Sweep of polygamists' kids raises legal questions

Associated Press/April 26, 2008

San Angelo, Texas - The state of Texas made a damning accusation when it rounded up 462 children at a polygamous sect's ranch: The adults are forcing teenage girls into marriage and sex, creating a culture so poisonous that none should be allowed to keep their children.

But the broad sweep - from nursing infants to teenagers - is raising constitutional questions, even in a state where authorities have wide latitude for taking a family's children.

The move has the appearance of "a class-action child removal," said Jessica Dixon, director of the child advocacy center at Southern Methodist University's law school in Dallas.

"I've never heard of anything like that," she said.

Rod Parker, a spokesman for the Fundamentalist Church of Jesus Christ of Latter Day Saints, contends that the state has essentially said, "If you're a member of this religious group, then you're not allowed to have children."

Attorneys for the families and civil-liberties groups also are crying foul. They say the state should not have taken children away from all church members living at the Yearning For Zion Ranch in Eldorado.

Church members said that not all of them practice polygamy, and some form traditional nuclear families. One sect member whose teenage son is now in foster care testified that she is a divorced single mother.

"Of course, we condemn child abuse and we don't stand up for the perpetration of that," said Lisa Graybill, legal director of the American Civil Liberties Union of Texas. But "what the state has done has offended a pretty wide swath of the American people with what appears to be an overreaching action to sweep up all these children."

State and local officials had been eyeing the sect suspiciously since it bought the ranch in 2003 and moved hundreds of its members in. They raided the property April 3, with heavy weapons and SWAT vehicles, after a female claiming to be a 16-year-old girl at the ranch called a family violence shelter and said her 49-year-old husband beat and raped her. That girl has not yet been identified.

State officials searched for a week for evidence of sexual abuse and rounded up all the children into mass shelters. As of Friday, the children had all been bused to foster group homes hundreds of miles away; only nursing infants still have their mothers with them.

Texas law has a "very low burden for removal of children from a parent's home, at least temporarily," Dixon said.

But state authorities are supposed to keep the children in their homes unless "a person of ordinary prudence and caution" believes there's a continuing and immediate danger to their safety.

"There was a systematic process going on to groom these young girls to become brides," said CPS spokesman Darrell Azar, noting that the state had no way to protect from possible future abuse if they stayed on the ranch.

"Removal is always the last option," he said. "In this case, there was no other choice."

CPS officials have conceded there is no evidence the youngest children were abused, and about 130 of the children are under 5. Teenage boys were not physically or sexually abused either, according to evidence presented in a custody hearing earlier last week, but more than two dozen teenage boys are also in state custody, now staying at a boys' ranch that might typically house troubled or abandoned teens.

Two teenage girls are pregnant, and although identities and ages have been difficult to nail down, CPS officials say no more than 30 minor girls in state custody have children. It's not clear how many other adolescent girls may be among the children shipped to foster facilities.

The sect believes polygamy brings glorification in heaven and its leader Warren Jeffs is revered as a prophet. Jeffs was convicted last year in Utah of forcing a 14-year-old girl into marriage with an older cousin.

Constitutional experts say U.S. courts have consistently held that a parent's beliefs alone are not grounds for removal.

"The general view of the legal system is until there is an imminent risk of harm or actual harm, you can't do that," said UCLA law professor Eugene Volokh.

Lawyers for the FLDS parents and civil rights groups complain that a chaotic mass custody hearing last week prevented state District Judge Barbara Walther from hearing any individual stories that might have led her to allow some parents to keep their children.

One FLDS member who did testify said she and her husband and their three children form a traditional family and live in a separate house from other sect members. An FLDS expert who testified at the hearing and a former member of the sect say only about half the marriages in the sect are polygamous.

Walther agreed to keep all the children in state custody after 21 hours of testimony in a hearing involving hundreds of lawyers.

"That's the hard thing about this. They want to paint everyone with the same brush," said Shelly Greco, an attorney who represents several children in the case.

The judge has said each mother will get an individual hearing by June 5.

If there was an underage mother in every home, the state might be able to make its case for removal of all the children, Dixon said, but it's likely that once individual hearings are held, some of the children may be headed back to their parents.

Another legal issue may emerge if investigators discover the call from the 16-year-old girl was a hoax.

Authorities are investigating whether the calls came from a woman in Colorado who has a history of making fake calls, but CPS officials and legal experts say the outcome of that investigation will likely have little bearing on the custody case, given that authorities went to the ranch believing the calls were legitimate and then found possible evidence of abuse.

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