This post is my response to my fellow Mormon blogger, Clark’s post over at The Millennial Star.  I originally was just going to respond in the comments; however, my comment grew to an entire post sized response, hence my response here.

One of the most difficult sentences of Clark’s post is this one:

However let’s ignore all the legal questions for a moment and ask what we can reasonably infer.

That’s exactly what the State of Texas would like to do–ignore the law or the legal questions for the moment.  I’m sorry, but I don’t think we can have a substantive discussion about Texas’ actions by ignoring or leaving out the legal questions or issues.  We can and should consider the practical effects and even the philosophical issues involved as well–but just forget the law?  Why?  I’m sorry, but when the State–any state, but in this case Texas, invades any home and neighborhood in armored personnel carriers with law enforcement armed with automatic weapons, to forcibly remove children from their mothers, fathers and their homes, I want some legal basis for such an invasion.  And, the law is what Texas is supposed to rely upon in embarking in such an endeavor.

So, let’s look a the law in question, specifically the Texas Family Law statute allowing the State to confiscate children from their parents:

CHILD.  An original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:

(1)  there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child’s welfare;

(2)  there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C;  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 the removal of the child.

This statutue, is the one I believe Texas relied upon to raid the FLDS community and take all their children.  Let’s take it one at a time.  The first paragraph requires some sworn affidavit.  I’ve already discussed this topic and concede that Texas probably had a sufficiently worded affidavit (even though based on hearsay) to remove the one 16 year old minor child to which the affidavit referred.

Could Texas have provided a stronger and more powerful affidavit?  Perhaps–if they would have located the complaining witness and actually had her swear out the facts of the affidavit–but they didn’t.  And, I doubt from a legal standpoint they would be required to do so.  You can read about the facts stated in the affidavit by following the link above.  Those facts are important because they must be sufficient to satisfy:

a person of ordinary prudence and caution there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child’s welfare.

Well, did Texas meet that standard?  Perhaps as to the one alleged 16 year old minor victim.  Certainly Texas was justified in entering the FLDS ranch to search for this 16 year old minor, her own children, and perhaps her own siblings, and even her husband, if he were present on the ranch.  And, one would think such a person (the 16 year old minor) would be fairly easy to find, i.e., young, with an eight month old baby, several weeks pregnant with child two, and having been beaten as recently as Easter Sunday, and prior to that so severely she had several broken ribs, requiring hospitalization.  One would think such a hospital visit would be able to be confirmed by CPS by visits to local hospitals and review of any medical records matching the description of this victim.

What is missing from the facts as alleged in the subject affidavit, are any facts whatsoever relating to some 415 other minor children then currently living on the FLDS ranch.  Yet, despite lacking facts sufficient to allow Texas to remove in excess of 400 other children, not the subejct of this affidavit, Texas removed them anyway.

Let’s go back to subsection (3) of the above statute.  It clearly states that before removing any child, Texas must make:

reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child.

Did Texas do that?  I haven’t read or heard one report about any such efforts Texas made.  As far as I can tell Texas made absolutely no effort whatsoever to prevent or eliminate the need for the removal of the child.  What might they have done?

Well, another Texas Family Law statute allows for the removal of the perpetrator, rather than the removal of the child:

(a)  If the department determines after an investigation that child abuse has occurred and that the child would be protected in the child’s home by the removal of the alleged perpetrator of the abuse, the department shall file a petition for the removal of the alleged perpetrator from the residence of the child rather than attempt to remove the child from the residence.

So, what Texas could have done is to have removed the perpetrator from the child’s home.  In this case, it doesn’t appear Texas did that.  In fact, it appears from these two code sections that the clear legislative intent of the Texas Legislature was to avoid if at all possible the removal of the child from the home.  They want the state to do everything within its power to keep the child in the home, if possible.  Why?  Well one reason would be to reduce the trauma to the child.

What about the other 400 plus children that Texas forcibly removed from their mothers, fathers and their homes?  What reasonable efforts, did Texas take that were consistent with the circumstances and providing for the safety of the child, in order to prevent or eliminate the need for the removal of the child–or in this case the 416 children?  I’m sorry, but, I haven’t read anything suggesting any facts that Texas did anything remotely contemplated by these statutes.

Clark further wrote in his post:

For one we need to remember that one of the main reasons the FLDS set up the Texas compound was because Utah authorities were going after the FLDS using more restrained methods. They were seeking DNA samples and warrants against many men for underage marriages of the sort that have been discussed. (I’d hope those being too swayed by some of Guy’s posts at M&A check out the interview this morning with Mark Shurtleff at Radio West — he confirmed this) Also remember that the former FLDS President, Warren Jeffs, was found guilty as an accomplice to rape for precisely the charges made about the FLDS compound in Texas. Likewise there have been many, many charges of this sort made against the FLDS.

What difference does it make why the FLDS went to Texas?  The Texas statutes don’t seem to contemplate that is really a relevant issue to the raid.  As to those whom are swayed by my posts here, I think Attorney General Mark Shurtleff’s press interviews support my position more than it does Clark’s.  I’ve already quoted the money quote from Utah’s Attorney General:

Still, Shurtleff said he had no plans to conduct a similar mass-scale raid on the polygamous border towns of Hildale, Utah, and Colorado City, Ariz.

“And do what? Arrest thousands of polygamists in Utah? We wouldn’t have 400 kids, we’d have thousands in our foster care and thousands of their parents in the prison system. It’s not practical to do that,” Shurtleff said. “We were right to focus on abused children.”

The Utah Attorney General’s Office has made it clear that it will not prosecute polygamy as a criminal offense alone.

Instead, it has chosen to focus on child abuse, domestic violence and fraud. Shurtleff has said that he would have liked to have seen more cases prosecuted but did not have the necessary evidence or witnesses willing to come forward.

Polygamy is prohibited, but attorneys say constitutional questions regarding religious freedom could make it too difficult to secure a conviction on plural marriage alone, as is the case with court rulings regarding the rights of consenting adults.

County attorneys in Utah have shouldered the prosecution of polygamists, but the Utah Attorney General’s Office has had involvement and influence on the cases.

Again, there is good reason Utah does not act like Texas did.  And, specifically criticizing the Texas raid:

Even now, Shurtleff questions the decision by Texas authorities in removing all 416 children from the FLDS Church’s YFZ Ranch.

“There is that sweeping statement that they’ve concluded as a matter of law that if you’re a child in a polygamous family, that alone means you’re abused,” Shurtleff said. “We’ve never concluded that here.”

That is exactly Texas’ untenable position here.  They want all these cases to be treated as one large case rather than the individual cases of each child, which is exactly, I believe, what the Texas statutes require.  I don’t think Texas has the facts sufficient to sustain its burden.  I don’t think Texas had those facts when it went in with an armed paramilitary force.

I think Clark’s exercise as a philosophical discussion is interesting; but, I think he misses the point when he wants to ignore the law and the requirements necessary to support Texas’ armed invasion.  I just don’t see it.  I don’t think the invasion was justified.

Of course, that’s just my opinion.  I could be wrong.   I’m not licensed to practice law in Texas; but, I think it is quite telling that neither Utah or Arizona’s attorneys general have adopted the Texas approach and lump all polygamist children into one large whole and ignore the individual, for which the relevant statutes clearly were written.  This was a bad idea from the beginning.  It’s getting worse with each passing day.  I don’t see the advantage to what Texas has done.  I see many, many advantages to Utah and Arizona’s approach.  I think Texas has bitten off more than it can chew–in a rather large sized Texas portion.

It is a human tragedy.  Even if all these children are eventually returned to their mothers, fathers, and their homes, they will likely have been scarred for life.  This is why it is a bad idea to ignore all the legal questions, even for just a moment.

Jeff Lindsay over at Mormanity has a very good post on the subject as well.

Janet over at Feminist Mormon Housewives also has a very good post on the West Texas mess.

Dave over at DMI has also weighed in.

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