Photo Eirc Gay, AP

Update 4/22/08 6:00 a.m.

CaptiveFLDSChildren.org (FLDS photos of the raid)

FLDS Truth.org (FLDS site of their belief system)

I had planned to take a break from blogging about this story; but, it seems each day Texas and its justice system sink deeper into depravity.  The trial judge, Barbara Walther, has refused to stop Texas CPS officials from forcibly separating FLDS mothers and their nursing babies.

The Salt Lake Tribune’s Brooke Adams reported earlier today:

SAN ANGELO, Texas — Mothers in the polygamous FLDS sect on Monday filed a motion for a temporary restraining order demanding access to attorneys, privacy in prayer and a halt to Texas child-welfare workers plans to separate them from their breast-feeding children.

Though filed specifically on behalf of four Fundamentalist Latter Day Saints mothers, the TRO is meant to include other mothers fighting to stop the state from taking their toddlers, who were taken from the sect’s YFZ Ranch earlier this month.

Texas Child Protective Services (CPS) officials have repeatedly said they plan to separate all 416 children taken from the ranch — including those under 2 who are currently breast-feeding — once DNA testing determines maternity. That genetic screening began today. Texas Judge Barbara Walther set an afternoon hearing to further discuss the TRO motions.

So, the Texas CPS, in its infinite wisdom, and of course in the best interests of the children they have kidnapped at gun point and under color of law, intends to forcibly separate all of them, including those who still suckle at their mothers’ breasts.  What on earth can these people be thinking?  What possible benefit is it to these babies to be forcibly removed from their breast feeding mothers?  What compelling government interest does it serve to forcibly separate babies from their nursing mothers?

In an effort to keep these mothers and their babies together, their attorneys brought emergency temporary restraining order petitions to the judge to halt these proposed separations.  Unbelievably, this was not the only Texas CPS abuse the mothers sought to halt:  It appears that Texas CPS officials find that the mothers and children should be kept from praying to God, in the little privacy they have remaining.  What?  They need permission of the Texas CPS to pray in private?  Are you kidding?  Does the CPS really think the First Amendment does not apply in Texas?  Of course, given recent events, we have seen that the Fourth and Fourteenth Amendments hold no sway out in West Texas.

Seems like a no brainer right?  Well, as unbelievable as was the subject of these petitions, was at least part of the judge’s ruling.  She declined to halt the forcible separation of the mothers and babies.  The Salt Lake Tribune reports in a late online article:

SAN ANGELO, Texas — The Texas judge overseeing the polygamous FLDS sect’s case today refused to make any ruling that would allow breast-feeding mothers to remain with their children in state custody.

Judge Barbara Walther did rule on requests that women and children currently being held in San Angelo be able to pray together privately. She told Texas Children Protective Services (CPS) to find a member of the mainstream Mormon church to supervise group prayer sessions with FLDS women and children. Those sessions would occur in the morning and evening.

Walther was addressing a request for temporary restraining orders filed by attorneys for four of the nursing mothers, but on behalf of all mothers there. The request asked the court to stop Texas child-welfare workers from separating mothers and children, to allow private prayer, and to give the women and children telephone access to their lawyers.

The judge said she would leave it up to CPS officials and the attorneys to work something out on the breast-feeding. The attorneys, however, replied that they have so far been unable to come up with a workable agreement.

CPS officials plan to separate 68 women with children under five from their kids once DNA samples are taken. The sampling began today.

The depth of the Judge’s callousness were her comments that mothers everywhere go back to work after giving birth:

Walther acknowledged the nutritional and bonding benefits of breast-feeding. “But every day in this country, we have mothers who go back to work after six weeks of maternity leave,” she said.
“The court has made a determination that the environment those children were in was not safe,” said Walther, adding that there is a shortage of suitable placements for infants in Texas.

The judge said she would leave it up to CPS officials and the attorneys to work something out on the breast-feeding. The attorneys, however, said so far they have been unable to come to agreement. Shari Pulliam, a spokeswoman for CPS, said the agency plans to proceed with plans to send the women home. “We don’t place adult women in foster care,” she said. “Our main thing is to protect children from abuse and neglect.”

Of course, women who do choose to return to the work force do so voluntarily, and are not forcibly separated from their infants at gunpoint.  And, of course CPS’ response was classic, protecting the children from abuse and neglect.  It’s as though they are programed with these ridiculous lines–make that lies.  They are not protecting anyone from anything.  They are engaging in large scale child abuse, and someone needs to hold these goons accountable.

A disturbing pattern emerges here.  In comments on another thread a practicing Texas Family Law attorney who goes by the handle The Local Crank (I will let him identify himself if he so chooses), observed:

it’s not at all surprising that the initial removal was granted; they almost always are, if for no other reason than that there’s usually not enough time to complete the investigation or do a home study on relative placements, and judges tend to err on the side of caution. In fact, in nearly 10 years of doing CPS cases, the only time I saw a removal flat-out denied was when I (as ad litem for the children) pointed out that the CPS caseworkers (who didn’t even bother to come to court) had committed perjury in their affidavits.

Since I am not a family law attorney, Texas or otherwise, this came as somewhat of a shock to me.  As a civil litigator I am accustomed to being guided by the statutes passed by the legislature, and I expect that the statutes be given the due consideration and fair interpretation contained in their plain meaning.  Well, apparently that doesn’t happen, at least in West Texas.

The Crank continued, though pointing out that most CPS case workers are good and decent people;

I should hasten to add that the vast majority of CPS caseworkers I’ve encountered are hard-working, caring, compassionate people who do things like spend the night (unpaid) in their offices with children who can’t be immediately placed in foster care. CPS is under-funded, under-staffed, over-worked and under-appreciated. Like most things in Texas, this can be laid at the feet of the Legislature, composed of politicians who care nothing about children or any other constituency that can’t vote or (more importantly) donate money to campaigns.

Well, giving the CPS case workers the benefit of the doubt here, it must be someone other than the case workers making the decisions that prohibit private prayer with the mothers and children, and their eventual separation from each other.

But, what was more disturbing was The Crank’s further comments about the due process hearing the Texas Legislature enacted into the Family Law statutes, governing the removal children from their homes:

In cases where multiple siblings are removed, for example, you typically only have one hearing, unless their circumstances are wildly different. Here, the State is trying to argue that all 416 kids are members of the same household, in order to justify placing all of them in foster care when clearly not all of them are in danger. This is ludicrous, since it would imply that every town in Texas with less than 1,000 people constitutes a single household.

This case has violated so many CPS rules, guidelines and standard procedures that I’m beginning to suspect this was a law enforcement operation and CPS has been left holding the bag. For one thing, CPS would’ve removed the alleged perpetrators (the husbands) and left the women and children in place to receive services. For another, if CPS does a removal, they NEVER allow a parent to just “ride along” since, by definition, if a parent is safe to be around a child, there’s no need for removal in the first place.

I’ve previously linked to the Texas statutes governing this due process hearing, but will reproduce it for easy reference here.  Based on my reading of the statutes, and following the media accounts of what actually happened, Texas didn’t even come close to providing the hearing required by law:

§ 262.106.  INITIAL HEARING AFTER TAKING POSSESSION OF CHILD IN EMERGENCY WITHOUT COURT ORDER.

(a)  The court in which a suit has been filed after a child has been taken into possession without a court order by a governmental entity shall hold an initial hearing on or before the first working day after the date the child is taken into possession.  The court shall render orders that are necessary to protect the physical health and safety of the child.  If the court is unavailable for a hearing on the first working day, then, and only in that event, the hearing shall be held no later than the first working day after the court becomes available, provided that the hearing is held no later than the third working day after the child is taken into possession

(b)  The initial hearing may be ex parte and proof may be by sworn petition or affidavit if a full adversary hearing is not practicable.

(c)  If the initial hearing is not held within the time required, the child shall be returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child.

(d)  For the purpose of determining under Subsection (a) the first working day after the date the child is taken into possession, the child is considered to have been taken into possession by the Department of Protective and Regulatory Services on the expiration of the five-day period permitted under Section 262.007(c) or 262.110(b), as appropriate.

§ 262.107.  STANDARD FOR DECISION AT INITIAL HEARING AFTER TAKING POSSESSION OF CHILD WITHOUT A COURT ORDER IN
EMERGENCY.

(a)  The court shall order the return of the child at the initial hearing regarding a child taken in possession without a court order by a governmental entity unless the court is satisfied
that:
(1)  there is a continuing danger to the physical health or safety of the child if the child is returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child or the evidence shows that the child has been the victim of sexual abuse on one or more occasions and that there is a substantial risk that the child will be the victim of sexual abuse in the future;

(2)  continuation of the child in the home would be contrary to the child’s welfare;  and
(3)  reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child.

(b)  In determining whether there is a continuing danger to the physical health or safety of a child, the court may consider whether the household to which the child would be returned includes a person who has:
(1)  abused or neglected another child in a manner that caused serious injury to or the death of the other child;  or

(2)  sexually abused another child.

What the statutes clearly contemplate is a hearing for EACH child taken into custody by CPS.  At best, CPS might make a successful argument to have one hearing where several related siblings, i.e., 3, 4 or even 6 or 8 have been removed.  But 416?  I don’t think so.  Clearly, there was just one mass hearing for all 416 children.  Several attorneys were prohibited from making procedural and constitutional objections.  Media reports indicated the judge commented to objecting attorneys that they were wasting time.  Judge Walther it appears presided over nothing more than a kangaroo court depriving these 416 children, their mothers and their fathers the due process clearly contemplated by the Texas Legislature and enshrined in these code sections.

Another practicing Texas Family Law attorney, with whom I exchanged email correspondence over the last several days agreed with my analysis of the separate hearing requirement for each child taken by the CPS.  This attorney in essence told me:

I was correct in my analysis of the procedural aspects of the statutes on removal, and that this type of hearing held by this judge was highly unusual.  The attorney noted that having lived in West Texas for a few years that the communities out there are not large, and that CPS resources are stretched thin.

The attorney felt if the action had taken place in the county where the attorney currently practices, that separate hearings would have been held; however, the attorney felt the results would not have been any different.  Texas courts have an appalling history of rubber stamping CPS actions, even when as here, statutory due process has not been satisfied.

This attorney stopped handling CPS cases a few years ago because the attorney felt the case worker this attorney had dealt with were bigoted, racist, elitist and discriminatory.  The attorney did not feel CPS had any legal justification for what it is currently doing to these FLDS families.

As Paul noted in the comments to this thread, the Deseret News also reports on this story with some fascinating facts:

SAN ANGELO, Texas — A judge wants attorneys representing FLDS mothers and children to ask local LDS congregations if they would be willing to “provide a buffer” for FLDS members who wish to pray in groups at a temporary shelter.

Judge Barbara Walther made the decision late Monday afternoon at a hearing to address three issues brought by attorneys representing mothers of children who remain in a state shelter. A total of 416 children were removed from the Fundamentalist LDS Church’s YFZ Ranch earlier this month as part of a child-abuse investigation . . .

The president of the LDS Abilene Texas Stake, which oversees San Angelo, was surprised by the judge’s request.

“They think we’re the same ones because we use the Book of Mormon,” said Charles L. Webb. “I’m dumbfounded they would suggest that.”

Webb plans to contact church headquarters in Salt Lake City for guidance.

My own take on this request, while perhaps strange, is that President Webb should jump at this chance to be of service and help our FLDS sisters and brothers in this difficult time.  Since the case has drawn international attention, I can see his desire to consult Salt Lake, but I see nothing at all wrong in helping these FLDS families worship, how, what, when, and where the Texas CPS allows them.

Referring to the prayer request, Judge Walther quipped:

“How would I stop someone from practicing their faith?” the judge asked.

She acknowledged concerns from Texas child welfare authorities about improper communications between mothers and children that could occur in such private prayer times and have an affect on the pending investigations.

“If they cross the line or coach the child or make any kind of comment on litigation, all bets are off,” Walther said.

Oh please!  How can she stop them from practicing their faith?  Are you kidding?  With her absurd ruling two days ago, she has rubber stamped likely the most drastic denial of First Amendment religious belief and free exercise in United States history.  The thought, makes reason stare.

Her comment about improper communications is laughable on its face.  If anyone is engaging in improper communication with these children it is the CSP gestapo workers.  Don’t think for one second that the state of Texas is not trying everything under the sun to try and coerce these unsophisticated children into testifying against their mothers and fathers in anyway imaginable.  Texas has blown this case beyond all reasonable comprehensive.  They need to cover their backsides big time.  I can imagine there are several civil right’s litigators closely monitoring what goes on there is West Texas in anticipatation of the 1983 actions that I certainly hope will follow.

Update 8:10 p.m. This Deseret News article numbs the senses.  Apparently the Texas CPS does not even know how many children they have kidnapped.  Gives you a queasy feeling deep down inside:

SAN ANGELO, Texas — Texas child welfare authorities admitted Monday there are more children and mothers inside the San Angelo Coliseum than they originally believed.

The Texas Department of Family and Protective Services said Monday there are 437 children being held at the makeshift shelter — not 416 children as they have reported since April 8 when they announced that number and said they had removed all the children from the YFZ Ranch of the Fundamentalist FLDS Church.

“You can imagine with these many people and different locations, it was hard to get an exact count,” said Shari Pulliam, spokeswoman for the department. “We finally think we’ve got a count.”

Pulliam defended the miscount, saying there were many instances where they would be told a different name and different birth date every time they asked, and in some cases, information was not accurate. A head count was made more difficult because so many people were doing different things at different times.

“You’ve got mothers with babies in cots, but not everybody’s laying down at the exact same time. Some are in the restroom at times when you’re counting, some people are in the shower. There’s a lot of different things going on at the same time,” she said.

There’s a lot of different things going on at the same time?  That’s it?  That’s the best Texas can do for not even having an accurate account of how many people it has in custody?  Oh my . . .

Update 8:45 p.m. San Angelo Paper:  DNA results may not be ready in time for hearing.

This could be problematic for Texas; however, even if there is a legal time limit involved here, based on the track record of this case, I am not optimistic either the Judge or CPS will feel it necessary that they actually comply with the statutory requirements.

I’ve updated this post, both at the beginning and the end with two new websites from the FLDS community in their effort to get their side of the story out.  The photo page is particularly enlightening.  I share a couple below:

Other good coverage:

FLDS Truth (FLDS website about their religious views)

CaptiveFLDSChildren.org (FLDS website with photos on the raid)

Dave’s Mormon Inquiry

Feminist Mormon Housewives (There’s a poll here, please go vote)

Hieing to Kolob (Yes Texas, there is a Sarah)

Hieing to Kolob (Both Sides Now–Legal Ramifications)

Grits for Breakfast

More Grits for Breakfast coverage

The Polygamy Files

Salt Lake Tribune Editorial (Systemic abuse: Texas bears a heavy burden of proof in FLDS cases)

Society is Silent on Raid (Editorial by Ralph E. Shaffer and Norma Jeanne Strobel–some excellent points–where is both the liberal and conservative main stream media?)

The Polygamy Files (Brooke Adams’ take on the nursing issue)

Connor’s Conundrums