[What follows is something I was working on prior to taking more than a weeks' vacation in an area with no internet access... And yet, we still managed to have a great time. (Yes, kids, it's true: there IS life without technology!) I have not even checked to verify any of this is still timely... Live with it. Or don't. 
]
Contrary to my predictions, and totally surprising to me, the Constitution actually won recently… sorta.
The victims of Texas tyranny were told (some of them, anyway) by the Texas Supreme Court that they could collect their kids and go home.
In the words of Cinderella’s wicked Stepmother, “If.“
[And can ya' tell I have young daughters?]
The Yearning for Zion Ranch is a 1,700-acre complex near Eldorado, Texas, that is home to a large community associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints. On March 29, 2008, the Texas Department of Family Protective Services received a telephone call reporting that a sixteen-year-old girl named Sarah was being physically and sexually abused at the Ranch. On April 3, about 9:00 p.m., Department investigators and law enforcement officials entered the Ranch, and throughout the night they interviewed adults and children and searched for documents. Concerned that the community had a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children, the Department took possession of all 468 children at the Ranch without a court order.[1] The Department calls this “the largest child protection case documented in the history of the United States.” It never located the girl Sarah who was the subject of the March 29 call.
[1] See Tex. Fam. Code § 262.104(a) (“If there is no time to obtain a temporary restraining order or attachment before taking possession of a child consistent with the health and safety of that child, an authorized representative of the Department of Family and Protective Services . . . may take possession of a child without a court order under the following conditions, only: (1) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (2) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (3) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse; (4) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse . . . .”).
[Forgive me for being thick, but which, exactly, of the four situations described in the Family Code above, existed in Eldorado on 3 April? I'm counting none....]
While the Wally and the Supremes didn’t actually lay down any additional requirements, they also didn’t clearly reprimand the CPS fascisti, either. Enter Texas District Judge Barbara Walther [a.k.a. "the source of all that is unholy in West Texas" -- okay, maybe not allthat's unholy], once again winner of the “Brownshirt of the Week” award (with multiple gold stars in lieu of additional ribbons).
When SCOTex handed down its ruling, it left a lot of grey area in it. The decision states that they are intentionally not addressing anything outside the precise confines of the request before them, and supporting the appellate ruling.
The Department petitioned this Court for review by mandamus. [Funny, CPS knows about common law when it works for them. Selective amnesia?] 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 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. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.
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, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR [Suit Affecting the Parent-Child Relationship] 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. The Department’s petition for mandamus is denied.
Walther decided that these lucky people –
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against whom no charges have been brought,
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who remain free of taint of wrong-doing,
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whose one public sin is that of being visibly different from the general populace
these more-or-less upstanding members of the community, if not precisely pillars thereof, must:
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present themselves to the state in order to retrieve their kidnapped children (after having gone to the four corners of the State across which their children were scattered — on their own dime)
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promise not to leave the State of Texas with their kids
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submit to the humility of having no less well-qualified guardian of children than Oz, the Great and Terrible for parental re-education
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endure the further insult and injury of making themselves available at all hours for inspection by the same agency that illegally and unconstitutionally seized their children and defamed both their character and their morality [as popularly defined, anyway].
All of which falls within the scope of the decision handed down by Wally and the Supremes. No big deal, right? Kids are back to their homes and better off than they were before, even though th parents are foaming-at-the-mouth sexual deviants anyway, right?
Not so much.
Unless you believe that the severity of the accusation outweighs the preponderance of the evidence, or that the fact that they’re “just weird” justifies any possible actions the State may take against them. The fact that they were not even formally charged with a crime means that:
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CPS was entirely unjustified in entering the compound
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The various state and county organs involved in the kidnapping were entirely unjustified in seizing any YFZ records or persons
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Any “evidence” generated as a result of such seizures, contrary to the grandstanding of career politicians masquerading as executors of justice, is invalid and must be dismissed
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Any cases being developed against any individuals involved with YFZ, based on such illegal evidence, must be thrown out
[My Lovely Bride has always had a weakness for cop dramas: NYPD Blue, Law & Order, etc. So we have watched our fair share of such. Ergo, I know all about the "poison fruit of the poison tree" argument in discovery. Maybe it doesn't translate when the cops are defrauded into a raid, but it certainly seems like it should. If "Sarah" hadn't called, after all, we wouldn't be having this conversation. But that's logical; common law, though common sensical, is not necessarily logical. Any professional barristers who can, please point out any mistakes in my reasoning.]
I feel compelled to interject here my utter disgust with “Christian” groups and people who have been cheering on this Orwellian nightmare. In my own congregation of believers, I incredulously found myself defending potential polygamists and child abusers, based entirely on the fact that the initial phone call from “Sarah” had proven to be a hoax… and this was the Sunday after the raid, over a month ago. Why is it that a sea lawyer like me could see with perfect clarity the root of the issue, but career jurists still can’t find the noses on their faces?
The (somewhat) dissenting opinion:
The testimony of Dr. William John Walsh, the families’ expert witness, confirmed that the Fundamentalist Church of Jesus Christ of Latter Day Saints accepts the age of “physical development” (that is, first menstruation) as the age of eligibility for “marriage.” Finally, child psychologist Dr. Bruce Duncan Perry testified that the pregnancy of the underage children on the Ranch was the result of sexual abuse because children of the age of fourteen, fifteen, or sixteen are not sufficiently emotionally mature to enter a healthy consensual sexual relationship or a “marriage.”
Evidence 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. Id. § 262.201(b). This evidence supports the trial court’s finding that “there was a danger to the physical health or safety” of pubescent girls on the Ranch. Id. § 262.201(b)(1); see id. § 101.009 (“‘Danger to the physical health or safety of a child’ includes exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.”); cf. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (affirming the termination of parental rights for “endanger[ing] . . . the physical well-being of [a] child,” and holding: “While we agree that ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.”). Thus, the trial court did not abuse its discretion in finding that the Department met section 262.201(b)(1)’s requirements.
What can we learn from the two opinions? The minority of the SCOTEx look at the situation, see that no crime was committed (or at least can be proven), and says, “But we knowthey did something, and the ends justify the means, so these kids shoulda been taken, regardless of the facts!” The majority of the Court looks at he situation, and says, “There was no crime, and the kidnapping was illegal, so the kids must be returned to their parents. However, since we’re pretty sure something has to be going on out there — those people are just weird!– we’re going to allow further intrusion into and disruption of your lives, make sure you’re stomped under our jack boots, just in case. I seriously don’t know which one was worse — okay, the minority Supremes woulda not let the kids go home, so I guess that tips the scales. Either way, none of these yahoos needs to be re-elected again. Or the idiot that started it all in Tom Green county.
Why do I have such a low opinion of the state’s ability to raise children, or oversee such activities? Aside from the obvious, I mean? In 2004, State Comptroller Carol Keeton Strayhorn issued a special report [follow links for text of the report] detailing abuses in the Texas foster care system. The graph below provides food for thought on whether the State of Texas is the best bet for kids, even, arguably, those who are known to be in abusive situations at home. The State’s record for abuse is certainly not much better than that of the general populace.
[And bear in mind, many of those abused in the system are already victims of abuse by their families, the justification the State used to throw them into the grist mill of ...the State. Imagine how damaging that must be, to find yourself being treated as badly or worse than the situation from which you were lately rescued!]
