasoning would demand that all children of single parents, especially African-Americans, be taken from their homes and become wards of the state as they are much more likely to have underage sex ( statutory rape? ) and suffer sexual abuse. Those suspected of promoting this, such as school administrators passing out condoms, must be removed from contact with children.

There are good reasons that there are limits on agencies like CPS. Some FLDS members are a danger to some children and with legal evidence should be prosecuted to the full extent of the law. I don't care if Texas passes a law that sentences the guilty to death and carries out the executions after a fair trial. But without specific evidence the actions of CPS and the original judge are the actions one expects in a dictatorship.

The FLDS should be held fully accountable for the danger they are to a small group of children. CPS and their fellow agencies are a threat to every parent, child and family in America.
5.30.2008 1:06am
Darleen Click (mail):
In a case where you know that a certain group holds a belief system that goes against the law, I think less individualized proof ought to be required for a separation to occur.

So, Snarky, when you are charging CPS with seizing all the children of parents who are racist? Members of the KKK? Or who place rap and live the hip-hop lifestyle? Or have one or the other parent in prison? Or have gangbanger parents?

I mean, there are ALL kind of icky belief systems out there.
5.30.2008 1:31am
Darleen Click (mail):
Also --

Why hasn't Texas raided and shut down the local Planned Parenthood? They certainly are accomplices to illegal sex, what with handing out contraceptives and providing abortions to minors.
5.30.2008 1:33am
Jim Rhoads (mail):
"icky belief systems"

A great legal term, Darleen. And really funny to boot.
5.30.2008 1:39am
Snarky:

So, Snarky, when you are charging CPS with seizing all the children of parents who are racist? Members of the KKK? Or who place rap and live the hip-hop lifestyle? Or have one or the other parent in prison? Or have gangbanger parents?


Members of the KKK do not condone the sexual abuse of children as part of their religion. Nor do "ganganger parents," whatever this means.

And there is nothing wrong with rap or hip-hop as musical styles (even though clearly there is something wrong with some of the lyrics in some songs). But, even if there is something wrong with rap or hip-hop, it certainly does not rise to the level of child sexual abuse.


If followed to its logical conclusion your reasoning...


Actually, if you following my reasoning to its logical conclusion, it would stop at religious cults that advocate and practice polygamy and child sexual abuse.

Thank you for being Exhibit A in EVERYTHING THAT IS WRONG WITH SLIPPERY SLOPE ARGUMENTS.

So, we are to stand by while real children suffer from real sexual abuse, all so that you can feel better about a totally hypothetical slippery slope.

Do I think that the burden of proof should be different for a member of the NAMBLA (the North American Man Boy Love Association) than for a normal nuclear family with no such bizarre associations? Absolutely. If you belong to a group that actively advocates and practices breaking the law in a particular manner, civil actions, such as the separation of you from your children, should be easier.

This case to me illustrates everything that is WRONG with Volokh's paranoid defense of slippery slope arguments. In general, these arguments tend to be invalid. They are often a way for people to hide their real reasons for opposing certain actions when they have no ability to argue on the merits of the specific case.

Yes, change does tend to happen incrementally, no surprise there. But, that doesn't really mean we are on a slippery slopes as much as it means that we are slowly changing our mind in light of experience. That sort of evolution is not a slippery slope, it is a good thing.

The problem with the slippery slope is in the imagery. It sounds as though once we have gone too far, we have no choice but to go farther. But that is usually not true. Generally, we take the next step on what Volokh terms a slippery slope willfully.

So, if the best argument you have is not to defend the appropriateness of THESE parents maintaining custody of their children, but rather some scary slippery slope to 1984 scenario, I am entirely unsympathetic and uninterested in your point of view. I am more interested in stopping the evil of real sexual abuse today, that assuaging those with paranoid nightmares about future 1984 that everything will be all right, no slippery slope here. And to prove it, we will allow more sexual abuse. I don't think so.
5.30.2008 1:56am
Darleen Click (mail):
Snarky

When a cop goes rogue, it casts a negative public perception on all cops. Even if the rogue cop was correct in that singular instance of "getting the bad guy", the negatives of his/her extra-legal actions far outweigh any good.

The only good that the CPS did in this instance in Texas was not to have just done a repeat of Waco and burned everyone to death. Though, from the declarations of several mental health professionals brought in by CPS, it was CPS workers who were hostile and threatening and really seemed to hate the children almost as much as they did the parents.

However, it remains that you do not, do NOT punish people for their belief systems, only their behavior. And that behavior must be proved on an individual basis.

One 18 y/o girl who gave birth while imprisoned by CPS as a "minor" is terrified and convinced CPS wanted to seize her infant. What was her crime to have CPS ready to take her child away from her?

BTW... Gangbanger parents... A lot of gangs are generations old. Children are born into and raised in a "pervasive culture" that condones a manner of illegal behaviors.

No, I'm not an attorney, but I have worked in a DA office for 10 years, and now supervise in a juvenile detention facility.

Texas CPS, like a rogue cop or a Nifong, makes it HARDER to prosecute real abuse.
5.30.2008 2:18am
Darleen Click (mail):
typo-should be "condones all manner of"
5.30.2008 2:20am
Roger Schlafly (www):
FACT: It is well-documented that in countless instances, sexual relations have occurred between much older FLDS men and much younger FLDS girls.
Texas has very strict laws against statutory rape. If a violation can be documented, then prosecute the perp. Otherwise it is legal. Either way, CPS is not needed.
I mean, you protect all the kids immediately, and sort it out later.
Let's start by seizing your kids! Then seize kids in other communities with high teenage pregnancy rates.
5.30.2008 2:26am
Snarky:

it was CPS workers who were hostile and threatening and really seemed to hate the children almost as much as they did the parents.


CPS workers hate the children? Give me a break. That is truly ridiculous.


However, it remains that you do not, do NOT punish people for their belief systems, only their behavior.


So, if you were a family court judge and you had a father who was a member of NAMBLA (the North American Man Boy Love Association) but who did not have a criminal record versus a mother who has an alcohol problem but is in AA, would you award custody of a young boy to the father because of the "behavior" of the mother why you assume the father is supposedly a paragon of goodness?

I think when it comes to child custody, associations are very relevant.


makes it HARDER to prosecute real abuse.


We are talking about real abuse here.
5.30.2008 2:39am
Snarky:

Texas has very strict laws against statutory rape. If a violation can be documented, then prosecute the perp. Otherwise it is legal. Either way, CPS is not needed.


What a strange binary. Custody of children is not a matter of criminal law. It is a matter of civil law.

The idea that you must prove someone is unfit beyond a reasonable doubt, the same burden of proof associated with a criminal matter, is completely ridiculous.

If we adopted the standard you are implicitly adopting here, we would have to leave children in the custody of parents we know are sexually abusing them, but where not enough admissible evidence has been gathered to convict them beyond a reasonable doubt. Sometimes, it can take longer than you like to gather the evidence needed to convict someone, even when you have a high degree of certainty due to inadmissible evidence or you are more certain than not that they are guilty.

Your views are definitely a threat to the welfare of children.
5.30.2008 2:45am
Darleen Click (mail):
From ABC News:
Linda Werlein, director of a local mental health and mental retardation center who assisted CPS in the days after the raid, said CPS workers treated her staff with suspicion, told her they would be arrested if they interfered with the questioning of the mothers, and that the church mothers would not talk without their attorneys present.

“Each and everything we were told was either inaccurate or untrue,” she said in her statement, adding, “I was struck by what wonderful mothers they were.”

She said CPS workers appeared suspicious of the mothers. At one point, she said, a CPS investigator told her that the sect would “kill all of the children they deemed to be imperfect.”

Another mental health worker described the coliseum where the children were staying after being seized by the state as “like a Nazi concentration camp,” saying the children were given inadequate food and lived in cramped quarters.

She said the lights were kept on at all hours and that CPS workers would shine flashlights in the faces of the women. When the mothers were separated from their children and returned to the ranch, several mental health workers said, they were not given a chance to say goodbye to their children.

By the end of their multiweek time in the emergency shelters, the women and children appeared “weak, confused and downright exhausted,” wrote Bianca Spies.
Yes, witness the LOVE OF TEH CHILDREN from Texas CPS.

Of course, to be fair to Texas, this kind of abuse of children by CPS or social workers isn't confined to just Texas. In Michael C. v. Gresbach. A social worker invaded a private school, strip searched two children and didn't know why anyone was upset because that's what she usually did. I mean, someone told her the parents had actually spanked their children and of course they were in a [horrors!] private Christian school!

Happily the 7th Circuit ruled that she had, indeed, violated the children's and parent's Constitutional 4th amendment rights.
5.30.2008 2:49am
Darleen Click (mail):
Snark

And you've ducked my question about Planned Parenthood.

Why aren't you shutting them down? They facilitate illegal sex.

At least you could do is send CPS (since they answer to no Constitution) to seize the children of anyone that works at Planned Parenthood (aiding and abetting, right?)
5.30.2008 2:56am
Snarky:

Yes, witness the LOVE OF TEH CHILDREN from Texas CPS.


First of all, what you are describing is suspicion of the mothers. I do not know how you go from suspicion of the mothers to hatred of the children.

Finally, you suggest that by proving that CPS workers do not love the children, that they hate the children. But I hate to break this to you. Love and hate are not opposites. More likely, the CPS workers are concerned for the children, but they do not love them. Even if they do "love" them in some sense, they do not love them like they love their own children.

There is a reason why is usually a good idea to leave children with their parents. Parents usually love their children much more than any CPS worker or any other adult does.

But, when you are dealing with a cult like the FLDS which for years protected their "prophet" Warren Jeffs when he was wanted for sex crimes, including with children that were 12 to 13 years of age, you are dealing with an extraordinary reality.
5.30.2008 3:00am
Darleen Click (mail):
keep ducking Snarky
5.30.2008 3:06am
Darleen Click (mail):
yes CPS luvrs them the children, that's why they exhausted and weakened them with inadequate food and sleep deprivation, then shipped them hundreds of miles away from their parents and siblings.

Hmmm... how much IS the state getting for the adoption of white babies nowadays?
5.30.2008 3:08am
Snarky:

And you've ducked my question about Planned Parenthood.


Is Planned Parenthood knowingly and purposely encouraged and aided relationships between underage children and adults, then I would agree. That is not what Planned Parenthood does.
5.30.2008 3:11am
Avatar (mail):
Even if you think that someone is a member of a group that advocates practices that constitute a danger to children, it's not unreasonable to demand that you at least show evidence that such practices are actually occurring (and by that, I mean something beyond "everybody knows what those people stand for!") and that the action taken is one which is necessary to actually prevent abuse (not "we're worried your neighbor's daughter will be pressured into having sex with an older man, so we're seizing your infant boy!")

There's no reason to compromise the basic underpinnings of our legal system in order to prevent potential harm to some girl, somewhere, maybe. If there are specific girls in danger, let them be named to the court. If there are girls who have suffered sexual abuse, list 'em. If there are boys who have suffered neglect, likewise. If these guys collectively have religious beliefs that make you feel uncomfortable, big whoop, until they institute practices that break the law (and even then, they've got a shot at being allowed anyway - it's their sincere religious beliefs, right? Especially if we're talking the precise definition of what is and is not an acceptable marriage, given that the ink's not even dry on the latest revision of that!)
5.30.2008 3:15am
Bill Dyer (mail) (www):
Prof. V, on the merits of your post and the questions it raises:

Keep in mind that the Texas Supreme Court only received a substantive brief from the relators (the lawyers representing some of the mothers) on Thursday morning. Both the per curiam majority opinion and the partial dissent were released on the afternoon of the same day.

You probably spent as much, or more, time writing your post than did the authors of either of the two opinions released today.

You're probably right that the Supreme Court majority relied upon the Austin Court of Appeals' opinion in large measure. But refusing to replace its reasoning isn't the same thing at all as embracing and committing the Supreme Court justices to its reasoning.

And I think you're imputing too much to the Supreme Court majority. I very much doubt that they've come to even preliminary conclusions about how the definition of "household" ought to be used for purposes of the ultimate decision on termination or modification of parent-child relationships. They just don't need to do that yet; it would be premature, and they expressed a great (and appropriate) distaste for getting ahead of themselves.

I don't think, in short, that there even is a "heart of the disagreement" yet between the three partial dissenters and the remainder who were in the majority. It's too soon for that.

Keep in mind, too, that this case is likely -- at least from press reports -- to present some really challenging facts that may affect the presentation of those legal issues down the road. Some of the children, for example, are quoted in press releases as referring to themselves as having several "mothers." That's pretty exceptional; that's something that begs to be probed; and statements like that may turn out to be highly evidentiary on the "household" question, although I'm not suggesting it's necessarily dispositive.

These are interesting issues, but it's still very early in this case. Perhaps we should see how things shake out, eh?
5.30.2008 3:15am
Snarky:

to prevent potential harm to some girl, somewhere, maybe


More likely to prevent probable harm, somewhere, sometime soon.
5.30.2008 3:40am
BMS (mail):
"After all, pubescent girls get pregnant in all sorts of communities"

Prof. Volokh, I just lost absolutely all respect for you.

What part of the word "rape" is unclear to you?

If the girls in question are minors as defined by law, they cannot consent to sexual intercourse. Period.

Lack of consent + sexual intercourse = rape.

R.A.P.E.

All other discussions about the legal minutia of this particular situation are just so much legal masturbation.

It's rape, it's rape, it's rape.
5.30.2008 3:57am
LM (mail):
BMS,

It's rape if the minor had intercourse with a man over the age of majority who wasn't legally married to her. In other words, the factual variables aren't necessarily neatly tied up.
5.30.2008 4:26am
EH (mail):
Uh, you all have been soundly trolled by Snarky. What's next, taking ithaca seriously?
5.30.2008 4:51am
LM (mail):
Why are you so sure they don't both believe what they say?
5.30.2008 5:10am
jaed (mail):
There is a distinction, and not a subtle one, between rape and statutory "rape". Pulling out the victim card (because this angers me just that much), as a survivor of rape I will thank you to avoid trivializing the horror of forcible rape by equating it with a sixteen-year-old having consensual intercourse.

Hmmm... how much IS the state getting for the adoption of white babies nowadays?

An interesting question, and one that occurred to me as well. According to this site, the federal incentive payment for adopting out children 9 or older is $8000. For children younger than 9 years, it's $4000. Sloppily assuming that half the seized children are younger than 9, we're looking at a potential total payout in excess of $2.5 million. The CPS budget for Texas looks like it's over $200 million, so not a large percentage, but still a nice chunk of change.
5.30.2008 5:31am
davod (mail):
WRT to the cost factor. At some stage the argument becomes a turf defending excercise. Look out when you reah that stage because public servants will do and say anything to protect their turf.
5.30.2008 7:38am
Extraneus (mail):
Ok, so now what about the DNA samples? Considering the appellate court decisions, shouldn't the state now need to produce a valid justification for having taken them? Can the state come into any "household" and forcibly take DNA samples from anyone found therein, so as to construct a tree diagram of who's related to whom?

And speaking of Planned Parenthood, shouldn't states use the Texas precedent to start taking DNA samples of all their underage clients, just in case they ever get a match with some older man which they could then use to convict him of statutory rape?
5.30.2008 7:45am
Brian Mac:
BMS:

I think Eugene's point was that the rate of underage pregnancies on the ranch is similar to the rate at the national level, calling into question the claim that the girls were at heightened risk of sexual abuse. Quite why your rant and loss of respect should follow that simple point is beyond me.
5.30.2008 9:17am
Richard Aubrey (mail):
So, what with dropping the level of necessary evidence to just north of "everybody knows", it ought to be simple to arrange, legally, to raid Muslim compounds.
Right?
5.30.2008 9:36am
darelf:
I know this won't be read at the bottom of the heap like this, but....

I wish EV would use this kind of pin-point logic and reasoning when dealing with other issues on this blog. He is spot on here, and this entire line of reasoning which allows that there may be many, many similarities, but that all of those similarities do not obviate the requirement for the fundamental needs of the case being made. In this case, individualized evidence.
5.30.2008 9:38am
Darleen Click (mail):
BMS

In some jurisdictions "statuory rape" isn't even in the statutes anymore. CA has several formulas concerning "illegal sex with a minor" and even as the age of consent is 18, you would be very hard pressed to find any issuing DDA filing even a misdemeanor complaint against someone 18 years 1 day old for having sex with their 17 year old high school sweetheart. And certainly no one would support the CPS going into the home of the 17 y/o and seizing not only the 17 y/o but all the siblings because the parents were not preventing the sex.
5.30.2008 9:39am
Darleen Click (mail):
. Some of the children, for example, are quoted in press releases as referring to themselves as having several "mothers." That's pretty exceptional;

Really? Exceptional?

that's something that begs to be probed; and statements like that may turn out to be highly evidentiary on the "household" question,

There are quite a few scary fundie Xtian denominations whose members go around calling each other "Brother" and "Sister".

Round up the posse.
5.30.2008 9:53am
Darrell (mail):
What most FLDS-haters fail to recognize is that we are dealing with a religious sect whose beliefs are grounded on 200 year old orthodoxy. The FLDS people are not interested in entering the 21st century because they view our overly materialistic world with great contempt. 200 years ago, polygamy was not illegal and was practiced in this country by God-fearing Christians, Jews, and Islamics alike. 200 years ago, it was normal for 14 and 15 year old women to marry older men with parental consent and start their own families. 200 years ago, arranged marriages between 14 and 15 year old young women and older men was common. Many of our great-great-great grandmothers were those women and I think that they did a much better job of raising their families than most of the women of today. I don’t agree with the FLDS beliefs, but I understand why they believe the way they do and I wonder why a free society cannot accept them for what they are rather then judging them as rapists and child abusers. If we found a 200 year old tribe of humans in a remote part of the woods living the same lifestyle as the FLDS people, would we feel compelled to destroy their families and rip their infants from their mothers’ breasts? The FLDS people belong to a small religious sect that is likely to stay that way. From most unbiased accounts that I’ve read, the lifestyle that they live is their personal choice and does no harm to the rest of American society. They build their own homes, they run their own farms &businesses, and they pay their taxes faithfully. Their men are not creepy old lechers that attack little girls in dark alleys and then rape and murder them. Their “spiritual marriages” are arranged with consent from all parties and they live by strict religious/moral codes that are similar to what was accepted 200 years ago. I am not advocating that we let them do whatever they want, but we need to focus on real incidents of rape and actual physical abuse rather than herding their children away like cattle to be claimed by “more deserving” parents.
5.30.2008 10:19am
BobDoyle (mail):
Snarky, QUIT DIGGING! You'll soon hit China!
5.30.2008 10:41am
Eugene Volokh (www):
Richard Aubrey: You keep posting about why states aren't raiding Muslim compounds, but you haven't actually pointed to any Muslim compounds as to which there have been allegations of illegal sex condoned by compound elders. Now there might well be some such; most Muslims don't live on compounds, but perhaps some do, and perhaps some of them have an alleged social norm of having sex in violation of state statutory rape laws. But before your arguments of supposed unequal treatment become persuasive, wouldn't we need some actual Muslim compound to which to compare the FLDS compound?

Of course, even if we find such a compound in, say, Iowa, the Iowa authorities' failure to conduct a Texas FLDS-style raid with mass seizures might still be justified -- perhaps the Iowa authorities are more careful about following state law, or perhaps Iowa state law is more demanding, or perhaps there's some other explanation. But before we even get to that, let's have an actual data point on the table.
5.30.2008 11:24am
Seamus (mail):
So, if you were a family court judge and you had a father who was a member of NAMBLA (the North American Man Boy Love Association) but who did not have a criminal record versus a mother who has an alcohol problem but is in AA, would you award custody of a young boy to the father because of the "behavior" of the mother why you assume the father is supposedly a paragon of goodness?

A better analogy would be one where the family is intact, the parents are members of NAMBLA, but there is no reliable evidence that either has acted upon the tenets of that group (although they attend meetings with people who have). Do you believe the state has the right to swoop down and take the children of this couple away, just on suspicion?

Members of the KKK do not condone the sexual abuse of children as part of their religion. Nor do "ganganger parents," whatever this means.

OK, if you don't like that analogy, how about this one: if Catholic parents let their son serve as an acolyte under the supervision of a priest, should their son be taken away from them, because of the well known fact that other priests, with the connivance of ecclesiastical higher-ups, have molested altar boys?
5.30.2008 11:40am
Dan Weber (www):
Won't somebody PLEASE think about the CHILDREN??!1one
5.30.2008 11:49am
Darrell (mail):
Snarky and others on this thread give me a distinct and uneasy feeling that they regard all children (and children of religious cults in particular) as wards of the State that are subject to seizure at any time based on almost no specific/objective evidence. I think that the USSR had a system something like that, but I don't think that the founding fathers of our country had this approach to governance in mind when they drafted and signed the U.S. Constitution. Maybe I need to go read it again. Maybe I am living in the twilight zone and I don't know it. But, I think that it is much more likely that people who believe this are the real danger to children and families living in this great nation.
5.30.2008 12:08pm
Richard Aubrey (mail):
EV. I thought everybody knew about them. One in upstate NY, one in VA, and one in, I think, GA.
I'll see what I can find for those not paying attention.
5.30.2008 12:39pm
rarango (mail):
NPR did a piece on Muslim polygamy in Philadelphia on their May 29 All Things Considered--the focus of the piece I heard was on the attitudes of the respective wives; children were not mentioned in the reporting.

I am assuming the issue of Polygamy is related to, but distinct from, issues of child protection. The larger question is, at least to me, is why is polygamy is tolerated by in the US legal system when its practice appears to be illegal? (Having said that I do wish it noted that I do not condemn polygamy and would prefer to leave its practice to consenting adults.)
5.30.2008 12:46pm
Dan Weber (www):
NPR has been doing a series on polygamy this week, and they talked about how Muslims are practicing it in the United States. But they didn't bring up any compounds, at least on the segments that I listened to. Perhaps interested parties could look up their archives on their website.
5.30.2008 12:48pm
Roger Schlafly (www):
[Snarky] Custody of children is not a matter of criminal law. It is a matter of civil law.
So why make a criminal accusation to justify a civil action?
The idea that you must prove someone is unfit beyond a reasonable doubt, the same burden of proof associated with a criminal matter, is completely ridiculous. If we adopted the standard you are implicitly adopting here, we would have to leave children in the custody of parents we know are sexually abusing them, but where not enough admissible evidence has been gathered to convict them beyond a reasonable doubt.
Proof beyond reasonable doubt is extremely easy in this case. A pregnant underage girl is a victim of statutory rape, and a DNA test will prove who did it.
Your views are definitely a threat to the welfare of children.
In my opinion, CPS is a threat to the welfare of children. Its powers should be strictly limited, and it should have to justify everything it does based on actual violations of actual statutes.
5.30.2008 12:48pm
Richard Aubrey (mail):
Okay. There's an embarrassment of riches.
Start with "Jamaat al Fuqra", and "Islamberg"
It will take a long time to get through them all.

With any luck, though, you will early on find one entry or site written by somebody who can be made out to be a nutcase, thus enabling you to dismiss the entire subject.

Now, we all know what these people believe and teach about sex, arranged marriages, age of consent, and so forth. What else do we need? Oh, yeah, silly me. A hoax phone call.

Unfortunately for the folks who haven't volunteered to be in these places, they're among an accredited victim group. Unlike the FLDS whom we can all hate and feel very good about it.
5.30.2008 12:49pm
Dan Weber (www):
Well, rarango beat me to it, but at least I can save myself by helping out with some links to the NPR stories.

Part 1 Part 2
5.30.2008 12:52pm
Kazinski:
Why is the State of Texas persecuting FLDS anyway? Isn't Lawrence vs Texas good law anymore?
5.30.2008 1:10pm
Dan Weber (www):
The Wikipedia page on Islamberg doesn't reveal much, besides a very poorly edited article. Even the Fox News story linked from there doesn't bring up polygamy.

CFP calls them "flourishing" but they really look kind of pathetic.
5.30.2008 1:16pm
Richard Aubrey (mail):
Dan.
I got more pages than I bothered to count and I even spelled it wrong, initially. I used "Islamaberg", which is incorrect.

How, though, does pathetic versus flourishing matter for the subject under discussion? Isn't it all about the children?

Or maybe Texas had some designs on the FLDS property. JaF and Islamberg can't match FLDS for land value. But selling the contents of the magazines at auction might raise a buck or two.
5.30.2008 1:24pm
Eugene Volokh (www):
Richard Aubrey: Can you help me out, please, and point me to some specific stories (the more credible the better) that suggest there's some pattern of illegal sex in the community? We can then try to figure out why the government hasn't been taking action.
5.30.2008 1:27pm
Richard Aubrey (mail):
EV. Using the FLDS model, we don't need no stinkin' evidence. All we need is a hoax phone call. See, the appeals court said there was no evidence. So all we need is the phone call.

And, if you want evidence, using the FLDS model, we can merely look at their belief system. That sufficed in Texas. Why are you being so picky, all of a sudden?
5.30.2008 1:44pm
pete (mail) (www):
Kazinski

<blockquote>
Why is the State of Texas persecuting FLDS anyway? Isn't Lawrence vs Texas good law anymore?
</blockquote>

So Lawrence vs Texas made polygamy and statutory rape legal. Who knew?

Richard Aubrey, are any of those Muslim groups in Texas? From my brief search I could not find any. If there are any in Texas that have credible accusations of statutory rape and polygamy I hope the state does investigate them.

I have gotten tired of both sides in this debate. Too many in the anti-FDLS crowd want to take away the children, including infants no matter what, even if there is no threat or proof of imminent harm. Too many of the FDLS defenders are pretending that there is nothing wrong with statutory rape and polygamy and they should be totally left alone, even though the courts, people, and legislature of the State of Texas disagree with that.

I think that the state should fully investigate this group since there is a reasonable suspicion of abandonment of minor males, statutory rape of minor girls by much older men, and polygamy, all of which are crimes. If you disagree that they should be crimes get the laws changed. I have some sympathy for the investigators since an isolated group where no one wants to come forward like this is hard to investigate, but they have still screwed up by taking away the very young children from their mothers, when it seems pretty clear they were in no immediate danger.
5.30.2008 1:47pm
Richard Aubrey (mail):
Pete. None of the compounds I've read of are in Texas. That leaves fifty-six states, by Obama's count, and various territories.
Three have been reported, none in Texas.

Protein Wisdom has a long thread on the Mormon/Muslim polygamy issue April 18.
5.30.2008 2:20pm
Extraneus (mail):
Nothing at either site about sex at all, both being more focused on a terrorism angle, but Stratfor lists Islamburg (N.Y.), Ahmadabad (Va.) and Holy Islamville (S.C.) as "compounds," allegedly associated with a Pakistani terrorist organization called Jamaat ul Fuqra, and JihadWatch gets into some alleged details on Islamburg. This purported statement from a neighbor might indicate some CPS relevant information, though, if true:
"We see children – small children run around over there when they should be in school," one neighbor said.
5.30.2008 2:48pm
DeputyHeadmistress (mail) (www):
Snarky, et al: Removing the children is not a harmless remedy. It is not 'erring on the side of the child.' It is deliberately choosing a known and certain trauma (especially with the younger children) over a perceived or possible harm. Sometimes the alternative risk is so serious and so highly probable, that it's absolutely the best option, but it's not choosing summer camp over abuse.
It's choosing one detrimental outcome over another.
It is sometimes necessary, but until CPS and others realize that it is an option fraught with real and *certain* emotional and psychological damage to the children, it is a 'remedy' that will be taken far too often, to the harm of the very children the agency purports to want to protect.
5.30.2008 2:49pm
Richard Aubrey (mail):
Extraneus.
What, exactly, did the Texas have as evidence, according to the court of appeals?
See?
You don't need any.

Point I'm making is that FLDS was an easy mark and the Muslim compounds are not. And the FLDS is a group we're allowed to hate. And they don't emphasize guns. And they're not ex-cons. And they won't threaten editors.
Yup. FLDS is the bad guys.
5.30.2008 3:10pm
Dilan Esper (mail) (www):
Richard:

There is evidence-- granted not a huge amount, just 5 children and a photo of Warren Jeffs kissing a minor, plus some testimony from former members of the FLDS including at Jeffs' trial-- that the FLDS permitted polygynous marriages between adult males and underage girls on a number of occasions.

I think what Professor Volokh is asking for is similar evidence that polygynous marriages between adult males and underage girls is occurring at Muslim compounds.
5.30.2008 3:53pm
Richard Aubrey (mail):
Dilan,

Hell, I kissed my granddaughter the other day. Wasn't a sloppy french kiss, of course, but I did. She's going on one.

What we have here is a case of a group we all dislike and who would not resist and who would bring the CPS a bunch of money. Evidence was not necessary.

What additional scraps of evidence wrt Muslim compounds would be necessary? Let's presume it's exactly the same. Same result? Right.

In addition, it appears that evidence is going to be hard to come by, absent an armed raid. However, if somebody does--or for that matter did, I haven't followed it--come out and provides evidence, I'd presume we'd have the local version of CPS all over it. Not.

We know their belief system and you can look upthread and see people claiming the belief system is a sufficient source of threat to kids that we don't actually need any other evidence. WRT Muslim compounds...?

Your problem, Dilan, is that you are presuming 1, that evidence doesn't exist, and, 2, when evidence surfaces that the authorities will act, and, 3, nobody will remember your first two presumptions when the authorities fail to act and you excuse it.
5.30.2008 4:13pm
Richard Aubrey (mail):
Crap. And, 4, that there will never be any evidence.

You see any weak spots there?
5.30.2008 4:14pm
BMS (mail):
Darleen Click:

(1) This case is in Texas, not California. So cut the crap, okay?

(2) This case does not involve a "Romeo and Juliet" scenario where the people in question are within a few years of each other's age.

TX § 22. 011: Sexual assault for anyone to intentionally or knowingly penetrate a person under age 17, other than his spouse. The actor has an affirmative defense if he is not more than three years older than the victim, who is at least age 14

So we're clear, I have no problem with poly relationships - so long as they are between consenting adults of whatever gender and of any number.

--------

I cannot for the life of me fathom how anyone, particularly those in the legal community, can fail to see that a minor female child raised sequestered away in an FLDS compound and handed over to an adult male to be his 2d, 3d, whatever wife has not - and legally cannot - consented to that union.

These are young women are children being forced into relationships and pregnancy without the presence of legal consent.

It's rape.
5.30.2008 5:06pm
anonyninous (mail):
Richard - What EV and Esper are trying to get at is an equivalent to the 'everybody knows . . ' effect that the well-oiled anti-FLDS movement produced.

Once the FLDS moved in, there was a considerable resistance to it by locals. The Pilot is one example, his photos are used by Wiki. They proved fertile ground for anti-FLDS activists and assisted them to get a foothold in the local LE; hence a backdoor conduit to CPS.

The web is muddy now, but prior to the raid sensationalist anti-FLDS propaganda was the most common hits in search engines. That was the result of years of marketing, but the result was the same as propaganda.

The cumulative effect was that know-nothings 'knew it', do-gooder social activists 'knew it', the locals certaily 'knew it', and the folks that carried out the raid all 'knew it'. This is not true for Mohammaden enclaves.
5.30.2008 5:12pm
Eugene Volokh (www):
Richard Aubrey: As you've seen from my posts, I think the FLDS's seizure of the children was not based on sufficient evidence. At the same time, it does seem like there is some reason to think there was sex with minors going on here, and was in some measure condoned by the community.

If you can point to some Muslim group as to which there is comparable evidence, then we can see why it might be treated differently from the FLDS (one possible reason, of course, being that it's in a different state and authorities in different states act differently). Until you do that, I don't really see how your charges of favoritism towards Muslims compared to the FLDS can hold up.
5.30.2008 5:15pm
anonyninous (mail):
Richard - the perfect example is BMS' post above
... fail to see that a minor female child raised sequestered away in an FLDS compound and handed over to an adult male to be his 2d, 3d, whatever wife has not - and legally cannot - consented to that union. These are young women are children being forced into relationships and pregnancy without the presence of legal consent. It's rape.

Yet CPS/police removed scores of internet-connected computers and all the women had cell phones that got confiscated.

Sequestered? LOL Not under the definition BMS gives, yet BMS 'knows it' as certainly as the sun rising. It took years of propagandizing to get folks to that point.
5.30.2008 5:19pm
Richard Aubrey (mail):
EV. You are banking on such evidence never surfacing. You may be right.
I can't imagine that there will never be any evidence rising to the level that fired up the Texas CPS. Not never, ever. Eventually. Then you'll have to think of something else.

Itis entirely possible that such evidence is out there and currently being industriously ignored. As I say, I haven't followed it so that I would know one way or another.

But we do know that for some the belief system itself was sufficent. And we do know about the Muslim belief system wrt various issues which, when the FLDS did them, were considered unspeakable.
5.30.2008 5:26pm
Maybeline:
Texas CPS seizes children in a similar manner all the time - it just doesn't make it in the newspaper. Usually they demand the parents sign an agreement to the action on the spot pending an investigation and most do sign the agreement, naively assuming the investigation will be quick, fair and settle the matter in their favor.

What will actually follow is a vicious set of proceedings wherein you will actually be forced to prove abuse didn't occur, and the child saying the abuse didn't happen will be held as a point of evidence that it actually did happen by "children's advocates".

Each step of the way evidence that nothing untoward occurred will be discarded. Passed a polygraph? Irrelevant. Thorough police investigation reveals absolutely no evidence of abuse, no complaints to counselors, nothing from close friends of the child, nothing from teachers or the school, nothing from doctors? Meaningless. Police find the charges "without merit" and the DA refuses to pursue the case? Doesn't matter.

By this time the child has been yanked from the home for months. The parents have run up thousands in legal bills - as well as having to undergo psychological testing, drug testing, and have CPS workers in their home on demand. And best of all? Throughout you can't even get CPS to return your phone calls or email - and I mean they will not communicate with you.

I suspect they get in this mode of operation because just about the only time you hear or read anything about CPS it is because they have failed to remove a child and something terrible happened. An alternative view would be that they simply have the power to do this sort of thing and they don't care about what damage they're doing.

I know this well as my family was a victim of this CPS behavior.

What is needed here is an effective system of court supervision of CPS.

I take great pleasure in watching CPS being hauled up on their own petard in this case. I hope every one of those involved in this farce gets everything that's coming to them, and I think it would be especially nice if the specific agents involved faced criminal legal sanction.

Hundreds of ruined lives and reputations and hundreds of traumatized children. And accomplished in a raid in the middle of the night in the name of 'protecting' people. There's a reason people have been calling this sort of thing reminiscent of the Nazis - this is exactly what made the Gestapo famous, only then it was Jews that were being "protected".

We're talking here about a state agency run amok, virtually unsupervised and using the power of the state to ruin people's lives and cause actual harm to children. I am astonished that some of the people in this thread do not understand what a great power these people wield with all the caring and competence of the folks at your local DMV.
5.30.2008 6:07pm
davod (mail):
Maybeline: Is the Texas CPS any different to other CPS agencies.
5.30.2008 6:49pm
Gaius Marius:
Justice has finally been served.
5.30.2008 7:19pm
Darleen Click (mail):
This case does not involve a "Romeo and Juliet" scenario where the people in question are within a few years of each other's age.

Oh, BMS, you know something about the FIVE pregnant teens that the rest of us do not?

Look, Warren Jeff's is where he belongs. And there are documented instances of other actual, real abuse.

But right now you have no more cases of statutory rape in the Texas ranch than you would find at the local public highschool.

Do I get to place a hoax call that the pregnant teens at Eldorado High were all the victims of the male teachers at the school whereupon the CPS will swoop in and seize every kid connected with the teens and teachers in the school and ship 'em hundreds of miles away before ANYONE decides to present ... you know... evidence? Not evidence of stuff that went on in high school in Arizona or Utah, but what actually took place with the people the CPS went all gestapo on?

You keep forgetting that this CPS crowed about their dozens of pregger teens ... who turned out to be adults. I don't know about you, but I don't put a lot of credibility in a story that one cannot tell the difference between a 16 year old and a 27 year old, especially when the "assessor" summarily rejects ID's and birth certificates as "fake".

Tell me, BMS, terrorizing a pregnant 18 y/o woman with threats she'll never see her child again...does that make her MORE or LESS willing to leave the ranch?

Good lord, it's people like you (and Texas CPS and Nifong) that make it harder real abuse and real rape to be successfully prosecuted.
5.30.2008 9:33pm
Darleen Click (mail):
Maybeline

All it takes is a vindictive neighbor or relative making an "anonymous" tip to the CPS to visit the stuff of nightmares on people.

And yes, the police can sign off on their report as "unfounded" and the DA can reject a filing on the same grounds but the file opened, even totally fabricated, lives on forever in the bowels of CPS.

It is unconscionable.
5.30.2008 9:40pm
griefer (mail):
haha,
guess what?
FOXnews just reported Jeffs was swabbed for DNA.
I guess we know now what the DNA samples from the FLDS children are for.
5.30.2008 10:10pm
Inspector Callahan (mail):
Uh Oh.

It looks like Bill Dyer (who posted a number of comments above), was right:

Judge Stalls Sect Deal

TV (Harry)
5.30.2008 10:18pm
Darleen Click (mail):
ignore "griefer"

well known troll at ProteinWisdom who posted under the name of "nishi".
5.30.2008 10:24pm
griefer (mail):
oh, darleen, don't be mean. ;)
These good people are aware of my eccentricities.

It is rather understandable that the judge might want additional assurances against flight, when one or more of Jeffs' child brides might be in the population of FLDS children.

CPS said it had additional evidence to present.
5.30.2008 11:03pm
griefer (mail):
tch, tch, darleen.

Dragging in planned parenthood yet again?
What is next? The UN childrapists?

Are you quite sure I'm the troll here?

This question is for Prof. Volokh and Bill Dyer, if they have time.
Ordering DNA testing for 450 children represents a financial burden for the county/and/or state....surely CPS had to give a good reason for the testing?
What could it have been?
5.30.2008 11:49pm
Richard Aubrey (mail):
Is there a solid, provable number for women having had sex with members of FLDS prior to their age of consent? Not counting the ones who were, oh, say, twenty-five and whose birth certificates the CPS was holding upside down.
5.31.2008 12:15am
LM (mail):
Richard Aubrey,

I have two problems with your position:

1. I get the impression you oppose the actions of the CPS and Texas District Court, but would favor similar actions WRT to the Muslim compounds. If that's correct, I don't see how the positions reconcile.

2. Much of your dialog with EV, Dilan and others has been Socratic. If you've said directly what your position is, I missed it. That's why the impression I mentioned above is just that, an impression. And maybe it's all wrong. Maybe you oppose what the CPS did in Texas and would oppose it for the Muslim compounds. Maybe you support it in both cases (I'd be surprised, but I suppose it's possible). Maybe you don't particularly care either way so long as the situations are treated consistently. I could on, but you'd spare everyone more of my speculating if you'd please tell us what your position actually is.
5.31.2008 12:20am
LM (mail):
I could go on
5.31.2008 12:38am
subpatre (mail):
EV - Aubrey's position on Mohammedans is logical, but closer to what you're looking for is in one of the letters from the mental health workers on-site in Texas.

Hill Country Community Mental Health staff assisted in the initial FLDS roundups. The letters were written at the request of —and for— the Salt Lake Tribune. The testimony of these professional mental health workers is damning toward CPS.

This one letter speaks of experience among native Texas populations and selective enforcement by Texas CPS:
As to my issue of the apparent hypocrisy of the basis of the raid, I should address the fact that I am originally from the Texas-Mexico border and spent a number of years working out in the "Colonias" of Laredo prior to my tenure with Hill County. During my time working in the Colonias and my own personal experiences, I have personally known of a good number of children as young as 11 bearing children fathered by older men as well as by teenagers. I find it strange that, at least in these communities in which I am speaking, the Colonias have not been the subject of large raids under the apparent stance hat the CPS has taken on the Yeaning for Zion compound and its residents.

The letter writer isn't addressing polygamy (which really isn't a CPS issue) but speaks directly to the 'culture of oppression' in which girls are expected to become mothers as soon as they are able. That is a legitimate CPS concern.
5.31.2008 1:55am
Richard Aubrey (mail):
LM.

I try to avoid figurative language when speaking to engineers. In fact, I try to avoid speaking to engineers. Never try to tell an engineer a joke whose sophistication rises past that of a whoopee cushion. They just don't get it.
I see I'll have to make some adjustments hereabouts, as well.

I have two points: One is, in my state, our version of CPS is constantly screwing the pooch, taking kids who don't need to be taken (see Hard Lemonade) and returning kids to homes where they will be tortured to death. Their arrogance is the same as in Texas, and their utter lack oc accountability is equal, as well. The state legislature some years ago turned back an attempt to reduce sovereign immunity wrt some of the agency's more egregious screwups. At the least, an occasional successful lawsuit would have provided a safety valve for public perception, which is pretty low as it is. So I don't like Child Abductive Services. A good friend, honest as the day is long, felt so much loyalty to the business--and she was only peripherally involved--as to deny any kind of financial benefit paid to the agencies. I was polite enough not to explain that I knew better. Among the state-involved, some things are just too holy to mess with, and CPS is one of them.

The other point, wrt Muslims, is that VC's sudden attack of Victorian vapors about various sexual perversions seems a bit...convenient. When applied to the kind of fundies nobody on the site likes. Certainly not characteristic. If there were intellectual consistency, whatever outrage is directed at the FLDS ought to be directed at the Muslim compounds. But the first response was to pretend not to know the latter existed. I cashed that one in in about half a minute. The fallback position was to demand evidence of child molestation--which, when you look at it, didn't exist ref FLDS, see the appeals court. I have said I don't know of any.
I could be more cagey than my friends think I am. Perhaps I'm waiting for various VCers to insist stoutly that they'd be just as forthright about the Muslims if only there were the evidence, while sitting on half a dozen solid examples of evidence. Timing.
You don't really know.

So, the second point is...this is all anti-Christian fundie hypocrisy and the Muslims, as an accredited victim group will never, ever face the same scrutiny as the FLDS.

Point is some people haven't figured out how obvious they are.

Clear, now?
5.31.2008 11:18am
subpatre (mail):
Richard Aubrey asked "Clear, now?"

Absolutely not. EV asked for some examples: newspaper accounts, websites, inflammatory photos, books ('My Escape from the Harem' or 'Allah Gave Me Four Mommies'), anything tending to support your claim that Muslims in the US are 1)practicing polygamy 2) in groups, enclaves, a community or other gathered setting. He gave some lattitude, and you haven't produced.

There are articles about Muslim polygamy but not concentrations of them. There are examples of enclaves, but no association with polygamy or child marriage. If there is evidence tending to support that some Muslims in gathered living practice polygamy the burden is on you to point to them. You haven't.

IMO the polygamy angle is a sideshow, somewhat inflammatory but legally insignificant. Anti-polygamy (bigamy) statutes won't stand; they are either interfering in consensual adult relationships or regulating a state recognition that 'spiritual' and 'church-only' contracts avoid. The key is how scrupulously any group obeys societal age regulation.
5.31.2008 2:19pm
LM (mail):
Richard,

Clear, now?

Not completely, but then I do enjoy a good whoopee cushion gag....

Here's what I surmise:

1. You disapprove of what CPS and the lower court did in the FLDS case.

2. You object to the double standard you perceive here in the attitude toward FLDS (and Christian groups, generally) on the one hand, and what you think is a comparably evident abusive situation in some Muslim communities, on the other.

Correct me if I'm wrong about any of that.

What I still can't tell is whether you think the measures you (apparently) object to in the FLDS case should in fact be applied to the Muslim cases, and if you don't, what, if anything, should be done in those cases.
5.31.2008 3:31pm
Richard Aubrey (mail):
LM.

Pretty good. Yes, there's a double standard wrt the FLDS and the Muslims. I've been challenged to provide info about putative concentrations of polygamy and child sexual abuse.
I was challenged to provide info about Muslim compounds, too.
So when that fell apart--I provided info, and the fallback position became provide info of practices--I now might be prepared to provide info on practices, once a number of folks have committed themselves to being stoutly against such practices, even in Muslim groups. Just a bit of rope, you see. Then we'll see what a bunch of educated, intelligent folks can come up with for a further fallback position.

You haven't figured out that, even if I don't have info, time may well provide it. Then what? Maybe EV will erase the posts.

Take what real evidence was available to CPS. That's weak beer. You don't know that it isn't available to other states' CPS equivalent.

Let's go over what CPS had.....

Okay, how about those Cubbies?

It is only speculation, but how would you like to try to find out what's going on in Islamberg or one of its equivalents? Easier to do FLDS.

If rumor and a bogus phone call are all it takes, then the Muslim compounds will be invaded by the local equivalent of CPS any time. Any time.

It would be strange that Muslim practices--scattered among the US Muslim population were not concentrated among concentrations of the US Muslim population. In fact, for those of us here in Michigan, rumors of such in Dearborn are pretty common. Rumors, because the authorities are not going to be caught being Islamophobes and, you know, asking around. I know a retired teacher from Dearborn who told me that girls in that area have a harder time in their adolescent years than we would think an American girl ought to. But everybody turns their gaze.

But those girls are written off by society because of the double standard.
6.2.2008 6:49am
griefer (mail):
Well....there is an even stronger analogy between the FLDS and muslim populations in the UK.
In both cases a religious cult exploits citizen rights under the guise of religious freedom to parasitize the State.
Both UK muslims and Jeffs' "Bleed the Beast" FLDS polygs exploit the state welfare system.
Both UK muslims and the FLDS infiltrate local government to gain control. County government in Colorado City, Colorado, for example, has been completely co-opted by the polygs.
The only difference is that is Texas is trying to do something about it.
6.2.2008 7:39am
Richard Aubrey (mail):
Reports from Britain indicate that Muslim cops turn over the addresses of girls in protective custody as part of their religious duty.

A television station did an undercover of a mosque. The local police started a criminal investigation, later thrown out by the courts. The top cop who ordered the investigation was Muslim.
6.2.2008 10:03am
Moneyrunner43 (www):
Richard,
I especially enjoyed this comment:


VC's sudden attack of Victorian vapors about various sexual perversions seems a bit...convenient.



I am both amused and baffled that in a blog devoted to the law, logical consistency does not appear to be a requirement. The support of one – once despised – sexual practice does not appear to cause any introspection regarding other, equally common sexual practices as a matter of both morals and law.
6.2.2008 8:06pm
Richard Aubrey (mail):
Money.
I think we'll see some loosening up, a la the Jazz Age, maybe, if a certain other group stands accused.
Yup. I'm certain of it.
6.2.2008 8:47pm
Richard Aubrey (mail):
I mean Edwardian.
6.2.2008 10:14pm