Court thwacks CPS over FLDS raid

While I was out last week, the case of the state of Texas versus the Fundamentalist Church of Jesus Christ of Latter Day Saints took a turn against the State when the 3rd Court of Appeals issued a ruling saying, in effect, that Child Protective Services did not follow the law in ordering the emergency removal of some 400 children from the polygamist sect's compound. (The state has since appealed the ruling.) You can read a good media account of the ruling from GoSanAngelo.com, a very lucid description of the court's ruling (and the depth of CPS' manifest failures) from RickG at Lone Star Times, a bunch of "now what?" questions in the wake of the ruling from Grits, and a big roundup of other related links also from Grits. I'm going to quote a bit from RickG's piece, since it encapsulates pretty well my thinking on this case:

The State painted with too broad a brush, imposing its considerable force on every member of the community based on facts involving only a few, along with the State's determination to proceed on the concept of guilt by association, which is not condoned in the law. The Court rightly rejected the implicit notion that because there may have been wrongdoing by a few, the State could, through clairvoyance or otherwise, justify action against everyone.

The Court added that the State did not even make "reasonable" efforts to prevent unjustified removals. Instead, based upon five pregnant minors and a belief system that allowed minors to marry and become pregnant, the State removed all children - including infants - from their homes and separated them from their parents.

Note the "five pregnant minors". The overstatement of how many underage mothers there were at the FLDS compound is something Grits has been hammering away at. Now we find, as Brooke Adams reported:

Here's a question: The Texas Department of Family and Protective Services had all the power in the world to structure status hearings held this week in any order it wanted. It kept telling us, the media and the public, that there were 31 girls between the ages of 14 and 17 who were pregnant, mothers or both.

Now we know the truth: There are only five girls in that group. All but one are or will be 18 this year. One gave birth when she was 17, three when they were 16. One is pregnant.

I kept asking the state for a breakdown by age of the 31 girls, the 60 percent, it claimed were pregnant or mothers. They refused weeks ago and still haven't done it.

Now we know why.

And that in a nutshell is why I had serious problems with this case. Again, it's not a matter of the FLDS lifestyle and dogma. If Olivia or Audrey were someday to fall under the sway of a group like that, I'd do everything in my power to get them out of there. But that's not a justification for the state to trample these folks' constitutional rights. Due process exists for a reason: To protect the innocent from the awesome power of the government. This is just another example of why we have due process, and why we need it. Otherwise, the state can declare you pregnant when you're not and drag you to court based on that declaration. If it can happen to them, it can happen to you.

Posted by Charles Kuffner on May 27, 2008 to Crime and Punishment