(Photo by Eric Gay AP)
The Salt Lake Tribune is reporting these facts from the hearing:
For an updated roundup of today’s hearing see Grits For Breakfast–great analysis and coverage as well.
Attorneys for the children have objected to en masse hearings on constitutional grounds, due process, as well as Texas law. I’ve discussed before that I agree with that rationale:
Attorneys ad litem appointed by the state to represent the children immediately objected to having a hearing for the children enmasse. That violates both their constitutional right to due process and Texas law, one attorney argued, as lawyers for each child have a right to be heard concerning their clients.
Judge Walther questioned that rationale, and said she has a plan that can handle the cases as a group or on an individual basis when it is necessary. She urged the attorneys to give it “a chance to get going.”
“It’s not a perfect solution and I wish I could give you a perfect solution, but there is not one,” she said. “If you will be patient, you will see we do have a plan and you will be able to represent your clients individually.”
I can understand that now Texas has created this mess, the Judge may be hesitant to agree to the individual hearings; however, I don’t see a valid constitutional way around that issue. But, I’ll reserve final judgment until I hear what her proposed “solution” is to that issue, when it arises.
Next in line was the proposed admission into evidence the medical records of three teenage girls. The judge then recessed the hearing to allow all counsel the opporunity to review the medical records. If the state is seeking to admit such evidence at this hearing, you can bet they will likely support the state’s case, and may in fact show these women may be pregnant or possibly other signs of abuse–depending on their age–such as sexual activity. It will be interesting to see the results of those records:
The state then called its first witness to the stand – an attorney who is the custodian of medical evidence gathered from FLDS children initially taken to a temporary shelter at Fort Concho. The state asked Walther to admit into evidence the medical records of three teenage girls, prompting the judge to order a recess to give all attorneys time to view the records at issue.
The Deseret News reports similar objections at the inception of the hearing:
SAN ANGELO, Texas — The hearing to determine the fate of 416 Fundamentalist LDS Church children taken into Texas state custody got off to a rocky start this morning, with guardian ad litem attorneys representing the children making a flurry of objections.
As the first case got under way, an increasingly impatient Judge Barbara Walther tried to counter the objections launched by attorneys.
Just minutes after the first case was introduced, a guardian ad litem attorney representing an 8-year-old girl said she objected to today’s hearing, saying it violated Texas state law governing child custody cases.
The attorney said there was a lack of due process. She was objecting to the format of the hearing and said today’s legal proceedings did not constitute a “full adversarial hearing.”
The objections came just moments after Ellen Griffith, an attorney representing the Department of Family and Protective Services, said she wanted genetic samples collected from each child and each parent in her case, a psychiatric exam and counseling for the children, and that the children be placed outside the five-county area that is within the jurisdiction of this court.
Again, I think that is a powerful objection, and is well grounded given the text of the Texas Family Law statutes I have previously quoted. Why even consider short circuiting the due process rights specifically outlined in the Texas statutes just because Texas finds itself in the untenable position of having removed 400 plus children from an entire community and is now faced with the legal requirements put in place by the Texas legislature long before the FLDS came to town. This is troubling.
Judge Walther’s response to the myriad of objections was essentially that the objections were wasting time and that they were premature:
The judge had yet to address the department attorney’s request because of the numerous objections.
“Your objections are a bit premature,” Walther said. “It’s not the appropriate time for any lawyer to be saying they’ve been denied any right.”
The judge said, by law, the hearing has to be held within 14 days of the children being taken into custody.
“It is not a perfect solution. … You will be able to represent your clients individually. … This is wasting time,” Walther said.
The judge went on to say she fully understands that every lawyer will make an objection, but added “let’s just see how this works. … I admit it’s not going to be perfect.”
Two quick comments:
1. Due process is never, ever a waste of time:
2. What she has in mind may not be perfect, as she concedes–but hey, it’s got to be fair.
Update 11:21 a.m. The Salt Lake Tribune now reports on further rulings by Judge Walther:
SAN ANGELO, Texas – A judge is now beginning to rule on the first volleys launched by attorneys in today’s court battle over more than 400 FLDS children taken into state custody – everything from requests for genetic testing to the admission of medical records for the sect’s teenage girls.
District Court Judge Barbara Walther has just approved a state request to admit medical evidence gathered from three teenage FLDS girls who were taken to a temporary shelter at Fort Concho.
The judge has also admitted records detailing church membership taken from a safe in the office of Richard Barlow at the Fundamentalist Church of Jesus Christ of Latter Day Saints YFZ Ranch on April 5. Objecting attorneys had asserted the documents were covered by a clergy privilege.
Walther has yet to rule on a request from an attorney representing the Texas Department of Family and Protective Services for genetic testing and psychiatric or psychological evaluations for the children and parents.
So, the medical records are in, and there may be a battle over church membership records. There is sitll the issue of genetic testing requested by the state. I’m pleased to see what appears to be aggressive representation by the attorneys for the children, and their objections to en masse representation based on due process grounds.
A hearing to determine who gets custody of more than 400 children kicked off Thursday amid confusion stemming from the number of children, parents and attorneys, and the process for handling the hearing.
Children and their attorneys are being called in groups designated by color, with each color representing a different age and sex of the child.
Some attorneys said they were having to use limited information in representing children, particularly young ones.
Lawyer Susan Hays, representing a toddler, said she arrived at the hearing without records and had no access to the child’s father.
She was using only “what we know from the mothers and what we know from the court file,” she said.
The state has the burden of demonstrating to Judge Walther why the removals were necessary.
Because the case is so large — 416 children represented by 350 volunteer attorneys, as well as lawyers for the parents — those involved are spread among multiple locations around town, linked by closed-circuit television to the courthouse.
“I’m not in a position to advocate for anything,” complained Susan Hays, the appointed attorney for a 2-year-old sect member.
The mothers in the primary courtroom were sworn in as witnesses, standing and mumbling their ‘I do’s’ in timid voices. As they sat silently, the flock of lawyers buzzed with murmurs and popped up to make motions or object as Walther tried to maintain order.
But when prosecutors tried to enter into evidence the medical records of three girls — two 17-year-olds and an 18-year-old — the lawyers jumped to their feet and crammed the aisles trying to see the papers. That’s when Walther called the recess.
The custody case is one of the largest in U.S. history and involves children from 6 months to 17 years in age. Roughly 100 of the children are under age 4.
State officials contend the children were being physically and sexually abused or were in imminent danger of such abuse.
FLDS members say the state is persecuting them for their faith and that their 1,700-acre Yearning for Zion Ranch, with its soaring white temple and log cabin-style houses, is simply a home isolated from a hostile and sinful world.
They deny children were abused.
“It’s the furthest thing away from what we do here,” said Dan, a sect member who spoke at the compound Wednesday but declined to give his last name because he fears how it will affect his children in state custody. “There’s nothing that’s more disliked and more trained against.”
A major issue will be how a home is defined — whether by the individual house each child lived in or by the larger ranch, said attorney Susan Hays, who represents a 2-year-old child. Under Texas law, if sexual abuse is occurring in a home and a parent does not stop it, then the parent can lose custodial rights.
The judge also must decide whether it’s in the best interest of children who have lived insulated lives to be suddenly placed into mainstream society, Hays said.
Typically, each child would be given a separate hearing, but given the number of cases, it’s likely the judge will have the state, the children’s attorneys and the parents’ attorneys make consolidated presentations, at least initially, said Harper Estes, president-elect of the state bar.
For live periodic updates check out this article from the San Angelo newspaper. The reporter provides updates, apparently as he is able to get them out on the paper’s site. One particular recent entry caught my attention:
3:45 p.m., SCHLEICHER COUNTY – Two Houston attorneys – Jason Castaneda and Damiane Curbey Danieh – are leaving the YFZ Ranch after meeting the mothers of their new ad litem clients being held in San Angelo.
Castaneda says, speaking of the court proceedings: “We expected it to be quicker.”
Danieh says, “They we unable to get to the real issue of probable cause.”
Danieh also notes: “Parents did not receive a copy of petition for removal, which is a big issue.”
The two say they went to the ranch in part to see for themselves whether allegations that the children had been living in unhealthy conditions were true.
They were not, both say.
Another shortcoming in the state’s case, Danieh says, is the lack of the 16-year-old whose complaint launched the entire case. Without the girl or further proof of allegations, she says, CPS doesn’t have much of a case. The two say they are flying back to Houston tonight. They’ll be back when their young clients have a court date, they say.
When I seen this, I feel much better about the eventual fate of these poor children. It is clear these ad litem attorneys are not just going to roll over and let the state abrogate the rights of these children. Something positive coming out of Texas–finally!
Assuming Texas meets its burden under the law, and any of these children are placed in foster care, the following news report on the Texas CPS and foster care system is very troubling. Frankly, any children found at risk for abuse, should be removed from the family in question and given to another FLDS family at the ranch. I remain unconvinced every single mother and father at the ranch are child abusers. If they find evidence of abuse, then the perpetrators should be arrested and prosecuted. It’s been two weeks now since the initial raid. If there were pervasive child abuse, or evidence of such abuse, it is curious why absolutely no arrests have been made. Is Texas simply allowing child abusers to roam free in West Texas, while all the children are locked up? What’s going on here?
And, to see this news report, the abuse perpetrated by Texas upon foster care children appears to be far worse. Hat tip Connor Boyack:
Continuing . . .