Wednesday, May 28, 2008

Ambrogi: Appellate court ruling made blogging about YFZ raid safe

Having earlier criticized the legal blogosphere's relative silence regarding the Great Eldorado Polygamist Roundup, Robert Ambrogi at Legal Blogwatch writes that with the "appeals court ruling that the state had no right to seize the children, the blogosphere is at last breaking its silence." He continued:
In my earlier post about the silence of the blogs, some of those who commented proved prescient. One wrote that the raid "has both the Left and the Right holding their breaths with uncertainty." Another said that the issues "are so complex and distasteful" that many blawgers are "adopting a wait and see attitude." Still another said, "the 'ick' factor overwhelmed the facts." With yesterday's opinion, it is now safe for bloggers to break their silence.
Among legal blogs Ambrogi singled out:
Peter Tillers, for one, calls the case a "civil liberties disaster." Steven Ballard says the court "did the right thing in denouncing the outrageous government raid." Eugene Volokh describes the opinion as "a sharp and detailed rebuke of the Texas Department of Family and Protective Services," and considers the possibility of lawsuits against the department. Dahlia Lithwick finds parallels to Guantanamo, "as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time."
A few more legal blawggers have chimed in since Ambrogi wrote that. Civil Commitment adds that "much of the problem with the FLDS kidnapping is that there's nothing to like," quoting Wendy McElroy, an "individualist" and "feminist" who's hopping mad. At American Thinker, an attorney and a philosopher co-author an essay explaining the real precursor to the Great Eldorado Polygamist Roundup: "The McMartin daycare abuse tragedy blazed a trail."

Meanwhile, here's an MSM piece for the attorneys in the crowd: The Christian Science Monitor yesterday surveyed the church-state issues evoked by the YFZ raid and its aftermath. The story included this observation:
"If I had been advising the [DFPS officials] in their suit, I would have said, 'Don't even think of asking about their beliefs,' " says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "Ask about their conduct and intent to act. They don't have to abuse a child to be guilty of a felony if they have the intent. There should have been more focus on conduct."
The Third Court agreed with Hamilton's interpretation of what's historically been considered justifications for removing somebody's kids - their actions, not their religious beliefs. It's the affirmation of that legal touchstone, I think that perhaps has made the lawyers in the blogosphere more loose lipped on the subject.

In any event, there's plenty to talk about. To call the situation "fluid" would insult the relative stability of fluids. "Explosive" would be a more accurate term. Ambrogi's right there should be lots of continuous fodder going forward for the legal blogger crowd.

MORE: Forgot to mention a couple of Texas lawyer-bloggers who've written on the subject, starting Big Tom Kirkendall's recent post over at Houston's Clear Thinkers. Also, John Floyd reminds me that I should have mentioned his recent extended commentary on the subject. Several arguments in favor of the state's position have been assembled by our friend TxBluesman at Coram Non Judice. Who else am I missing among legal bloggers?

53 comments:

beowulf1723 said...

Grits wrote:"...quoting Wendy McElroy, an "individualist" and "feminist" who's hopping mad."

Why are the words individualist and feminist in quotes?

BTW, I posted the link to Wendy's comments on Monday morning on the comments to the "Rounding up news..." post.

kbp said...

For those in the "blogosphere" that wanted to "hold off" on reacting to what went on in the raid, but now point out the problems that show violations of the individual rights, I have little respect.

Even the guilty have rights, and if you take them away from suspects you feel are guilty, the innocent will lose them soon after.

Within the first week they had the resouces to see:

> State Representative Harvey Hilderbran has shown us, through his remarks in the media and various reports documented and available on the state web site, that there were state laws enacted around September of 2005 solely to be used against the FLDS members at the YFZ Ranch. The mindsets of those that passed the laws are on record in how they voted.

> Sheriff Doran told the press he has been working on the plan for the raid the past four years, waiting for the opportunity to go blazing through the gates at the ranch, which he did.

> The alleged victim, "Sarah", placed a call to the New Bridge Family Shelter on April 29th (more followed), that provided many details one has to consider when summarizing what the action that followed shows us. Those details included:

- She was a 16 YO pregnant mother of a child;

- The father often beat and raped her;

- A recent physical assault had resulted in her being hospitalized;

- This illegal conduct was a recurring problem she feared daily;

- That information informs us there was a life threatening situation on hand;

- There were TWO life's to be concerned about.

> A call of this nature must IMMEDIATELY be reported to the authorities.

> Leslie Brooks Long, the Texas Ranger that wrote the Affidavit for the initial Search and Arrest Warrants, did not interview the shelter worker that took the Sarah calls until ONE DAY before the raid, that would be FOUR DAYS after the call was received.

> Allison Palmer, First Assistant District Attorney, has told the press of her involvement from the start when the warrant requests were filled out.

> The Arrest Warrant did NOT list any crimes that reflected Physical Assault of a pregnant 16 YO was of concern to the authorities overseeing this operation, the crime reported that should be a LIFE THREATENING concern for any that were obligated to attend to the safety of "Sarah".

> Sheriff Doran, and those that assisted him, had meanwhile put together a team of 700+ officers, equipped and staffed with helicopters, an armored personnel carrier, sharp shooters and other officers armed with fully automatic "machine guns".

> Through numerous press reports from Ms. Marleigh Meisner, a spokesperson for the Texas Child Protective Services, it is known that they had assembled together 13 of their workers to accompany Sheriff Doran's raid crews at the ranch. A rather over-staffed crew looking for only one person, "Sarah".
> The entire outline of the Warrants used to raid that ranch centered on "16 YO SARAH", "SEX" and "CHILD", absent any focus on the LIFE THREATENING situation that called for IMMEDIATE action.

> This entire "save Sarah" raid took place FIVE DAYS after the 16 YO pregnant mother of a child Sarah had first reported the PHYSICAL ASSAULTS she feared daily.

Now, I have a great deal of respect for those on my "blogosphere" list that stepped forward to immediately write about the facts and pointed out to the world what they were overlooking. Grits For Breakfast is at the top of that list!

kbp said...

DNA test results soon

"Janece Rolfe, a spokeswoman for the Texas Attorney General's office, said Wednesday the results are expected by the end of this week - next week at the latest."

Could that mean SCOT will also wait?

They can if they want!

SCOTX:
"Has anyone seen a crime any where, we need a crime?"

John Floyd said...

Some of us have written our opposition to this witch-hunt from the beginning.
Here's my latest article discussing In re Steed: http://www.johntfloyd.com/comments/may08/25a.htm

kbp said...

More bullchit !

LISA SANDBERG, of the San Antonio Express-News, commonly seen as Terri Langford's side-kick in Chron "narratives", gives us the low down on those secret witnesses the CPS crew threatened to use to get custody of the newborn.

She starts it with the headline:
Custody of newborn halts testimony
Late deal by CPS keeps sect girls off witness stand over their alleged abuse


She then lets her readers IMAGINE that the testimony would be to expose the "underage marriage" problems, as if that's evidence needed to prove the state should take custody of the new born child because it's covered somehow under 262.201.

CPS spokesman Patrick Crimmins is then quoted saying "It is highly unusual to have victims testify, and we only choose to do it in cases that are crucial to proving that abuse occurred."

If the state has a victims in THIS CASE, they should file charges and end their misery in the media. This article runs in circles the way I read it. It next reports:
"Crimmins said the agreement achieved the state's most narrow objective — keeping a newborn in state care — though the agency may not get a similar future chance to admit the testimony.

"I don't know if there's another (civil) proceeding at which it would come to light," Crimmins said."


The only way I know of that would eliminate civil proceedings is if the state never tries again to keep custody of that baby, or any in the household they will allege these acts to have taken place.

To top it off, the article goes further into information I have never seen reported before (not that age anyway), and do not understand why it has not produced criminal charges if it is true. It's somewhat of a mystery to me how this is relevant to the custody suit they threatened to use it in, besides publicity in the media and Walthers prolly loving the idea.

"CPS officials contend that at least one of the girls summoned to testify was "spiritually" married when she was 11 to the sect's "prophet," Warren Jeffs, was related to Dan Jessop and lived for a time in the same building as the Jessop couple. The girl is now 13."

Anonymous said...

Its a blog about blogging!

How bloggingly blogful of you!

Anonymous said...

Did anyone see 48 hours last night?

kbp said...

Hello Mr. Floyd!

I'm not sure it is of any value to you (or anyone!), but I had your web in my bookmarks and respect all I had browsed over in your News link.

For any that have not seen his News page , he DID question it much earlier than most others.

rl said...

what was on 48 hours?

lowery.shirley said...

All of those McMartin kids are now grown and all of this horror has proven to be a sham but there are still people who go out looking for the non-existant tunnels of torture. We have learned nothing from the past People died in shame and in prison.
The one big difference I see is that case was CPS/parents against the school so parental rights never came into play.

beowulf1723 said...

Mater Deorum!!!

Mr. Floyd needs to put a warning at the beginning of that post. I found the description of the Martinez case extremely graphic and disturbing.

Caveat lector!

Anonymous said...

Seen 48 hours and it makes you wonder about those people.It was a show about the YFZ,Warren has mental problems.After his father passed away Warren married his fathers wife's.So he married his Mother.Woman are treated like trash they can not do any thing.The Men tell them who to marry.First Cousin's being married my god she was 14.If people won't to live like that fine.But let the woman make up there on mind.Another young man left when he was 18 his father told him he is not welcome back.If you did not see the show you missed a eye opener.It's very sad and sick.

Richard Wexler said...

Not only the Blogs are speaking out. I'm pleased to report that the website for The Nation has published a piece I wrote concerning the civil liberties infringements in this case, called "Their own private Gitmo." It's available here: http://www.thenation.com/doc/20080609/wexler

And, in fact, they accepted my proposal to do the piece before the appeals court ruling.

Richard Wexler
National Coalition for Child Protection Reform, www.nccpr.org

Anonymous said...

Thanks for article. Helps a little in explaining the puzzling reactions or lack of from blogs.

I've posted for weeks on a favorite blog, asking for 'diggs' on what few articles/videos that gave balanced reporting. Could not get more than 30 from a site that at times totals thousands to get articles on front pages and keep them there.

Melanie said...

SCoTx asks TRLA to file a reply brief by 9 A.M. tomorrow:

http://www.statesman.com/blogs/content/shared-gen/blogs/austin/politics/entries/2008/05/28/no_flds_ruling_will_come_today.html

"The Texas Supreme Court this afternoon asked lawyers for 38 polygamist mothers to file a reply brief by 9 a.m. Thursday — a very fast turnaround in the high-profile child custody case.

The tight deadline suggests that the high court will rule Thursday or Friday."

David said...

Hey, Gritsy,

Feel lucky today? I'll bet you another round that the SC overturns the 3rd.

You in?

kbp said...

I'd give 2 to 1 they can't touch what the 3rd did to the "SINGLE HOUSEHOLD" ruling.

Walthers had ZIP to show it was such.

That would leave a MAJOR problem no mater how they rule on the rest of the 3rd's opinion.

Fred said...

"Now, the nine-member court wants lawyers to weigh in on the heart of the matter: Was the 3rd Court of Appeals ruling an abuse of its discretion?"

I'm guessing not if it reviewed de novo as a matter of law. That wasn't clear in the 3rd's opinion because it did not state its standard of review.

Gritsforbreakfast said...

I'm in David, more for the good company than out of any sure certainty. Loser buys the first pitcher of the winner's choice.

It's hard to predict what will happen. I agree with KBP that the chances of overturning the "household" part of the ruling is virtually nil. It would have too many other profound implications.

More in play is the "beliefs are harmful" line. If they approve it, they'll add their names alongside the Court of Criminal Appeals as nationwide laughingstocks among their judicial peers. But then, that's never stopped the CCA.

The question is whether the SCOT decides it based on politics or law. The politics are complex and unpredictable; if it's decided merely on the law, though, the 3rd Courts ruling was actually pretty noncontroversial.

Fred said...

To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. Id. (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)). The standard is clarified by asking whether the trial court acted without reference to any guiding rules or principles. Spurlock v. Schroedter, 88 S.W.3d 733, 735-736 (Tex. App.–Corpus Christi 2002, no pet.).

The Family Code is probably guiding rules or principles, and acting contrary to it is acting "without reference to any guiding rules or principles."

Else, why have the code at all?

Anonymous said...

Yes, I also think household is the key. CPS could remove children from the household if they found one abused child (which in this case would under-aged bride) in that household. But if FLDS lived in multiple households, and CPS found no under-aged brides in many of those households, then what right did CPS have to remove all the children?

kbp said...

Brooke at the Trib on the deadline


Melanie's link to Statesman
Had to google, Statesman's search engine failed on it. Anyway, 90% of the comments were against the action by Texas. (luckily that was 9 of 10, pretty good on my math!).

I'm uncertain why Statesman would say a ruling should come by Thursday if the deadline for TRLA is filing is the same day.

I'm also curious why TRLA did not file a response already. They could add to it with a later filing if they wanted.

Fred said...

Do I misunderstand Texas law? If the 3rd rightfully found the trial court abused its dicretion, then the 3rd did not abuse its own discretion. Right?

Under the abuse-of-discretion standard, we must determine "whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). That a trial court may decide a matter within its discretionary authority differently than we would under similar circumstances does not demonstrate that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.).

Once we determine that the abuse-of-discretion standard applies, we engage in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Id. at 477-78. We approach the first question under traditional sufficiency review and then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.--El Paso 1998, no pet.).

Found at cool Texas family law blog, Splittsville Appeals.

doran williams said...

Fred, I cannot determine what the hell you and that other guy are talking about.

You are correct: 'The Family Code is probably guiding rules or principles, and acting contrary to it is acting "without reference to any guiding rules or principles." '

Look at section 262.201(a) for that guidance:

At the conclusion of the 14 day adversary hearing, the court shall order the return of the child "...unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that..(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to pssession and for the child to remain in the home is contrary to the welfare of the child [and] (2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and...reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home."

I'm not prepared to say that the three Republicans who decided this case are NOT persons of ordinary prudence and caution. I doubt that their brethren on the SC are willing to do, either. The 3rd CA found there to be NO evidence, not just insufficient evidence, but none at all to carry the state's burden. If there was NO evidence to support the trial judge's decision, that decision is as a matter of law unreasonable and arbitrary.


And of course, the efforts required of the STate by (2) and (3) were never made.

Again, I think the SC will find some way to support the legal reasoning of the 3rd, but to stay the issuance of the writ anyway. Or, it is conceivable that the SC may decide the "shall" really means "may" and therefore the trial court has a lot of discretion to ignore the absence of evidence. The Courts of Texas have, in other contexts, said that shall really means may.

If the SC goes in this direction, the logical conclusion is that the 14 day "adversarial" hearing is not needed; or more to the point, that it is a kind of Stalinistic Show Trial. Wonder what Professor Sampson and Judge McCown will do if this is what happens.

Fred said...

Looks like it is precisly on point:

In the Interest of D.N.C. No. 07-0621 (Tex. 2008) (child protection, CPS, DFPS suit, termination of parental rights, natural parent presumption) (award of conservatorship to child protection agency properly reversed along with termination of parental rights in the absence of independent basis for rebutting parental presumption); Opinion of the First Court of Appeals: Colbert v. DFPS, No. 01-04-01232-CV, 227 S.W.3d 799 (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)

Splittsville Appeals with a link to the opinion.

So there must be enough evidence to overcome the parental presumption.

kbp said...

I think I had posted this SCOTx ruling I came across.

In this case the majority opinion included a conclusion I thought described what Walthers did by ignoring all motions and not allowing individual suits to be addressed individually;

We conclude Living Centers is entitled to mandamus relief because the trial court abused its discretion by using only superficial indicators to deny Living Centers’s privilege claim as to nearly all the documents at issue.

That ruling also included discussion of SCOT's review of the evidence to determine if the discretion was abused. How could they determine the evidence was sufficient or not without reviewing it?

The trial court’s evidentiary determinations are reviewed for abuse of discretion and a trial court abuses its discretion when it fails to conduct an adequate in camera inspection of documents when such review is critical to evaluation of a privilege claim. In re E.I. DuPont de Nemours and Co., 136 S.W.3d 218, 222 (Tex. 2004)(per curiam). We find such an abuse of discretion in this case and direct the trial court to conduct further in camera review of those documents that may be privileged pursuant to this opinion.

...In this case, the trial court considered only the name of the documents or whether the documents were stamped with the QA & A indicia, and failed to consider other determining factors, including the purpose for which the documents were created.


Of course, if minds were made up before they started, the search will be for a way to reverse the 3rd!

David said...

LOL, gritsy says,

The politics are complex and unpredictable; if it's decided merely on the law, though, the 3rd Courts ruling was actually pretty noncontroversial.

I'm gonna learn you sooner or later - everything is political in Texas!

So, kbp is in too? Cool. How about you Michael?

Fred said...

doran williams,

What other guy? Grits? :) No one understands what I'm talking about, but I meant to say what you said. The trial court abused its discretion and the 3rd didn't by finding so. The 3rd, if I'm reading it correctly, can look at the evidence and can review de novo (anew ?).

What's more, CPS must overcome the parental presumption. No way!

Can you tell I'm not a lawyer?

Fred said...

kbp, good find. Maybe they will remand for the same reason and order the court to look at the evidence and release the children in the mean time.

That sounds most just and it's what CPS should have done anyway!

kbp said...

Fred

That "No. 07-0621" showed a problem in the "sufficiency of the evidence".

...and review was denied.

Anonymous said...

If Grits is right and the 3rd COA is correct in their ruling, then TRLA has to go to the Federal Courts and possibly - eventually SCOTUS.

I pity the blow to these children and the Texas Budget if that happens. It could take years and in the life of a child, a few months is a long time. If they mess around long enough, all the children will turn 18 and CPS will age them out.

Politics is about power and I was learned that power is about money. Texas simply cannot afford to keep these children on a "might" be abused claim.

FLDS will win if there is even one shred of constitutional rights left in this country.

kbp said...

Any that did not read the case I picked up from Fred, both of those points I mentioned were good.

TxBluesMan said...

Grits,

I assume you left out the legal blogs pointing out the faults of the FLDS for a reason?

I listed a couple that have points in support of the CPS at Coram Non Judice.

doran williams said...

Fred, the "other guy" is txbluepants. And I doubt that he is a lawyer.

Gritsforbreakfast said...

That's a strange assumption, bluesman. I put it in the addendum.

doran williams said...

I'm legal, and I practice a kind of open source blogging.....Does that count?

Fred said...

kbp, "The Department’s petition for reviews are denied."

The SCOT affirmed the appeals court, just like in this case.


"On appeal, Colbert challenged the sufficiency of the evidence to support the termination order, but she did not separately challenge appointment of the Department as the children’s managing conservator. The court of appeals reversed the termination order on factual insufficiency grounds, and also reversed the trial court’s conservatorship appointment. 227 S.W.3d 799, 816. The court reasoned that no findings had been made under Family Code section 153.131[1] that would independently support the conservatorship order, and thus the Department’s appointment was solely the consequence of the trial court’s termination decision under Family Code section 161.207[2] and had to be reversed as well. Id." link

The parent won!

kbp said...

SINGLE HOUSEHOLD

From the 3rd:
" In this case, the Department relied on the following evidence... to satisfy the requirements of section 262.201:

- All 468 children were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" ...

- The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.


Maybe someone could Wiki "extended family subgroups"!

What does the Family Code tell us about "HOUSEHOLD"?

71.005. HOUSEHOLD. "Household" means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

Anonymous said...

txbluesman: Research the Indian Pond, VT Raid (1984) where 112 children were taken. There State District Judge Frank Mahady said Vermont officials were trying to hold the children hostage to get information from their parents, and the mass raid was unwarranted. He said that in spite of the fact that he (Mahady) had a case before him where he said four children had (quoting from his own ruling) "been subjected to frequent and methodical physical abuse by adult members of the community" And that was before the Proxmire Act was passed.
And now with the evidence the state itself entered showing that she issued an order wherein adults were held as minors, the 51st District Judge has very little ground to stand on any more. It's a shame that the Texas lower Courts don't seem to have judges of the same caliper as the Honorable Mahady.

I think that if the TXSC thought it was going to issue a reversal as opposed to a mostly concurring opinion, it wouldn't have request a quick reply but instead have stayed the appeals court order temporarily and held a fully briefed hearing allowing the TRLA more time to reply. Essentially they're saying give us the best you have now, it's going to be good enough, if it's any good. I suspect the TXSC is embarrassed enough over prior DFPS/CPS misadventures that they are looking to give their lawyers something to think about in all their cases, probably something along the lines of take only

TxBluesMan said...

Grits,

Thanks for adding it - and excuse my irritability, I let John Lester get under my skin and was irritable.

Anonymous said...

More on Rozita Swinton here:

http://www.westviewonline.com/files/April_23.pdf


teaser:"according to a Nashville
source very close to her, is that
she actually was sexually
abused prior to being placed
in state custody as a child, and
that during the five years she
remained in custody she was
kidnapped by an associate of
her abuser and taken across
state lines to Texas and then to..."

kbp said...

Anon 9:48

I thought more about your comment. This repeats some of it, then goes further,


My opinion is that if they wanted to reverse the 3rd, it would have been completed after oral arguments, which looks unlikely.

The rush to file was imposed upon the parties responding (there is TRLA and Legal Aid of Northwest Texas). Were the SCOT leaning towards CPS, one should expect a stay and time allowed for the response to be thorough.

The only ones that would endure harm from delay are the children and the parents. The CPS is not harmed, maybe one could say the people of Texas, but... BS! The rush to file, absent a stay, is not something the SCOT would do to reduce harm for CPS. A stay could eliminate any harm the CPS could claim, that being a restriction on the time allowed to find a crime is that harm.

******************

Grits, you need to find David. TBM has his money on a reversal, and knowing his record I'd say you have an inside track on what to expect!

kbp said...

Don Cruse, over at the SCOTX BLOG points out that the response requested could be the result of only a single justice wanting that deadline, AND that ”The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court.” (Tex. R. App. P. 52.4)

This left me thinking what the situation is here:

The state / CPS is asking for a stay and what I'll call a reversal of the 3rd's opinion.

The parties that suffer the most with time delay are the children, followed by their parents, then maybe Walthers not knowing how much of the trial court's time to waste on the status hearings.

CPS gains relief through any delay in a ruling from SCOT, absent action enforcing the opinion of the 3rd. How long they can control custody while in search of "perpetrator[s]" is their bullchit big concern.

The rush was imposed upon those responding for the parents (maybe by a single Justice).

If the majority plainly felt uncertain about the 3rd's opinion, a stay would be easy to vote on quickly. This is a rush case and a stay should be no big deal, but evidently the majority is not looking for that stay.

If a majority was searching for some technical reason to overrule the 3rd (like CYA to get what they want), I feel a stay would come to allow time to perfect that approach.

************

Oh yeah, thanks TBM. SCOTXBlog was a link from a link I found at your blog.

kbp said...

TRLA's response to the Writ

BRIEF OF AMICI CURIAE, American Civil Liberties Union & American Civil Liberties Union of Texas, IN OPPOSITION TO RELATOR’S PETITION FOR MANDAMUS

Headmistress, zookeeper said...


Here's a story on yet another one of the disputed minors- this one is 26 years old
:Rosanna Barlow is 17 going on 26.

Just when she stops being 17 and starts being 26 in the eyes of Texas, however, remains uncertain.

"It's one of those things," said Adam Caldwell, a Utah attorney who presented last week in court a birth certificate showing the mother of three is actually an adult. "Once Texas finally admits their error, her reward is to be separated from her children."
[...]
Her reclassification also would add another twist to the case, as the service plans developed by CPS to lay out a groundwork for reuniting the families cite two juveniles with three children each as a reason for alleging sexual abuse at the ranch.

Would the other 'juvenile' with three children have been 22 year old Louisa?

kbp said...

I wonder what happened to the response from the Legal Aid of Northwest Texas?

I had the understanding they had the same deadline.

Headmistress, zookeeper said...

Kpb! Read page 8 of the pdf file- we've found where they're getting the pregnant 13 year old, and it was NOT from the Bishop's Record.

Whew.=)

(it's in the footnote)

Anonymous said...

The YFZ ranch has only been in existance for 4 years, the law regarding 16 being the age of consent is only 3 years old.

A couple of conclusions:

At the time of the pregnancy, the age of consent (with parents approval) in Texas was 14.

Most likely the pregnancy did not begin in Texas.

The age of 13 at the time of pregancy may very well fall apart when the Month of Birth of the Mother and the Month, Day, Time of Birth of the Child are examined. Also, the child may have been born "premature".

So, what does this have to do with removing 450 or so children from their parents without due process?

This entire event has been a great education for the people and Judges of Texas.

The CPS folks will have to do a much better job in the future. Everyone benefits from that.

Now--------Return the children!

kbp said...

Parts & pieces from TRLA's Response:


"...if this or any other court were to question the wisdom of this statutory scheme enacted by the legislature [restriction to prevent state from interfering with parental rights], under the separation of powers doctrine, the court's role is simply to apply the statute as written [addressing the 3 prongs required to be met BEFORE taking Temp. Custody]...

This is a statutory-application case - not a statutory-interpretation case...

The court of appeals faithfully applied the statute as written. The trial court did not...

the department puts forth a jumble of assertions about beliefs, combined with it's only POTENTIAL EVIDENCE of physical abuse - five minor girls who were pregnant or had children - and summararily argues that this evidence satisfies all three [prongs so they could take ALL the children]...

Instead of focusing on whether EACH parent engaged in or tolerated the sexual abuse of their children, the Department put their entire religion on trial... children should be held in custody because of the alleged beliefs of the parents...

The court of appeals did NOT discredit any testimony or engage in independent fact-finding when it concluded that the ENTIRE ranch is NOT one HOUSEHOLD: it only rejected the legal definition of "household" adopted by the Department's own witness.

And, in any event, proving parentage is NOT the parents' burden under the statute... a parent has no burden to prove WHY the child should be returned, or whom he should be returned... even if the Department's professed confusion has any credence at all, it cannot justify failure to return ALL of the children ['ALL' meaning those of the 38 mothers I assume]."


Footnote 1, PDF page 13, shows some interesting details about the claim of a 13 YO having conceived a baby (8 years ago according to Voss!).

*********

HM

I had this typed before seeing your comment.

It is easy to get some of the mothers confused in this mess. I was under the impression that one of the mothers, maybe this 22 YO, had some fabricated extra child the CPS listed for her.

TRLA doesn't appear to correct that in the footnote, but I am not certain they care to debate such a topic here.

I am not certain what is fact here, but have to admit the records keep telling of a 13 YO that conceived years ago.

To top it off, I think the Bishop's Records was mentioned as THE source of that 13 YO by both sides in the briefs filed to the 3rd.

kbp said...

Anon 12:47

Nothing is free in life.

Texas may have to pay for this lesson!

kbp said...

Just for kicks, I'd like to repeat:

The court of appeals did NOT discredit any testimony or engage in independent fact-finding when it concluded that the ENTIRE ranch is NOT one HOUSEHOLD: it only rejected the legal definition of "household" adopted by the Department's own witness.



"It's early in the GAME..."

Allison Palmer, ADA

Headmistress, zookeeper said...

Brooke Adams mentioned Louisa Jessop as being one of the 'minor mothers' who got that status by CPS assigning a couple extra kids to her.

Both sides did cite the Bishop's Record as the source for the 13 year old previously, as did Brooke. My guess is that others took CPS' word for it and now know better. Or somebody from TRLA reads your comments.=)

And I think the 13 year old is arrived at by Angie Voss' math- subtracting 8 from 22- but I get 14 when I do that math. Whenever it is possible for her to err against FLDS, she's shown herself willing to do that. And she isn't very good at math, as one of my regular blog commenters keeps pointing out. It maddens him.=)
Brooke also pointed out Voss' trouble with figures in her blog post about Pamela and Louisa- where she points out that CPS had their ages correctly in the 14 day filings, and that they arrived at minor status for one of them by assigning extra children, and for another by doing the math wrong- Voss had Pamela conceiving at 15, when, giving all the birthdates, it could have been no sooner than 16.

Still perhaps a problem, but it looks to me like FLDS was trying to follow the law as they understood it and a better remedy would have been to let them know the law had changed and what was required.

kbp said...

Grits has a new post up, for any that missed it.