Court Says CPS Acted Rashly
May 22nd, 2008 at 2:36 pm
So now what?
The ruling today by a state appeals court in Austin has thrown the case of the FLDS children into even more confusion.
The Third District Court of Appeals ruled that Child Protective Services lacked the legal basis to remove many of the 400 children from the YFZ Ranch outside San Angelo. The court granted the request by 38 FLDS mothers to get custody of their kids back.
A quick refresher: CPS seized the children following a raid on the polygamist sect in early April. At a hearing two weeks later, District Judge Barbara Walther ruled that there was enough evidence of abuse at the ranch to warrant CPS taking temporary, emergency custody of all the kids. The agency then sent the children to foster homes and shelters all over the state while the courts began the process of sorting through each family’s case.
The appeals court ruled today that Judge Walther’s court “abused its discretion” in allowing CPS to keep custody of the kids. The appeals court commanded CPS to return the children of the 38 FLDS mothers who filed the appeal. (You can read past coverage here)
What does that mean for CPS? Will they appeal to the Texas Supreme Court? Will the agency return the children, who have been scattered to foster homes and shelters all over Texas?
Reached by phone, CPS spokesman Patrick Crimmins offered this statement, “We just received this information from the court of appeals and it is being reviewed. We are trying to assess the impact it may have on our case and what our next steps will be.” Asked if the agency would appeal to the Supreme Court, he said, “We don’t know. The attorneys are reviewing the ruling and trying to determine what happens next.”
After the appeals court ruling, the custody hearings that have been ongoing in San Angelo this week have been postponed. These so-called 60-day hearings are part of the legal process in which CPS will attempt to prove it should retain custody of the kids.
A key point to keep in mind: The issue at play in the appeals court ruling is not whether CPS can ultimately take custody of the kids — but rather whether CPS had the right to seize the kids on an emergency basis. As the appellate judges noted in their ruling, CPS’ first duty is to keep a family together and help parents work through their problems. The agency can seize the kids and take emergency custody — before all the facts have been established — only if the agency has evidence that the children are in immediate physical danger.
Emergency custody is a “extreme measure,” the appeals court wrote. But it’s a step CPS can take if “danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary.” The appeals court found CPS didn’t meet that standard in the FLDS case.
As we’ve noted before, there is some evidence of sexual abuse at the ranch — several dozen teen-age girls have allegedly become pregnant by older men. But, as the appeals court found, CPS offered no evidence that children of the 38 mothers involved in the case have been abused.
CPS countered, according to court filings, that the FLDS belief system “groomed” young males to be sexual abusers later in life and that the sect’s beliefs ultimately harmed all children. But the appeals court ruled that CPS’ allegations don’t meet the standard for emergency removal. (The law requires that children be in immediate physical danger.)
“The existence of the FLDS belief system…by itself, does not put children of FLDS parents in physical danger,” the appellate judges wrote.
The other key word in the law is “home.” As we’ve reported before, section 262 of the Texas Family Code, allows for immediate removal of kids in abusive “homes.” But families at the FLDS ranch lived in separate houses. And while they were in a tightly-knit community, the court ruled against CPS’ contention that the entire ranch qualifies as a single “household.”
In all, it was quite a judicial thumping for the good folks at CPS.
May 22nd, 2008 at 4:03 pm
[…] « Court Says CPS Acted Rashly […]
May 22nd, 2008 at 7:18 pm
the polygamy are very lucky,Texas cps came to my house 2yrs ago with a few fortworth police officers and took my children! I have not seen my kids since! Tarrant countys DAs office, Texas courts and the OAG of Texas have no records saying my children were removed from my care, and the only records they have on me and my kids is my custody order and my kids are suposed to be with me! Cps told me my custody order from the Tarrant county court house was not legal!2 or 3mos after the worker took my kids she either quit or was fired I dont know, they just told me she no longer worked there
May 23rd, 2008 at 3:49 am
Let’s take a breath here.
Some CPS employees and and some ( maybe all ) of the FLDS members under Waren Jeffs are behaving like extremeists.
The Texas appeals court ruling does not prevent Texas prosecuters from charging rapists ( statuatory or otherwise ) with crimes. It does not prevent church authorities from being charged with being accomplices to rape ( Waren Jeffs is in prison for that already ).
CPS can still remove children from individual FLDS families based on evidence through the normal process or even through an emergency process. The emergency process just requires evidence of an urgent and imminent threat of physical harm or sexual abuse in an individual house or apartment. Not somewhere on over a thousand acres of land and NOT based on the “beliefs” of parents but on actual criminal actions or criminal conspiracies by someone in the household where the children are living. If they go through the normal - non-emergency - process the burden of proof is much lower.
Also under Texas law the CPS had to attempt all reasonable alternatives to ripping small children from all the places and people they know and placing them with total strangers. This could have been placing mothers and children in group home for abused women and children or placement with a grandma / aunt or ensuring the home environment was safe by other means.
What happened here was the CPS and the state of Texas were using the small children as pawns to get at the child sexual abusers and FLDS Church Officials who instigate, promote, facilite and conceal these criminals. CPS was also lasy and drunk with power and did not believe they had to follow the law which allows them to use force to rip children from their parents when CPS follows the law.
I have no love for either the LDS or FLDS churches, BUT, I also fear a government which does not follow the rule of law and takes children away from families on an emergency basis and then claims you have no right to appeal. Very scary if the CPS actions were allowed to stand.
Now Texas needs to stop being lasy and finish this by following the law and prosecuting child rapists and the church officials who are their accomplices. Use the CPS to educate and support the Mothers who, based on CPS’s stated theory, are victims more than criminals.
Texas should leave the small children with their mothers - under court supervision - for now - there is no rush - Texas can always take them in the next few years before they become child rape victims if it turns out there is no other alternative.
By the way, the Texas appeals court did not find just one thing wrong with the way CPS handled this emergency removal of children in court - they found that they screwed it up in almost every way possible - CPS did not follow the law and neither did the county judge - So says the Texas Third court of appeals. Click on my name to go to the actual court opinion and order to read it for yourself.
Occasionally the government has to follow the laws as well - hopefully this investigation will continue and find the guilty without continuing to use small children as pawns.
Pasting in the following to browser address window will also get you to the court opinion:
http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=16865
May 25th, 2008 at 4:32 am
Reality Check wrote: “Let’s take a breath here.”
Why just take a breath, when we can enjoy the power trip of taking hundreds of children without legal justification beyond the flimsy, but with the force of government behind us? It’ll be even better because we don’t like “them”, so “they” deserve it…
Jokes noire aside, there may be many avenues of unchecked power that are not so invasive, but CPS is really on the throne of tyranny, being able to rip families apart.
And while we may be tempted to just believe the “experts” at CPS, the truth is that they not only lack expertise, but also balanced judgment resulting from many of them having been wounded themselves at an earlier age and vowing to “never let that happen to someone else.” That is not protection, it is self-absorption.
May 26th, 2008 at 8:22 am
Don’t lose sight that CPS removed the children (eventually from their mothers) with the help of a massive law enforcement “operation.” Many, many agencies (for days), a SWAT team, a no-fly zone, and the jaws-of-life was used to try to open the temple doors. That was the beginning, law enforcement - all dressed-up, ready for a mission - bringing in (an incompetent) child welfare agency to bring down an outsider group.
May 29th, 2008 at 4:01 pm
[…] The AP story is here. You can read our report on the appeals court ruling here. […]
May 30th, 2008 at 3:44 pm
[…] The order follows yesterday’s ruling by the Texas Supreme Court that CPS overstepped its legal authority in seizing the children from the Mormon fundamentalist sect’s West Texas ranch in early April. Some of our past coverage is here. […]
May 30th, 2008 at 7:18 pm
Dear Texas District Judge Barbara Walther,
Thank you for doing what is right. All children must be protected at all cost. They are our future.
Nick Maximovich
June 28th, 2008 at 11:12 pm
Cps has alot of nerve and should be repremanded for hurting these kids and others. a few weeks ago they took my grandson on hearsay which none of it was true and instead of just giving him back they make the parents take classes before they can have him when they were wrong. how unfair is that? thank God we got him before he went to a stranger’s home. they have alot to answer for when they stand before God someday and he asks them WHY?