By Melissa Staas, Staff Attorney
May 27, 2008
Six weeks after the Eldorado, Texas raid in which child-protection officials ripped more than 450 children-one-half of whom were under the age of five-years-old-from their parents, the Texas Court of Appeals affirmed that even when political issues of religion, polygamy, and the alleged sexual abuse of minors are at stake, our society is to be a government of laws, and not of men.
On May 22, 2008, the Texas court ruled that the evidence presented at the temporary custody hearings in April was insufficient to authorize the continued separation of parent and child. When confronted with the court’s decision, the Texas Department of Family and Protective Services [hereinafter the “Department”] continued to defend the raid by asserting that their one duty is to “protect children” and noting that when they “see evidence that children have been sexually abused and remain at risk of further abuse, [they] will act.” This justification begs the same questions presented in the Family Defense Center’s Dupuy litigation (currently pending in the United States Supreme Court): Who is authorized to weigh this “evidence” and to make conclusions as to the existence of abuse? Do constitutional guarantees of due process contradict with a child protection agency’s self-proclaimed mandate to “act?” When there has been no abuse or neglect in fact-and when there is no particularized evidence that a child is at immediate risk of being abused or neglected-does separating children from their parents “protect” them, or does it cause them greater harm?
The Texas agency’s reported mishandling of this investigation (for example, of the individuals taken into custody upon belief that they were underage mothers, 8 have been positively identified as adults) serves to highlight the fallacy in assuming that the best way to protect children is to err on the side of presuming abuse or neglect-even when there is only a scintilla of evidence, such as, in the Texas case, a hotline call made by an as-of-yet unidentified person whose credibility is questionable. This fallacy is based on the misconception that if there hasn’t been any abuse or neglect, an investigation of an allegation is itself benign and innocuous. Rather, intrusive action on an erroneous presumption of child abuse/neglect can have lasting and traumatic consequences for a family. In the Texas child protection case, hundreds of very young children have been separated from their parents and their siblings. The children were held at an old military facility for the first few weeks, after which they were relocated to San Angelo Coliseum. Although some of the mothers of the younger children were allowed to stay with them for a while, the mothers were coerced (according to one mother, via direct lies from state officials) into leaving their children a few days before the first custody hearings in April. Currently, the children are being held in various foster care and institutional placements across the physically immense state, separated by hundreds of miles from their parents and siblings. Tim Edwards, a lawyer in San Angelo who represents four mothers, acknowledged the devastation of an unsupported removal and noted that the “situation is traumatic to many people and the recovery from that trauma may be slow in coming.”
Similar to the law in Illinois, the Texas statute requires that when children are removed from their home, the court must find that there is a danger requiring immediate and urgent removal because less-intrusive means cannot eliminate the danger. Commendably, the Texas appellate court insisted that these words-immediate and urgent-be afforded their due meaning before the State takes the “extreme measure” of separating a child from his or her parent. Compelling the lower courts to respect the tenets of due process will ensure that only those children who are truly at risk of abuse or neglect must endure the additional devastation of being separated from their families and that unnecessary damage will not be done upon children for whom there is no risk of abuse. Given that the Department has appealed the appellate court’s decision to the Texas Supreme Court, it remains to be seen whether the highest court in our largest continental state will see its way to protecting all children.
In Dupuy, similar principles of law are in issue: can “mere suspicion” form the basis for extreme State action against families? It is heartening that at least one intermediate appellate court has required more than a blanket assertion of grounds to intervene. Yet, the Texas case highlights the lack of a general public understanding that every family-and not just those who share our religious views or mainstream lifestyle-are entitled to due process.