The Supreme Court addressed the removal of the children from the ranch:
“The Department [Texas Department of Family and Protective Services] took possession of all 468 children at the Ranch without a court order.”
“[The Department] never located the girl Sarah who was the subject of the March 29 call.”
Essentially, the Court concluded that CPS acted extralegally and also acknowledged that the cause of the raid was never substantiated.
The Supreme Court then reviewed the district court’s adversary hearing, concluding:
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 Supreme Court also acknowledged that other aspects of this case may come to their jurisdiction:
Although the SAPCRs (Suits Affecting the Parent-Child Relationship) involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues.
26. The Texas Court of Appeals, Third District, found that evidence to support the CPS claim that the FLDS community constituted a single household “was not legally or factually sufficient.” The court summarized the CPS reasoning as follows:
All 468 children were removed from the ranch under the theory that the ranch community was “essentially one household comprised of extended family subgroups” with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch “household”.
The court then proceeded to demolish the foundation of the CPS position, based on statements from CPS witnesses:
The notion that the entire ranch community constitutes a “household” as contemplated by section 262.201 [of the Texas Family Code] 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 [Texas Department of Family and Protective Services, the parent organization of which Child Protective Services is a division] 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”.
The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.
The appeals court ordered the district court to “vacate its temporary orders granting sole managing conservatorship of the children of the Relators [the 38 women who participated in the appeals case] to the Department [of Family and Protective Services].” In spite of this blunt and well-reasoned legal rebuff, CPS is pressing forward and has appealed the decision to the Texas Supreme Court.
27. After announcing publicly that Dale Barlow was wanted for the rape and physical assault of “Sarah,” Texas officials later dropped charges against him, without even having the decency to state why the charges had been dropped. By 2 May, the charges had been dropped, but the Texas Department of Public Safety was not willing to admit the date when the charges had actually been dropped.
If the charges were dropped because there is no evidence that Dale Barlow abused “Sarah” or because there is no evidence that “Sarah” even exists, that should be publicly stated, if not incorporated into a public apology. Simple human decency dictates that Dale Barlow’s name should be publicly cleared if, in fact, the Department of Public Safety knows him to be innocent of the offenses that they alleged against him in public.
If CPS has reason to believe the calls that triggered the raid were hoaxes, they have a moral obligation to admit that fact. As a material fact that is relevant to the legal cases currently being heard, CPS has a public duty to reveal the information in their possession related to those calls.
The contest begins, in which the state of Texas attempts to topple King George’s longstanding record of governmental abuses by stripping all 468 children from their parents in an unpopular community.
1. Legal action should be directed at individuals, based on evidence of specific actions committed by those individuals, rather than being directed against a community.
2. The government actions against the FLDS appear to violate the first amendment guarantee of freedom of religion.
3. The government actions appear to violate the fourth amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
4. The government actions appear to violate the fourth amendment requirement that search warrants be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
5. A CPS spokesman said it doesn’t matter if the calls that provided the excuse for the raid were genuine.
6. The government actions appear to turn the fifth amendment guarantee that citizens shall not be “deprived of life, liberty, or property without due process of law” into an empty promise.
7. We can only hope that the government actions against the FLDS violate the fourteenth amendment guarantee of “equal protection.”
8. Apparently, one of the key reasons for taking all the FLDS children into custody was that the FLDS encourage early sex. Even if that is true, it is at least somewhat hypocritical to pretend that the same does not happen in the mainstream culture.
9. The government actions ignore the benefit of historic precedent.
10. The Texas approach to civil liberties demonstrates that colonial Rhode Island benefited from a more enlightened approach to civil liberties 350 years ago than Texas does today.
11. With the FLDS children having been in state custody for over one month, state officials still have not enabled a comprehensive program of parental visits.
12. The fact that several state laws were created specifically to place the FLDS religion in the crosshairs of Texas family law appears to fit with the other indicators that point toward a religious motivation for the government actions.
13. There was a deplorable lack of due diligence taken by government officials before initiating the raid.
14. Weighing allegations of sexual abuse by the FLDS community against known problems with the Texas foster care system, it is not clear that removing all the children from their homes and placing them in state protective custody was the lowest risk option for these children.
15. Outside of the other traumas the FLDS children will face in foster care, a large number of the FLDS children are statistically likely to be placed on psychotropic drugs while in foster care.
16. Court testimony indicating that Child Protective Services relied on information from a former FLDS member and from a psychiatrist familiar with the Branch Davidians appears to indicate that CPS knew the conclusions they wanted to reach before moving against the FLDS community.
17. Mental health professionals who helped at the shelters in San Angelo where the FLDS children were initially detained have complained about the way the FLDS were treated.
18. At least twenty-six of the “children” CPS took into custody are actually adults.
19. The Bishop’s List, a set of church records that was used in the initial court hearings, has now been released, and it is most shocking for its lack of corroboration of government claims.
20. In the continuation of what appears to be a government trend to air unsubstantiated allegations, DFPS reported as a “cause for concern” that at least 41 of the children had at some point suffered from broken bones.
21. The children seem to be suffering significant health issues since entering state care. As of 28 April, nine of the children had been hospitalized.
22. Comments made by a CPS spokeswoman the day after the FLDS children aged five and over were separated from their mothers grossly oversimplifies the grieving and recovery process in the wake of the children being separated from their parents.
23. CPS appears to be having a hard time keeping track of all the children. An 11 year-old boy and a 16 month-old boy were reported missing as of 27 April, but “child welfare workers in Texas say they’re not worried.”
26. The Texas Court of Appeals, Third District, found that evidence to support the CPS claim that the FLDS community constituted a single household “was not legally or factually sufficient.”
27. After announcing publicly that Dale Barlow was wanted for the rape and physical assault of “Sarah,” Texas officials later dropped charges against him, without even having the decency to state why the charges had been dropped.
28. Although the district judge who presided over the initial custody hearing permitted nursing mothers tostay with children who are twelve months old or younger, she did not grant that same privilege to mothers nursing infants older than twelve months.
29. The first search warrant against the FLDS and its associated affidavit appear to be constitutionally weak.
30. The fact that Texas officials performed interviews while executing the initial search warrant that had no relationship whatsoever to the initial search warrant leads to significant questions about the manner in which that warrant was executed.
31. A CPS supervisor’s testimony about her experience while interviewing girls in the FLDS community on 3 April demonstrates an irony too strong to not find disappointing.
33. The youngest girl who CPS claims is an underage mother is, indeed, underage but is neither a mother nor even pregnant according to the lawyer representing her.
34. The Texas Supreme Court minority opinion appears to complain about use of the Fifth Amendment.
35. According to the Supreme Court’s majority opinion, the Texas Department of Family and Protective Services “took possession of all 468 children at the Ranch without a court order.”
36. Even though the appeals court explicitly rejected the CPS interpretation that the YFZ Ranch constitutes a single household, Judge Walther persisted in treating the FLDS in a manner that remained, essentially, a one-household approach.
40. In addition to the separation of mothers and children being unnecessary, the manner in which the FLDS children were separated from their mothers was inhumane.
41. Texas officials allegedly knew, before entering the YFZ Ranch, that the only person who was suspected of causing harm to one of the FLDS children was not present at the ranch, leaving the officials with no valid constitutional reason to enter the ranch.
42. CPS didn’t allow an FLDS mother to be with her child, even though the child was hospitalized with a 104 degree fever and the child’s doctor had requested the mother’s presence.
45. A CPS worker admitted that CPS procedure calls for service plans to be based on evidence, even though that procedure wasn’t followed in dealing with the FLDS.
25. The massive state actions will be expensive to taxpayers. The initial costs were estimated as being greater than $25,000 per day. A spokesman for Governor Perry said, “We are looking under the couch cushions right now to see what’s available to pay for those operations.” A state senator who represents the area where the FLDS live said that local taxpayers shouldn’t be expected to cover the expenses of the governement actions but also admitted that the current state budget does not include money for this type of event.
16. Court testimony indicating that Child Protective Services relied on information from a former FLDS member and from a psychiatrist familiar with the Branch Davidians appears to indicate that CPS knew the conclusions they wanted to reach before moving against the FLDS community. Relying on the witness of a former church member to provide evidence relevant to actions that occurred in Texas and that the former member could not possibly have witnessed is about like using Benedict Arnold – after he had joined the British – to provide a legal basis for a case against George Washington regarding actions Washington took after Arnold was no longer part of the colonial army. Bringing in a psychiatrist familiar with the Branch Davidians to try to understand the FLDS seems to present a preference for jumping to conclusions, because of the implicit presumptions that the FLDS are a cult and that any one cult may be judged based on understanding any other cult. A CNN producer noted that the psychiatrist referred to the FLDS as a separatist group “but acknowledges he has done little reading of their doctrine.” In fact, another expert, who would seemingly have a background better suited to this case – a religious studies Ph.D. who lives in Texas and is an expert in the FLDS – actually offered his help to CPS and was turned down.
17. Mental health professionals who helped at the shelters in San Angelo where the FLDS children were initially detained have complained about the way the FLDS were treated. A must-read article published by the San Antonio Express-News says that these workers described FLDS mothers “who appeared to be good parents of healthy, well-behaved and emotionally normal kids.” The workers complained that the separation of the children from their families was both unnecessary and traumatic, and the workers complained about the behavior of CPS personnel. The article quoted one of the mental health workers as writing “I have worked in Domestic Violence/Sexual Abuse programming for over 20 years and have never seen women and children treated this poorly…. It makes us all wonder how safe anyone is who has children.”
14. Weighing allegations of sexual abuse by the FLDS community against known problems with the Texas foster care system, it is not clear that removing all the children from their homes and placing them in state protective custody was the lowest risk option for these children. The Texas Appleseed Report concluded that “there are a number of flaws in Texas’ foster care system, and that as a result, children in the system are at risk of significant harm.” The report indicated that there were 1647 complaints of abuse or neglect in 2006, 250 of which were judged to be real. With 41,305 children under CPS oversight at the end of 2006, that yields a rate of more than 6 cases of documented abuse per 1,000 children. It is nearly certain statistically, given the large number of FLDS children that were taken into state custody, that some of them will be abused while they are in state custody. And these statistics don’t even address the anxiety experienced by children being separated from their parents or the cultural dislocation that the children will face. The court testimony just doesn’t provide enough evidence of possible abuse of all the children to outweigh the documented problems with the system into which these children have been hurled.
15. Outside of the other traumas the FLDS children will face in foster care, a large number of the FLDS children are statistically likely to be placed on psychotropic drugs while in foster care. The Texas Appleseed Report cited a 2006 study by the Texas Department of State Health Services (DSHS) regarding the use of psychotropic drugs in the Texas foster care system. The DSHS study reported that over half of Medicaid-eligible teenagers in the foster system were prescribed psychotropic drugs. One of the reasons for this high rate of prescription drug use is that “even fundamentally normal children who have been taken from their homes and families can become aggressive and ’emotionally reactive’ due to a lost sense of trust, and their conditions are only worsened by multiple placements and frequent caseworker turnover.”
11. With the FLDS children having been in state custody for over one month, state officials still have not enabled a comprehensive program of parental visits. As mothers across the nation observed Mother’s Day today, we should pause to reflect that 464 FLDS children are currently separated from their mother, their home environment, or both. If the state has the logistical wherewithal to take all the children into custody, it has the obligation to find the logistical wherewithal of enabling a fair program of parental visitation.
Let’s take Sarah Steed’s case as an example. Her six children have been divided among four foster care locations in three cities: San Antonio, Waco, and Waxahachie. Staying at the YFZ Ranch near Eldorado obviously was not an option for this mother, since that would place her at three or more hours drive from all of her children (see mileage table below). She picked what seems the most logical choice for such an emotional decision: San Antonio, where her nursing baby is located. That puts her 180 miles and 245 miles, respectively, from the other cities where her children are located.
12. The fact that several state laws were created specifically to place the FLDS religion in the crosshairs of Texas family law appears to fit with the other indicators that point toward a religious motivation for the government actions. After the FLDS moved to Texas, laws were changed to eliminate the privilege of not being forced to testify against one’s spouse in a polygamy case, to eliminate the presumption that a spouse was innocent when entering a union with a polygamist, to increase the legal age for marriage from 14 to 16, to outlaw marriage to a cousin or a step-parent, and to criminalize officiating at, or being a partner in, a polygamous marriage. A Texas state representative said, “Our laws needed to be updated even if this group hadn’t come to Texas.” He also protested that “we didn’t invite them to come here, but if they’re going to come here, they’ve got to obey Texas law” (especially the ones written after they arrived, one would presume). Although some of these laws were clearly outdated, it also seems clear that the entire collection of laws never would have been passed without the arrival of the FLDS in Texas. In fact, a law professor was paraphrased in a law.com article as saying that he teaches his students about laws enacted in 2005 that were “aimed directly at the FLDS ranch and its members.”
13. There was a deplorable lack of due diligence taken by government officials before initiating the raid. It now appears quite possible that the calls which triggered the raid were placed from Colorado by a person with a history of placing false reports. In a previous false reporting incident involving the alleged caller, Colorado police successfully tracked her down. How difficult would it have been for Texas officials to at least establish that the calls were being made from out-of-state before deciding to call out the cavalry and raid the FLDS community near Eldorado? In the calls to the Texas domestic violence shelter, the caller claimed that she had been treated at a hospital for broken ribs. How difficult would it have been to check local hospital records to see if a young girl wearing a prairie dress had been treated for broken ribs? The caller claimed that the treatment involved wrapping her torso with an ace bandage and being told to “take it easy for a few days.” How hard would it have been to realize that is not a very credible hospital treatment for broken ribs? I understand that chest wraps are no longer recommended for broken ribs, because of the risks they involve. Also, it seems that pain medication, anti-inflammatories, and ice would likely be indicated rather than just rest. But the true giveaway that something isn’t quite right in this story is the advice that the rest should be for “a few days.” It is hard to believe that a story involving a few days of rest for broken ribs – rather than several weeks – wouldn’t set off a few alarm bells in the head of a thinking adult. The caller also claimed that Dale Barlow was her husband. How difficult would it have been to discover that Barlow had not visited Texas since the FLDS community was established there? Where is the evidence that the merits of the case were critically evaluated? It is a bit too ironic that state officials are constantly accusing FLDS members of lacking critical thinking skills.
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