Why I keep writing about the Texas FLDS case

Warning: long post follows. You know how lawyers are when a microphone, podium, or keyboard are nearby.

First, to get to the question posed by my subject line, you can think of Pastor Niemoeller.

I wrote a post last week with an update in the FLDS case. I've never actually explained that Texas case here in this blog on the assumption that readers would already know about it. If you are not at all familiar with it, here is a brief timeline of the first events in the case at this link.

It is not my intention to behave as if I am a defense lawyer for any of these parents, and comment accordingly. I (think) I know better than to assume that I have all of the pertinent information with only news reports and commentary to go on.

I'm still troubled by the "class action" and guilt-by-association nature of this whole thing; I am troubled by (as the presiding judge described it) the cattle call that was the shelter review hearing, or whatever they call it in Texas. I'm troubled that in the cases of 463 children sheltered on an anonymous phone call that turns out was probably a false report, not even one child can be returned to either parent's custody under any circumstances so far. That fact alone makes this effort on the part of Texas, no matter how good intentions were or are, a qualified failure.

I keep writing about this case for the same reason I continue to represent parents in dependency court: the system hurts kids. A lot. In an ongoing and relentless way.

With that said, I do regret the title I put on that earlier post, "If you are still following it. If you care." The first part of the title came from a sense that this very important case had quickly faded from public awareness. The second part of my title was a bad idea. It sounds accusatory now that I read it again. What I meant by "if you care" was simply that some people are following it and find it to be of great significance and others are not. I apologize for the tone of that phrase.

I got one comment to that post, which is actually a lot for this tiny blog. That comment is the inspiration for this post. Here it is in its entirety:

Not to restate the obvious but let's not forget that more than 40 girls under 16 (that's roguhly%10) are or were pregnant when the authorities took custody. The fathers of the babies are almost exclusively adults and the girls' parents were well aware and did nothing. Without the religious component it is just a bunch of incest and capital sexual battery charges for the men. If this was happening in a trailer park in a bad section of town noone would be upset that they took these children from home that they were being forced to have sex and marry at 12 and 13. oh.. and poligamy is illegal in every state. None of that gives the state the right to violate rights or not follow correct procedure but they have done their best under a very unique and tough situation.

We have some areas of agreement. I agree we can mentally put aside the religious component and analyze the case in other ways. We agree that the case, if proven, should come down to whether or not there was incest or sexual exploitation. We agree that due process is important.

We have some areas of disagreement. I'm not sure if anyone knows how many of the teenage girls are pregnant -- for instance:

Earlier this morning at the San Angelo courthouse, a lawyer for a 14-year-old girl that is on a list of so-called "disputed minors" said she is not pregnant as Texas child welfare authorities have alleged.
"My client does not have children. (She) is not pregnant. She's the youngest on the list of disputed minors," said Andrea Sloan.
The judge hearing the case objected, saying that was not what the hearing was about. But Sloan pressed forward.
"The department is communicating to the public that there are 14-year olds who are pregnant," she said.

Even so, the teenage pregnancy rate is, in fact, very significant. Using 2002 data, I see that the pregnancy rate for Texas girls aged 13 to 17 is 28.5 per 1000. CNN reports two days ago that CPS keeps changing the number because it keeps turning out that women they were calling "girls" are in fact adults. My math, based on earlier CPS statements, makes only a possible 4 pregnant teenagers left. CNN thinks 5 or 6. That makes the teen pregnancy rate at or less than among Texans who don't live on the FLDS ranch. That's a far cry from CPS' earlier claims that "half" of the children were pregnant. I wonder what method they used to determine pregnant status a month ago?

Am I allowed, as a dependency defense lawyer who sees the effects of child removals all the time, to just simply have no tolerance for incompetence? Did you know that Texas CPS put a 22-year-old woman in this case in foster care despite her protestations that she was not, in fact, a child?

The commenter and I disagree, sort of, on the polygamy aspect. The way I see it, it is not lawful to issue a marriage license to someone who is already married to another. It is not, however, against the law to live in an intimate relationship with more than one person without benefit of government sanction of the arrangement, and call your significant others "wife" or anything else you want to call them. Especially after the Lawrence v. Texas case, I simply don't see how polygamy can be dispositive, if even relevant, in a child dependency case. I don't approve of that, by the way, and think polygamy is a bad thing; but what the Supreme Court gives, the Supreme Court takes away, and the polygamy aspect doesn't matter any more to a child removal proceeding than a finding that a parent had failed to file an income tax return last year (which I remind you is illegal in all 50 states).

This, finally, brings me to the only really substantive thing with which my commenter (and thank you for commenting) and I disagree: that Texas CPS has done their best under a very unique and tough situation.

I couldn't disagree more. Remove every child in sight and let the judge sort them out is practically the definition of not doing their best. There is absolutely no effort involved for CPS workers in this case than there would be on any given day at the office. Get an anonymous call, get police to escort you, take each and every kid, put on a few witnesses, churn out a few hundred identical copies of the same caseplan, and keep your job.

I can tell you from experience that the case workers (or family case managers, as they like to be called now) and protective investigators who really and truly do their best, who possess good instincts coupled with courage and confidence tend to get fired.

I am now going to give you a link to another blog with several links to individual statements of mental health professionals who were involved in the Texas case. I recommend them to you. They will answer any questions you may have about whether or not case workers are doing their best.

Here you go. You really should read at least a couple of them. These people have been treated horribly.