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.