I was disappointed today when I heard news of a hearing in the Texas-FLDS fiasco where a mother was trying to get custody of her nine month old baby. What surprised me was the age of the child since my understanding was that mothers of children under 1 year had been allowed to stay with their children. Thankfully it was only a short time later that I stumbled upon the best news I have yet heard in this case – an appeals court overturned the ruling that put all those children in state custody. The news was:
The Third Court of Appeals in Austin ruled that the grounds for removing the children were ”legally and factually insufficient” under Texas law. . . . The appellate court ruled the chaotic hearing held last month did not demonstrate the children were in any immediate danger, the only measure of taking children from their homes without court proceedings.
This was exciting news for two reasons – first, a bad ruling was overturned; second, this ruling indicates that children are not to be taken from their homes without a court hearing unless they are in immediate danger. That standard of immediate danger is perfectly reasonable and it’s good to see a court recognize that the legal standard was not met in this case of abduction. (Anyone who argues that this was not an abduction had better go look up the word because unlike the CPS argument of immediate danger this case perfectly matches the definition of abduction.)
Texas officials have carefully used code phrases to describe the FLDS. Why? I finally figured that out today. They were essentially arguing that the entire ranch was a single household, and that they were just removing all kids from the household like they would in any other case where abuse is suspected. Thankfully, the court saw through this junk argument. But the story isn’t over yet. We’ll have to watch and see how it pans out.
I was initially inclined to call todays ruling a victory, but then I realized, as you said, that the story is not remotely complete. That’s why I called it only a step in the right direction.
At my most optimistic, I would hope that Judge Walthers vacates her previous ruling and releases all the children who were not in immediate danger to their parents (todays ruling suggests that would include all but the teenage girls). After that they could deal with the remaining cases on an individual basis as they have really been unable to do effectively thus far.
Two things:
First, it’s not up to the trial court to vacate its own ruling. The appellate court in this case can either remand or vacate the trial court’s decision and the trial court will then go ahead with a new hearing following the instructions of the appellate court. This is just a procedural FYI.
Second, regardless of the goodness or badness of the result today, I would still like to point out that there has still been no mention on Constitutional rights. All the information I have is that they violated Texas family law. Maybe there was something in the trial and appellate briefs, but I don’t think any of us have read those.
Obviously it’s possible for a non-lawyer like myself to be mistaken, but the news that I heard was that the appellate court “gave Texas District Judge Barbara Walther 10 days to vacate her custody order.” (see here)
I’m not surprised that nobody is talking constitutional rights in this case. Everyone would prefer to deal with the case on the level of state law, burden of proof, and sexual abuse of children. If anyone starts to deal with it as a constitutional rights issue it’s going to be an issue of separation of church and state and the right to freely practice their religion. I really doubt that anyone wants to tackle that issue because if they do there are only two outcomes possible, one is that they outlaw the FLDS religious sect and the other is that they give a precedent that essentially legalizes the practice of polygamy under the umbrella of religious protection.
Imagine that! The news gave inaccurate information. Ah well, c’est la vie.
You have a very interesting point in your comment about the 1st Amendment issue. I will be watching to see what happens, cuz you may be right about the outcome if anybody touches that point. To be honest, my guess is that this will come down to an argument on the 5th Amendment about due process.
I hadn’t thought about a 5th Amendment argument. You’re probably right that they would rather tackle that then a 1st Amendment case. Personally, I expect that they will try very hard to settle the case before it gets couched in terms of constitutional rights.