BeldarBlog

Texas Supreme Court points to less disruptive protections available for FLDS children

This afternoon, the Texas Supreme Court denied a request made by the Texas Department of Family and Protective Services to overturn last week's ruling by the Austin Court of Appeals in the polygamy/child custody dispute involving the Fundamentalist Church of Jesus Christ of Latter Day Saints and their Yearning for Zion Ranch.

The mainstream media and some legal pundits and commenters (see, e.g., here) may play this as another big loss for the Department. But in fact, the Texas Supreme Court gave the Department (and the lower courts) some badly needed suggestions and guidance, and clearly signaled that more carefully tailored relief may still be appropriately granted at the trial court level even on this vastly incomplete record. And while it presumably needs to move swiftly, the Department does not necessarily have to immediately return all the children with no strings attached as the trial court considers those alternatives.

Smart people (including smart lawyers) of goodwill are finding themselves on opposite sides of these issues — as evidenced by the 53 comments so far on my previous post on the controversy. I'm going to pat myself on the back a bit, though, for predicting last weekend pretty much where the Texas Supreme Court would come out today:

Ultimately I think the court of appeals reached the correct decision, given the state of the current record. There's just not the required "emergency" to justify taking those kids away from their parents on an across-the-board basis right now, without investigation and proof on a family-by-family, child-by-child basis.

In a subsequent comment, I went further out on the limb: "I don't think the Texas Supreme Court will reverse the Austin Court of Appeals." And in another comment, I went even further and got more specific:

[N]otwithstanding the Austin Court of Appeals' mandamus ruling, there are still lots of options available to the Department and the trial court short of returning unencumbered custody of even the relators' children back to them. I think I've read (but can't immediately find a link to back up) that those particular children are being returned conditioned upon them not being returned to the compound, but instead with a requirement that the families reside under supervision in the San Antonio area. Depending on the degree of supervision, that might lessen the flight risk substantially.

Moreover, the Department may not, and ought not, treat the court of appeals' ruling as binding across the board to families who weren't relators. For those with pubescent female children, the Department might stand tough on the existing orders, and/or seek rehearing at the trial court level with more particularized evidence.

Now it turns out that a majority of the Texas Supreme Court sees the case pretty much the same way. A fairly short and sweet per curiam (i.e., unsigned) opinion for the court's majority holds:

Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.

But that holding emphatically does not mean that there should be widespread cork-popping of non-alcoholic champagne at the FLDS compound tonight. Without pausing to start a new paragraph, the per curiam opinion plunges into a very overt, very clear suggestion — technically dicta, but as powerful as dicta ever gets! — as to what the Department and the trial court ought to do next (footnotes omitted; boldface mine):

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The [district] court may make and modify temporary orders "for the safety and welfare of the child," including an order "restraining a party from removing the child beyond a geographical area identified by the court." The [district] court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, [the district court] need not [vacate those temporary orders] without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR [suits affecting parent-child relationship] proceedings.

Although the SAPCRs involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues.

This is the Texas Supreme Court saying to both the Department and the trial judge: Your baby ducks aren't yet in a row. We understand that you have some pretty persuasive reasons for why that's so, but they still need to be in a row before we'll let you continue separating baby ducks from mommy ducks during the period between now and the final trial of this case. And you probably need more than one row, because not all the baby ducks are the same. So get busy. (And in the meantime, provided you're moving briskly, you don't have to immediately turn all of the baby ducks back over to the flock, especially if they're pubescent female ducks.)

Three members of the Texas Supreme Court wrote separately, concurring in part and dissenting in part, to basically emphasize what I think was the implicit (but clear) message of the majority's per curiam opinion. However, they think the Department has already made an adequate showing with respect to pubescent female children, and would have reversed the Austin Court of Appeals' mandamus order with respect to them. They also were very unsympathetic to the mothers' complaints about the lack of thoroughness in the proof presented to the trial court, given other evidence submitted by the Department as to the interference in its fact-gathering efforts. These three justices thought that such interference and noncooperation justified the Department and the trial court in failing to exhaust less severe remedies than splitting all the children from their parents and putting them into temporary foster care.

That, admittedly, is a minority position. It will function as a pat on the back to the Department and the trial judge, but that and $4.75 will buy them each a grande mocha latte at the Starbucks in San Angelo. Nevertheless, it certainly is a counter to those pundits who've characterized this raid and the aftermath in extreme terms, portraying it as basically a mass-kidnapping by a fascist, anti-religious, and completely inept state government.

As for me: Since it did what I predicted, you'll be unsurprised to hear that I think the Texas Supreme Court majority got it just about exactly right — including where it stopped writing. The only thing of which I'm absolutely sure is that nobody in the Texas Legislature, when they were revising the parts of the Texas Family Code that currently make up the chapters on emergency removals and SAPCRs, ever envisioned a proceeding of this scope. Nor were the Department, local and state law enforcement agencies, or the local trial courts remotely prepared to grapple with so many, to and for whom so much is so important.

That this has not been "pretty" so far, in the sense of being well organized and methodical, should surprise no one. Even competent, well-meaning professionals working at the limits of human capacity — on both sides! — have fallen, and are going to fall, far short of perfection as this sorts out. So let's try to limit the demonization and conspiracy theorizing, as well as the smugness (of which I've seen way too much in the blogosphere, including among legal pundits and commenters who damned well ought to know better).

Commenters: Your thoughts continue to be welcome, but please use extra efforts to be civil to one another and to avoid personal attacks. If you have a tie to the case, I encourage you to disclose that. (I have none.)

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UPDATE (Thu May 29 @ 7:50pm): Sure enough, here's an example of well-meaning but utter bone-headedness by the Houston Chronicle in their lede on today's ruling:

The state illegally removed more than 400 children from their parents last month after raiding a polygamist sect's West Texas ranch, the Texas Supreme Court said today.

The decision was a stunning victory for a group of the mothers who were represented by legal aid attorneys in their challenge of the largest custody case in Texas history.

And it will make it much more difficult for child welfare authorities to continue their investigation into whether children were abused on the remote compound owned by members of a breakaway Mormon group known for its polygamist practices.

Three breathless paragraphs. All three are wrong.

Working backwards: As I've pointed out in the first part of this post, the main significance of the decision today, and the surprise if there was one, was in the Texas Supreme Court giving the Department and the trial court a roadmap about how to go about granting lesser, more carefully tailored relief.  That makes it rather easier for "child welfare authorities to continue their investigation." Indeed, the Supreme Court pointedly reminded the Department and the trial court that they have so-far-unused remedies for occasions upon which their investigations are interfered with.

This was a victory for the moms, but only a clear victory for the particular ones who were part of the mandamus proceedings, and even for them, it was hardly "stunning." I predicted it, for example, including to the extent that it would actually gratify the Department. Most other pundits and press who were making predictions were, to my knowledge, predicting that the Texas Supreme Court would indeed affirm. Moreover, given what else the Court said today, its ruling makes it rather less likely that even those moms will immediately get back their kids with no strings attached. It's a rather equivocal victory, I'd say, and maybe in the big picture not even that.

Finally, as I pointed out in my prior post, these decisions aren't on whether the seizures of the children were "legal" or "appropriate" or "in good faith" or anything else in the first place. They were on whether the Department has to return the children at the conclusion of the adversary hearing mandated by a completely different subchapter of the Texas Family Code. You can search all you want for the word "illegal" in today's per curiam opinion. It's not there. What the Texas Supreme Court actually said, correctly, is that it is "not inclined to disturb the court of appeals’ decision," which in turn was a decision that "the Department had failed to meet its burden of proof under section 262.201(b)(1)." Section 262.201 is entirely forward-looking, and entirely focused on the interim time period between the adversary hearing (which by statute had to begin within 14 days after the seizure) and a final trial on the merits. It's the "removal" of the children from their parents by the trial court in its orders at the conclusion of the adversary hearing that the Supreme Court found to "not [be] warranted."

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UPDATE (Thu May 29 @ 8:22pm): InstaPundit Glenn Reynolds quotes an equally misleading headline from the Austin American-Statesman: "Court: Polygamist sect’s children must go home." Well, yeah, except that's not at all what the Texas Supreme Court actually said, or even very close. I hope he'll look more closely, because this is an interesting case that would benefit from more than just headline-depth analysis. (Especially when the headlines are misleading.)

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UPDATE (Thu May 29 @ 10:45pm): This article in the Dallas Morning-News, by contrast, is a good piece of reporting.

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UPDATE (Fri May 30 @ 12:35pm): As is unfortunately typical, the Houston Chronicle has now completely rewritten its original news story, and placed the new one at the same URL as what I linked earlier. (When, oh when, will the Chron realize that in the internet age, that sort of hiding the ball and erasing of tracks amounts to gutless, dishonest journalism? But it happens on a daily basis at the Chronicle — whereafter they hide their archived content behind a subscription-only firewall. These are the main reasons why I avoid linking or quoting my hometown newspaper whenever possible.)

The three lede paragraphs I quoted above have disappeared. And among the paragraphs (appropriately) added to the new version — without explanation or excuse for why it wasn't in the original:

It was not clear exactly when the children will be returned and restrictions can be placed on their living arrangements.

CPS attorneys will have to decide whether to go back to court to try to regain custody of some of the children, particularly the underage girls, whose safety has been at the heart of this case.

....

The court ordered District Judge Barbara Walther to withdraw her order giving the state custody of all the children, who are scattered around the state in group homes and shelters. But it noted that she can place conditions on their return, including requiring them to stay in West Texas and removing alleged abusers from their home.

University of Texas Law Professor Jack Sampson said the ruling gives Walther broad discretion to provide greater protections to teenage girls, and that she can make sure CPS has access to children who are returned to the ranch.

"She has the power to ensure that the kids aren't going back unmonitored," he said.

There's more along those same lines — at least at the moment I write this. (Who knows what will be at that URL this time tomorrow?) But it's not even certain that "returning to the ranch" is in the cards for any of these kids. If I were representing the Department, I'd certainly argue, at least with respect to families containing pubescent girls, that the girls' return to their mothers should be conditioned on the mothers living elsewhere than the ranch for now, and under fairly heavily supervised conditions to minimize the flight risk.

Beldar on Volokh on the Texas polygamy/child custody case

A few folks have asked me for my take on the Austin Court of Appeals' overturning this week of the state trial judge's interim child custody decision in the big Texas polygamy/child custody case. UCLA Law Prof. Eugene Volokh is one of the smartest law professors blogging today, and I agree with him probably 98% of the time. But in comments to this post of his (many of which he was kind enough to respond to in further comments), I disagree strongly with his conclusion that the appellate court was administering a "sharp rebuke." Perhaps you have to actively practice law regularly to have a clear sense when an appellate court is just saying "This side lost," and when it's saying, "Boy, howdy, this side needs a trip to the woodshed because it was way, way out of line, and let's include the trial judge in that whuppin' too." This was an example of the former in my judgment, whereas Prof. Volokh apparently reads it as an example of the latter.

Prof. Volokh and I also disagree very strongly on the significance of this ruling for the future. In both his original post and a subsequent one, Prof. Volokh suggests that the court of appeals has conclusively found a "violation" of the relevant law by the Texas Department of Family and Protective Services in seeking an order temporarily depriving the parents of custody. But to start with, the words "violate" and "violation" appear nowhere in the court of appeals' opinion. This appellate court mandamus proceeding determined whether the State is entitled to continue keeping the children, but that's decided on the basis of an entirely different subchapter of the Texas Family Code than would be at issue in deciding whether the State had an adequate basis to take them away in the first place. Those questions, and the legal standards for deciding them, are closely related. But they are not, as Prof. Volokh presumes, exactly identical.

Professor Volokh also ignores the fact that this was an interim appellate ruling on an interim trial court ruling. There is no conceivable way that this interim ruling could preordain the outcome of, for example, a separate damages lawsuit by the parents whose children have been temporarily separated from them. (At a minimum, for this ruling to be binding against the State in any separate lawsuit under the doctrine of "collateral estoppel" a/k/a "issue preclusion," it would have had to have come from a final judgment on the merits after all appeals have been exhausted.)

Ultimately I think the court of appeals reached the correct decision, given the state of the current record. There's just not the required "emergency" to justify taking those kids away from their parents on an across-the-board basis right now, without investigation and proof on a family-by-family, child-by-child basis. But that won't be nearly as important a factor in the ultimate decision in this case on the merits. I consider myself a civil libertarian. But I would have no trouble agreeing with the State here that it's contrary to the long-term best interests of the affected children to raise them in a tight, isolated culture whose entire premise is to evade state law, to secretly coerce pubescent minor girls into arranged marriages, and to indoctrinate both boys and girls into that culture. The State needs to prove that far more thoroughly, on a family by family and child by child basis. Ultimately the State's case is likely to rest on factual inferences drawn from circumstantial evidence — the patriarchs aren't ever going to admit to being serial sexual predators ruling over a fiefdom designed to ensure their continual supply of pubescent "wives" — so the State's eventual proof of those circumstances needs to be exhaustive.

Odds I would have given, and odds I won't take, on future terrorist attacks on American soil

There could be another one tomorrow. Or in three months and a few days, to commemorate the anniversary of the first one.

But there has not been a major terrorist attack, by al Qaeda or otherwise, on American soil during the roughly six and a three-quarter years since 9/11/01.

When Barack Obama and the Democrats tell you, again and again, as if it's an indisputable truism, that "George W. Bush's foreign policy and national security policy have been unmitigated disasters," that rather important fact — almost seven years since the last major terrorist attack on American soil! — is enough all by itself to refute their argument.

Indeed, if you had asked me in late September 2001 what the odds were that we could survive two full years without another major terrorist attack on American soil, I'd have given you poor odds (at least 10 to 1 that another attack would occur). If you'd asked what the odds were that we could survive another five full years without one, I'd have given you overwhelmingly grim odds (at least 50 to 1). Turns out, I would have been wrong.

But it just doesn't seem all that remarkable to us anymore that, hey, our office towers are pretty much not imploding in onto themselves and falling out of the sky. Our train stations aren't filling up with shrapnel or nerve gas. Our petrochemical refineries and nuclear power plants haven't been sabotaged. Only people who fail to remark on such things can also listen to Obama preach about "Bush's failures" without laughing.

It should seem remarkable. It genuinely is remarkable. Indeed, I encourage each of you to remark upon it, confidently, the next time someone like Obama says something so pathetically stupid about "George W. Bush's unmitigatedly disastrous foreign and national security policies."

Likewise, we Americans, even those of us who genuinely do cherish and honor our military forces, mostly tend to take for granted that they can whip anyone who will come out to fight them, any where and any time, and that we'll do so by margins so lopsided and decisive that they lack any comparison throughout the history of human warfare. But I don't think our potential enemies make that mistake.

Back in the late 1970s, immediately post-Vietnam, and even the 1980s, the leaders of a third-rate tin-pot dictatorship like Iran might have flattered themselves into thinking that they could at least give us a good fight. Desert Storm proved to the world, however, that anyone else giving us a "good fight" is an unlikely proposition, and Iraqi Freedom made it an absolutely preposterous one.

The practical limits to American military power are those which are self-imposed by our fundamental decency and sense of responsibility, and, frankly, by our own long-term self-interests: If we're going to topple a regime like Saddam's, we don't just walk away after the statues have been pulled down, or even after the war criminal trials have been concluded. Democrats are fond of quoting our own generals who say, "There is no military solution in Iraq." Well, of course there is: We could turn the entire country into a radioactive green-glass parking lot by noon tomorrow if we weren't self-constrained from doing so by other considerations. Short of that, we could — if we had the desire and political will — flood the country with sufficient occupation troops to turn it into a well-run prison camp; but we're self-constrained from doing that, too.  So we choose to consider and employ other alternatives, even ones that are messy and costly and slow.

But even if the Iraq War did nothing else (a proposition I reject), however, it emphatically demonstrated to every other country in the world that, in their dealings with the United States, there simply is no "military solution" which can favor them.

Consequently, when the leaders of the Iranians or the North Koreans or the Syrians or the Libyans (or for that matter, the Paskistanis or the Egyptians) send their proxies to sit across the table from Condi Rice and her own minions, there is never any "My daddy can beat up your daddy" subtext to the conversations. Everyone on the block knows that the results of any military conflict are preordained. They all watched the American Big Daddy thrash the stuffings out of the last other Daddy who chose to fight. And for the remainder of George W. Bush's term, there will be no doubt in their minds that similarly provoked, America could, and very well might, do the same to them. And so, currently, they act up and misbehave in direct proportion to their confidence that Dubya, if provoked by them, will be sufficiently restrained from undertaking any military solutions by a war-weary and often short-sighted Congress and public. (Do you think it was accidental that the Iranians seized and kidnapped British sailors and Marines from international waters in the Gulf last year, instead of American ones?)

The day Barack Obama takes over the White House, though, everything changes. Would Barack Obama — the candidate preferred, bought, and paid for by MoveOn.org, which opposed even the Afghanistan regime change — react surely and decisively to a challenge to American interests? I don't think he would — not unless he were absolutely convinced that failing to do so would result in his being immediately impeached in the House and successfully convicted in the Senate. I don't think foreign enemies of America believe he would, either. He might talk, and scold. But he'd include America itself in the scolding! (He'd especially, and conveniently, blame ... George W. Bush!)

The best I can say is that however gravely its international interests would be wounded, America, at considerable cost, would probably survive four years of an Obama presidency. We survived Jimmy Carter, an equally naïve buffoon. But if Obama wins, I won't give you even astronomical odds — not a thousand to one, not even a million to one — that there won't be another terrorist attack on America comparable to 9/11/01 during his four-year term of office.