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Why The Texas Supreme Court's Ruling Regarding the FLDS Mothers Is Significantly More Protective of the Children Involved than the Media Have Painted It To Be


Tuesday, Jun. 3, 2008

Recently, the Texas Supreme Court affirmed the state’s Third Circuit appellate court’s ruling that Child Protective Services (CPS) lacked adequate evidence to justify taking all of the children from the FLDS’s Yearning for Zion compound. However, as I will explain, there are significant differences between the two rulings, which bode well for the endangered children of the FLDS.

The Texas Supreme Court Affirms that CPS Has Ongoing Jurisdiction

The lower appellate court’s decision might have been interpreted as divesting CPS of any ongoing involvement, for the court did not make it clear what role it thought either CPS or Judge Walther might play in the future. Accordingly, that decision was misread by some as a complete vindication of the parents and as an order to return the children to the compound as soon as possible. That is certainly how the public relations people for the FLDS played it. Indeed, they tried to go further and convince the news media that the decision showed that there never was any abuse in the first place. They were wrong.

The Texas Supreme Court made it clear that CPS’s investigation of abuse was far from over. Indeed, it made a point of listing the means by which the district court could further protect the children, even as they were permitted to return to the compound. The court pointed out that the Texas Family Code permitted the court “broad authority” to prohibit the removal of the children from a designated geographical area, to direct the removal of an alleged perpetrator from a child’s home, and to issue orders assisting CPS in its investigation. Then the court pointedly stated that 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.” Finally, the decision ended with the blunt statement that the appellate decision below “did not conclude the [CPS] proceedings.” CPS then followed up in the lower court with a number of suggested conditions for release that would further the ends of preventing relocation or concealment. (Judge Walther subsequently approved an agreement between the parties consistent with the limitations approved in the Supreme Court’s opinion. The parents may not take their children out of Texas, must keep the court informed of each child’s location, and may not interfere with further investigation, among other requirements.)

The Texas Supreme Court Did Not Clear the Adults at the FLDS Compound of Abuse Claims, Nor Did It Vindicate Any “Rights” on Their Part

It is extremely important for people to understand this point: The Texas Supreme Court did not say that there was no abuse and did not place its imprimatur on the notion that the FLDS to could return to abuse as usual.

The week before, FLDS members had turned investigators away from the gates of the compound. The court made clear that should not happen again and, by implication, that if investigators during this investigation uncover further evidence of abuse, the state will not be barred from further actions taken to protect each child.

Moreover, neither the Texas Supreme Court nor the lower appellate court ruled on whether the parents have any “rights,” constitutional or otherwise – a point the Texas Supreme Court stated explicitly. To the contrary, both decisions were state law rulings on the sufficiency of the evidence to date to take all of the children at once.

An Admirable Dissent Penned By the Court’s Only Female Justice

A three-judge dissent to the Texas Supreme Court’s opinion was written by Justice O’Neill. The only woman on the court, Justice O’Neill made the compelling argument that at least the class of pubescent girls should have remained in state custody. It is a sad commentary on the plight of children in our society that her view did not obtain a majority. We have left behind the era when rape was deemed the woman’s fault, but we remain in the dark ages when the certain sexual abuse of girls is still insufficiently moving for courts to take action in their favor. No one wants to think about the sex abuse of children, but this court had an obligation to examine the facts without flinching and, if it had done so, the pubescent girls would have remained in state custody. The majority’s decision trivializes their plight, or the law of sexual assault, or both. One can only wonder what the result would have been if one of the girls being abused had been one of their own children.

I stand by my earlier analysis that CPS operated well within reasonable boundaries when it took all of the children, given the obvious evidence of the alarming number of pubescent girls who were pregnant or already mothers. It takes no leap of logic to conclude that, at the same time the boys were being groomed to be rapists, the younger girls were being groomed to be victims, and the adolescents were being sexually assaulted on a regular basis. Moreover, there was truly a mountain of evidence that many of the men were engaging in polygamous marriage with underage girls, a first-degree felony in Texas.

A return of these children with no conditions for their protection -- as the FLDS leaders claim is their right -- would have been an invitation to continue the community practice of sex and marriage to 12-year-olds. As the Texas Supreme Court’s holding indicates, the facts may be insufficient to put all of the children in state custody at this time, but that does not mean that children are safe in the FLDS compound or the investigation is over.

The media seems intent on focusing on the disruption to these children’s lives following the rescue and now the return, as though that is the major issue before us, and as though the abuse allegations are now irrelevant history. While there is no question that the children must feel stress resulting from the process, there would have been no disruption if the sect’s men had not had sex with underage girls and married them into polygamous unions. Felonious behavior by FLDS adults caused the misery here, not the state. The FLDS families are not different from any other families facing credible allegations of abuse, despite the religious source of their illegal behavior.

One can only hope that the Texas Attorney General’s Office soon files criminal charges against the obvious felons within the group, and holds very public trials that further educate the American public on the sexual abuse of American children. Ignorance and denial are the enemies of these children.

Marci Hamilton is Visiting Professor of Public Affairs and the Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent book is Justice Denied: What America Must Do to Protect Its Children(Cambridge 2008). Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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