So many things I could have done---but worry over the YFZ Ranch got in the way. Now that this case is in court, I've been looking the issue from two legal points of view:
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. See also the Fifth Amendment on Due Process.
Is this case based on a fraudulent phone call to authorities? One commenter said:
If these kids are actually being abused the government has stepped on their dicks so badly they won't be able to do anything about it.
I think this is an accurate summation of the legal problems in the case. If law enforcement searches, seizes, or incarcerates a person under false pretenses, it doesn't matter what is found after the fact, it is inadmissable. It now appears that the phone call upon which this is all based is fraudulent. If so, the only way the children can be taken away from their parents will blatantly violate the rights of U.S. citizens. It will set a dangerous precedent for many groups including Mormons, Muslims, homeschoolers, and the Amish (who have a very isolated lifestyle and the practice of young marriages).
THE FACTS:
- No complaining victims exist and the original abuse allegations were fraudulent, pumped up in the media by anti-polygamist activists.
- No pregnant girls were found at the YFZ Ranch who were under 16 (the legal marriage age in Texas, with parental consent).
- 10 women between the ages of 16 and 19 were listed as married to older men. Five were listed as having children.
- Angie Voss from the Texas Department of Family and Protective Services has testified that the supposition that abuse may happen some day in the future justifies the removal of over 400 children of both sexes and all ages from their environment.
Read More:
In Distressed About the FLDS Situation, J. Max Wilson writes about his experiences reporting abuse to CPS in Texas and being told that "unless there is physical evidence of abuse, the chances of getting abused children removed from their parents into the safety of state care are practically nil." He questions why his experience was so different from what happened to the FLDS, and wonders what the implications may be for homeschoolers.
D and E Grounds
§ 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP.
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (1 that the parent has:(D knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. See also Texas Family Code, Chap. 262.
Ron in Houston puts it this way:
There was once a good mother. She loved her kids. She took pretty good care of them and they loved her. She was by no means was a perfect mother, but then again, who among us is the "perfect" parent?
Mom's only flaw as a parent was that she allowed older men around her 14 [let's change this to read 16, since we have no evidence of 14-year-old YFZ brides] year old daughter who wanted to have sex with her daughter. She was so addicted to the approval of these older men that she would forget about her daughter to obtain the approval of these men she admired.
Mom went before a judge who said that since she was so dependent on the approval of these older men that she could not protect her child and therefore her children needed to be placed in foster care.
The judge never knew what the mother's religion was. The judge just acted on the facts of the case.
Ron's parable will appeal to those who see sex between 16-19 year old girls and much older men as just plain wrong no matter what religious views might dictate. Since the plural marriages are unrecognized by the state, these relationships can be labeled statutory rape, regardless of whether or not the parents supported the union. Those who take this view will likely agree that the younger children on the compound should be removed from a home and religion that will teach these principles.
Now, I've got some leading questions to ask you. I'd love to hear the opinions of some of our Bloggernacle lawyers!
--Is it legally justified to remove ALL women and ALL children from their homes based on a warrant for the arrest of ONE man and in looking for ONE young woman described by the 9-1-1 caller as an abused vicitm?
--Do you think that the that the sealed affidavit that triggered the investigation at the ranch listed sufficient evidence to search "each and every residence, structure, school, vehicle, place of business, temple or other facility" of an "unincorporated city or neighborhood of 300 to 400 residents that includes single and multiple family homes, a doctor's office, a cheese manufacturing plant, a cement plant and other buildings spread over 1,691 acres"?
--Is it legally justified to order DNA evidence from all families based on one allegation?
--Do the Fourth Amendment rights will override the D and E statute and the Texas Family Code? Or does it not apply since this is a civil and not a criminal case?
--Do you think the religion of the parents should be taken into account in this case?
--Is religious indoctrination currently a legal justification for removal of a child from a family?
--Do you think the families are being presumed guilty until proven innocent?
*Please attempt to confine your remarks here to your thoughts on the legal issues, and refrain from expressing your personal moral outrage on either side of the question.
Posts
6 comments:
BiV - I read your blog almost every day. Your posts are well researched and thought provoking. I am not a lawyer, but I do work for a law firm. We've discussed this situation and no one can come up with a situation in which the 4th ammendment wasn't violated in the original search. This alone seems to indicate that all of the children should be returned. The constitution always 'trumps' local laws. If it didn't then what would be the point of having it?
Personally, while I don't agree with the FLDS, this action sets a very dangerous legal precedent, one that I don't think our country wants to go down.
My dad is a retired superior court judge, and the situation with the FLDS reminds me of many dinner-time conversations we had about other high-profile cases. Dad has always cautioned us not to jump to conclusions based on the limited, and usually distorted, facts presented us by the media. He's encouraged us to wait for all available evidence so we can make a more balanced judgment. In this case, it is definitely going to take time to sort out what really went on at the ranch.
With Dad's advice ever-present in my head, I have tried very hard to keep a balanced perspective on all of this. I have witheld my judgment about CPS, because I wanted to see what kind of evidence would come forward to support their actions. So far, I have not seen enough evidence to justify such drastic measures. I do not doubt that some abuse and/or under-age marriage has probably taken place on the compound. But as has been mentioned, the guilt of one does not make the entire community guilty. Abuse can often happen to our friends and neighbors without us being aware that it is going on. I just don't see enough probable cause to justify a full-scale raid like this.
I do believe they had cause to go into the ranch and perhaps seize documents in an effort to determine whether under-age marriages are occurring. But in my opinion, those children were removed from their homes unlawfully. Of course, I am waiting to see what other evidence comes to light, but as of right now, I feel the rights of the FLDS have been seriously violated.
Under different criminal circumstances (like a drug bust) this may be true according to the allegation). In the case of child abuse, the burden of proof to get a warrant is extraordinarily light due the nature of the crime: children. Therefore, even if it was based on a false phone call (which looks very likely) it won’t be thrown out of court. In cases of child abuse allegations I think most of us would agree that false postitives being looked into are preferable to overlooking abuse due to high standards afforded other situations.
“No complaining victims exist and the original abuse allegations were fraudulent, pumped up in the media by anti-polygamist activists.” And “No pregnant girls were found at the YFZ Ranch who were under 16 (the legal marriage age in Texas, with parental consent).”
I’ve seen interviews where women confess that 16 year old girls have been married off, but say it’s very rare. Just because no one is complaining doesn’t mean it’s not illegal. Even if the 16 year old girl says I’m ok with it, it’s still illegal. Some argue that it’s ok because in Texas very young girls can be married off with parental consent, which is true, but FLDS “marriages” are not legally binding marriages but rather religious ceremonies unlike LDS marriages; that’s why your argument founded on the “16 yr old marriage age with parental consent” is flawed. A lot of people say, “Why aren’t they arrested for being polygamists?? That’s illegal right?” Right, but are not ‘true’ polygamists because according to the state of Texas, the man only married his first wife and the others are common wives, which could carry implications of bigamy, but that’s another topic.
“Angie Voss from the Texas Department of Family and Protective Services has testified that the supposition that abuse may happen some day in the future justifies the removal of over 400 children of both sexes and all ages from their environment.”
That’s right. If children are in eminent danger of abuse they can be removed legally. I think we’d all agree that fathers and mothers that are ok with child abuse raising their sons and daughters to believe it’s ok is definitely grounds for removal under this rule.
“Is it legally justified to remove ALL women and ALL children from their homes based on a warrant for the arrest of ONE man and in looking for ONE young woman described by the 9-1-1 caller as an abused victim?”
Absolutely. If the police go into a house to ‘rescue’ one abused child and while inside find 100 more kids who have possibly been abused or are in danger of abuse then fo shizzle they’ll take ‘em all. Better safe than sorry right? If it turns out there are parents who disagree with the young ‘marriages’ and wouldn’t farm off their children until they’re legal then great, give them their kids back. However, if everyone there says they’ll do anything the prophet asks, and the prophet is known to ask for something illegal, that’s the problem-- It’s the mentality of the religion.
“Is it legally justified to order DNA evidence from all families based on one allegation?”
Yes it is. If you cannot obtain truthful ages and correlations between the members because of a cover-up and lack of records, you need to create the records to find out who belongs to who. The sad part is, the women there are allegedly covering up child abuse by saying the young babies belong to THEM instead of their teenage children. So the police have an obligation to find out the truth.
“Is religious indoctrination currently a legal justification for removal of a child from a family?”
They’re not being persecuted for their religion. Everyone’s known they live there and that they’re polygamists for years. Even if the State disagreed with their practices they’ve been left alone until now.
”Do you think the families are being presumed guilty until proven innocent?”
Of course not. But in an abuse case like this you can’t just leave the kids with the parents until you find out what’s going on. Especially in this situation when it seems highly likely that pregnant teenagers would be moved to other compounds so the authorities don’t find them. Once they’re proven innocent the kids can go back.
Is the media biased? Yes. Have the courts done something illegal yet? I don’t think so. Are they being stern and thorough, yes as they should be when it’s feared that 400+ children are possibly in an unhealthy environment. Does my heart go out to the FLDS families… absolutely.
I'm not a lawyer, but it completely blows my mind that a complaint of abuse in one household could be considered probable cause to issue a warrant to take the kids away from the neighbors. To me it looks clear that their constitutional rights have been massively violated, and I agree completely that this is (not only scary for everyone's rights, but) hugely counterproductive for creating a situation where insular communities will cooperate with local authorities to stop those cases of abuse that do exist.
I am not a Mormon but I get so angry at the mob mentality- here is what I wrote today on a New York Times Blog-
All this generalization, as if all 437 children have been abused, if any. Nothing is proven- what happened to American's ability to think critically, instead of having a mob mentality lead by the feeding frenzy of mass media and bloggers. Where is the blogger who will stand up for due process and innocence until proven guilty? Did the love of our constitution go by the wayside with the Patriots Act? Abuse does not occur in any higher percentage in any particular church or in any particular community. it is everywhere. And do not forget that the marriageable age in Texas was only recently raised to 16 years from 14 years, so before you go riding your merry bandwagons to the lynching, maybe you should wait for due process, if it occurs....
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