I live about twenty miles from the polygamist ranch near Eldorado, Texas, and my office is about three blocks from the courthouse where the child welfare case(s) are being handled. A few observations, from up close:
The Schleicher County sheriff seems to have been in firm control of the law enforcement activities at the ranch, and there really is no federal presence or role at all. This probably has a lot to do with the lack of any kind of violence or armed stand-off, in contrast to the Branch Davidian, um, incident, where the feds disregarded the local sheriff’s advice and went in heavy.
I am perfectly willing to believe that there were all sorts of sexual abuse of teenage girls – illegal marriages, statutory (and perhaps even forcible) rape, etc. If the current allegations pan out, I think that the men involved in what amounts to a sex slavery ring should be jailed, and I am even willing to grant that the state should have the authority to take custody of children who have been subjected to this kind of abuse. For the moment, let us leave avoid the well-ploughed ground about the appropriate age of consent for sex.
That said, this case increasingly looks to me a like a serious overreach by the state, and one that practically begs us to conclude that the state was motivated to take down this community, even when doing so required it to go beyond what was necessary to ensure the welfare of the children.
(Warning: Actual statutory language and legal analysis follows below the fold) The state has taken custody of all the children at the ranch, alleging abuse. The applicable definition of abuse is found in the Texas Family Code Section 261.001. Relevant provisions include (emphasis added):
“Abuse” includes the following acts or omissions by a person:
(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
(E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, [citations omitted]
(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage in sexual conduct [citation omitted];
Note that some of these definitions include allowing another to abuse a child.
The standard for the state to take custody of a child is found at Texas Family Code Section 262.101.
An original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:
(1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child’s welfare;
(2) there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C; and
(3) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child.
(1) First question: Why the boys?
I have heard nothing that indicates that any of the boys at the ranch were physically, emotionally or sexually abused. The state seems to be arguing that, because they were being raised in a polygamist community, they were being raised to be abusers. I am very uncomfortable with the idea that this really meets the definitions of abuse set forth above. Are we really prepared to conclude that raising someone with a certain set of religious/social beliefs amounts to “an observable and material impairment in the child’s growth, development, or psychological functioning” or is a “mental or emotional injury”? Are we really prepared to apply that standard across the board?
(2) Second question: Why the young girls?
Again, I have heard nothing that indicates that any of the young girls at the ranch were physically, emotionally or sexually abused, and have the same questions about whether being raised in a community such as this is per se abuse. Granted, leaving the young girls at the ranch sets up a difficult question about when you do remove them because they have grown into an “immediate danger” of being abused, but I am also less than comfortable with the idea that someone who is not now in immediate danger of abuse can be removed from their home because there is a mere foreseeable risk of abuse.
(3) Third question: Why separate the children from their mothers?
I suppose the easy answer to this is that the mothers were accessories, under the definitions stating that allowing another to abuse a child is also a form of abuse. If so, why were the mothers allowed to remain with their children for some time after the state removed them from the ranch? Further, once the mothers and children were separated from the men, I do not see how any kind of continued abuse would be possible, so what is the justification for the subsequent decision to separate the mothers from the children after they had been removed from the ranch?
(4) Fourth question: Why remove the children?
The standard for taking custody of a child refers to the “physical health or safety” of the child or “neglect or sexual abuse”, none of which seems to apply to the boys or younger girls, even if you grant the argument that being raised in a polygamist community is a species of abuse due to some presumed mental or emotional injury.
The standard also includes a requirement that “reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child”. I can think of all kinds of steps that the state could have taken to protect the children without removing them from the ranch, including maintaining a law enforcement presence at the ranch to ensure protect the teenage girls. The state has maintained such a presence at the ranch since day one. Is the state saying that Texas Department of Public Safety, Rangers, and Sheriff’s Deputies on-site cannot protect the children?
(5) Fifth question: Why are the men still walking around free?
I do not think there is any question that the primary perpetrators were the men at the ranch, not a single one of whom has been arrested. Nonetheless, the children and their mothers have borne the brunt of state action here, while the wrongdoers are walking around free. Are we really saying that we had probable cause and sufficient evidence to take custody of every single one of these children, but not probable cause and sufficient evidence to arrest anyone? I suppose there is a gap between “We believe this child has been abused” and “We know believe this man (out of the dozens at the ranch) committed the abuse,” but still…
(6) Sixth question: This is due process?
Leaving aside the question of whether a single mass hearing for hundreds of children could ever be due process for anyone involved, some of the attorneys reportedly could not hear or follow the hearing from their video feed at a remote location, and the court did not have copies of evidence for each attorney. The hearings pretty much ground to a halt over entirely predictable logistical problems, but the court went ahead and ordered the children placed into foster homes.
The case is, as they say, developing. I will keep you posted.