Saturday, May 24, 2008

The civil liberties watchdog that didn't bark

Wendy Kaminer at The Free For All takes my former employers at the ACLU to task for their failure to get involved in the YFZ Ranch case and their "tepid, tentative statement of 'concern.'” writing:
This general acknowledgment that the summary removal of 416 children absent actual evidence of their abuse threatens fundamental rights is preferable to the silence that preceded it, barely. The ACLU’s statement is more like an exercise in public relations than a defense of civil liberty; taking no stand for or against the state’s unprecedented actions in this case, which threaten to consign over 400 children to foster care, the statement seems designed to offend no one, while providing cover for the ACLU, should it be accused of ducking a hard civil liberties case. ACLU spokespeople sound more like bureaucrats than fearless advocates of individual rights: they carefully pay deference to state power to protect children, ignoring the dearth of evidence in this case, and stress that the ACLU “deplores crimes against children” and “stand(s) opposed to child abuse,” in case anyone thought the ACLU stood in favor of it.

Obviously anxious about appearing “soft” on child abuse (at a time when rational approaches to protecting children have been perverted by hysteria about abuse,) the ACLU prefers being soft on violations of civil liberty, when the liberties of wildly unpopular or politically incorrect groups are at stake.
Ouch! See the rest here. UPDATE: Here's ACLU of Texas' statement about the ruling from the 3rd Court of Appeals, which the group "applauds."

Via the Massachussetts Divorce and Family Law Blog.

59 comments:

beowulf1723 said...

The lack of a vigorous response from the ACLU, both in Texas and nationally, is pretty disgusting. Roger Baldwin is probably spinning in his grave right now.

Wendy Kaminer also has a brief discusion of polygamy, with a link to the 1878 SCOTUS decision.

Anonymous said...

What now about the DNA they collected can they request it be removed from the system. Was the court ordering it legal ,under the circumstances,??

Bev said...

from Ann Bartow at Siva's site:

http://www.sivacracy.net/2008/05/barbara_bennett_woodhouse_hidd.html

Barbara Bennett Woodhouse, "Hidden in Plain Sight: The Tragedy of Children's Rights from Ben Franklin to Lionel Tate"

From the publisher's website:
http://press.princeton.edu/titles/8613.html

Hidden in Plain Sight tells the tragic untold story of children's rights in America. It asks why the United States today, alone among nations, rejects the most universally embraced human-rights document in history, the United Nations Convention on the Rights of the Child. This book is a call to arms for America to again be a leader in human rights, and to join the rest of the civilized world in recognizing that the thirst for justice is not for adults alone.

Barbara Bennett Woodhouse explores the meaning of children's rights throughout American history, interweaving the childhood stories of iconic figures such as Benjamin Franklin with those of children less known but no less courageous, like the heroic youngsters who marched for civil rights. How did America become a place where twelve-year-old Lionel Tate could be sentenced to life in prison without parole for the 1999 death of a young playmate? In answering questions like this, Woodhouse challenges those who misguidedly believe that America's children already have more rights than they need, or that children's rights pose a threat to parental autonomy or family values. She reveals why fundamental human rights and principles of dignity, equality, privacy, protection, and voice are essential to a child's journey into adulthood, and why understanding rights for children leads to a better understanding of human rights for all.

Compassionate, wise, and deeply moving, Hidden in Plain Sight will force an examination of our national resistance--and moral responsibility--to recognize children's rights.

Highly recommended!

Michael said...

What was the ACLU supposed to do? Find or recruit 450 attorneys to represent the children or mothers? Maybe they have the resources to do that, but I doubt it. Would the ACLU affiliation of the attorneys make the clients more sympathetic with the Republican appellate panel that decided the case, or less?

I agree that the ACLU could have made a stronger position statement than it did, but the ACLU may be keeping in mind that there are genuine concerns about the safety of the children at YFZ, even if they aren't immediate and don't justify removal. That doesn't make them disgusting. Anyway, Beowulf, what was your response?

Anonymous said...

The Texas and American ACLU could have made a statement about their commitment to support these parents and children and help them protect their rights under the constitution of Texas and the United States.

Oh, you say, that goes without saying! Does it? An affirmation of the ACLU's commitment to the protection of Civil Liberties needs to be made as ofter as possible.

The ACLU missed a chance to get visibility for thier mission and support for their efforts.

Sad!

I guess the calvery doesn't come riding in until after the damage is done and all there is left to do is clean up the mess. Why is the ACLU afraid to portect civil liberties and children at the same time?

Anonymous said...

Why is the ACLU afraid to portect civil liberties and children at the same time?

Why all this talk as if protecting civil liberties and the rights of children mutually exclusive?

It's irksome enough that CPS talks about it in this way when they respond that their obligation is to the child and the court has "broader" concerns (that pesky constitution and state laws)

How can children be safe in an environment in which the adults caring for them do not have basic civil liberties? How can we say they will be safe when the an anonymous call can lead to a knock at the door and their being carted off without due process? How many more children of innocent families will disappear into this black hole while the public mindlessly nods their heads in agreement to CPS press releases about the constitution being a hinderance to the safety of minors?

The bigger the lie, the more they believe it.

samriver said...

It seems that children have become pawns in a power struggle between a government that wants it dictate every detail of our private lives and the peoples freedom to make their decisions.

Anonymous said...

Wow, what this woman wrote more than a month ago is really news, Scott. Is there any end to your bitterness regarding the Texas ACLU?

beowulf1723 said...

samriver said:

"It seems that children have become pawns in a power struggle between a government that wants it dictate every detail of our private lives and the peoples freedom to make their decisions."

Exactly. Children are literally the next generation. Hence the government "interest" in child welfare above and beyond legitimate concerns for abuse. In Germany, where government sponsored education started, homeschooling is illegal.

I suspect that this is part of the basis for the BS about the YFZ Ranch culture being "abusive", though we now know that they weren't an isolated group without contact with the outside world. In a lot of respects they seem to have been a self-sustaining community with none of the "welfare abuse" that the FLDS has been accused of. Maybe the lack of dependency on the government is the real problem, and not the alleged child abuse or polygamy.

To michael:

I didn't say the ACLU was disgusting, just their lack of a strong statement/presence in this mess. I'm old enough to remember when they supported a neo-Nazi group's right to march through a predominately Jewish suburb in Skokie, IL; a lot of people thought that that was pretty disgusting also.

Gritsforbreakfast said...

To 3:10, the Massachussetts Divorce and Family Law blog wrote yesterday that "With no thanks to the national ACLU, and other suddenly silent, supposed defenders of civil liberties, the Third Court of Appeals in Texas just did the right thing in denouncing the outrageous government raid on the FLDS sect." Is that a recent enough criticism for you?

I'm not bitter regarding the ACLU, but I do think the critique Kaminer made of their statements (which would apply equally to the "applause" they issued this week for the 3rd Court) is valid. I notice you don't dispute any of what was said, except to denigrate my motives for publishing it. Lots of people have asked me since this began, on and off the blog, "Where is the ACLU?"

To Michael, your argument about R judges would imply ACLU should never involve itself in the courts in Texas. It's true they don't win many cases, but based on that assumption they shouldn't employ lawyers at all! Nobody thinks ACLU needed to find ad litems, but they certainly could have done amici like the Liberty Institute did. And as 2:07 said, they could have helped a lot by speaking out to promote their principles as the issue played out in the press. At a minimum that was a missed opportunity.

Anonymous said...

from UNICEF:
http://www.unicef.org/crc/

Convention on the Rights of the Child

snip

The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children's rights by setting standards in health care; education; and legal, civil and social services.

By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children's rights and they have agreed to hold themselves accountable for this commitment before the international community. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child.

.........

http://www.truthdig.com/report/item/20080514_destroying_a_village_of_pedophilia/


Posted on May 14, 2008

By Ellen Goodman

snip

I have heard similar thoughts in the weeks since Texas authorities invaded a ranch in Eldorado and rounded up hundreds of children from the polygamous sect of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Did they traumatize the children in order to protect them? Did they shatter their lives to rescue them?

snip

In the world of the FLDS, “spiritual marriage” between older men and underage girls—what the law defines as rape—is given the stamp of religious approval. Of 53 girls believed to be between 14 and 17, more than 30 have children or are pregnant, including one who gave birth to her second child in custody. Among the boys, too, there is suspicion of widespread physical abuse. Indeed, many teenage boys are routinely banished to preserve the odds of polygamy.

snip

Nobody can prosecute FLDS members for what they believe, says Marci Hamilton, author of “God vs. the Gavel.” “They can stay together and believe what they want into eternity. What they can’t do is illegal action.”

snip

I understand the ambivalence toward this dramatic story. The uprooting of distraught children from pained parents strikes a primal core. And we are aware that many state foster care systems are flawed enough to amount to a second kind of abuse. But surely the call to understand this sect as just another unique corner of multicultural America is relativism run amok.

Individual hearings will begin next week. I hope that the children and mothers will tell the truth rather than follow the admonition to “keep sweet.” I hope mothers will choose their children over obedience to their patriarchs.

But in the end, what we have on that ranch in Eldorado is not a lifestyle. It’s a pedophile ring. If we cannot rescue children from that, we’ve already destroyed their village.

Gritsforbreakfast said...

Oooooh! someone used the words "pedophile ring"! That must mean they have the moral high ground!

It doesn't appear to matter if the facts shown in court don't support the claim. It's fun to say, I suppose, for liberal moralizers, even if it ignores the sentiment by the Third Court that ACLU "applauded," declaring:

"The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system."

By the way, do you know if UNICEF will soon intervene to ensure that these kids can "participate fully in family"?

Anonymous said...

posted by Bill over at Free the FLDS Children blog.

........Texas ACLU folks are coordinating things with TRLA lawyers. Our Texas Legal Director reported to me that ACLU folks are working over the weekend to polish off the brief that the ACLU will be submitting next week to the Texas Supreme Court............

http://www.flds.ws/

See also very important observation posted by Gerl down the page titled: Is the TX Supreme Court Deck Already Stacked Against FLDS?

Anonymous said...

It seems that the ACLU has forgotten that children have the same rights as adults under the U.S. Constitution.

Christoph said...

How does it protect the children to remove them from a loving home and put them into the Texas foster care system base on an out-of-state crank phone call the authorities new or ought to have known was false?

What is so wonderfully secure about the Texas foster care system that 460-odd children had to be removed instantly?

Knowing the dangers of taking children away from homes — including sexual abuse, frequent overmedication, drug use, promiscuous behavior, and teenage pregnancy — why not err on the side of caution and leave them children with the parents while investigating to see if there are specific cases of abuse before acting?

kbp said...

Michael said...
"What was the ACLU supposed to do? "

Mix "SEX" and "CHILD" into a story and many of the "good guys" hesitate and back away.

The best of the best step forward, even if no others will stand beside them.

The ACLU should have came out strong, making their position known to the press, standing up for the rights of all involved. The rights of the innocent children, innocent parents, and even parents that might be guilty.

Anyone can stand up for the rights violated by those that are innocent.

It helps nobody if rights are violated. When it becomes acceptable to violate the rights of those that are guilty, suspects are next in line with the innocent close behind.


As for the Liberty Legal Institute, I had written them a polite email thanking them for stepping up, and followed by pointing out how their "amicus brief" left me believing they agreed that YFZ was a single house.

Mr. Hiram Sasser worte back a somewhat joking response:

"Under state law, if a child in a household is sexually abused, all children in that household may be removed. It is sort of like that Austrian monster that was raping his daughter and keeping her and her children he fathered in the basement. There were three children living happy healthy lives upstairs. Those three were taken with the abused children as well."

I thanked him, saw that he was right on top of the Austrian news, considered that response to have shown me what their train of thoughts on the case were, and lowered my admiration of that organization just a bit.

They're "good guys", but not the best of the best when someone mentions SEX and CHILD in the same sentence.

I've thanked TRLA a few times. We all know what category they're in!



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

Allison Palmer, ADA

Anonymous said...

Childern don't have the same rights as adults. For instance, can children vote? No. Case closed.

kbp said...

error, should read:

It's easy to stand up for the innocent that have had their rights violated.

doran williams said...

KUT-FM in Austin has been running a "blurb" about a KUT produced segment which is to air on NPR starting Tuesday morning. The theme of the program segment is the high rate of teen pregnancy in Texas, which they say is the highest in the nation. Might be worth your time to listen, as it could, conceivably, cast some light, or shadows, which will put the FLDS in Eldorado in some perspective.

KUT-FM is broadcast in Austin at 90.5, and in San Angelo at 90.3 or thereabouts.

The program will probably be available on KUT.Org at the same time it is broadcast.

Pinkycatcher said...

anon at 10:15,

Children follow the same constitution we as Americans do:

"1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

2. The Congress shall have power to enforce this article by appropriate legislation."


still applies to children the same way as it applies to adults. When there is a child at the age of 18 they can vote, same as when there is an adult at the age of 18. That's worded pretty poorly as I am no constitutional scholar, but that's the idea.

Richard Wexler said...

Sadly, there's nothing new about the fact that, when it comes to civil liberties issues in child welfare, the ACLU tends to be AWOL. The founder of my organization, Betty Vorenberg, resigned from the ACLU's National Board over this issue.

I tried to work with the Texas chapter when preparing my group's report on Texas - they weren't interested. And the Texas chapter actually is better than many others, which maintain a blanket silence on the issue.

The ACLU is not alone. The quickest way to get many on the left to forget everything they claim to stand for is to whisper "child abuse" in their ears.

Here's what I often say to my fellow liberals:

Imagine for a moment that, when he was Attorney General, John Ashcroft had proposed anti-terrorism legislation with the following provisions:

Special anti-terrorism police can enter any home and search it without a warrant; in fact, they can do it based on no more than an anonymous tip. (Or they can simply threaten to detain anyone in the household if they are not given permission to enter.) Not only can they search the home, they can stripsearch the occupants or arrange for a doctor to do so.

They can detain any member of the household for anywhere from 24 hours to a week or more before they even see the inside of a courtroom. In fact, detention will probably last for the duration of the proceeding because no judge wants to look "soft on terrorism."

Those arrested under this statute get a lawyer only moments before the first hearing begins – or perhaps only after that hearing already is over, and that lawyer often is too overwhelmed to mount a real defense. Or maybe they get no lawyer at all. To prolong detention the standard of proof is merely “preponderance of the evidence.” And all of the trials and hearings and most of the records are secret. (In Texas the hearings are open, but that's unusual).

Had Ashcroft proposed such a law, it is likely that my fellow liberals would be in an uproar. The ACLU would declare a state of emergency. But what I have just described *is* the current law on child welfare in most states. And it’s largely the left that wants to keep it that way.

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

Anonymous said...

Once you are 18, you are no longer a child. Of course you can vote then.

Fred said...

HOUSE COMMITTEE ON CHILD WELFARE AND FOSTER CARE, SELECT TEXAS HOUSE OF REPRESENTATIVES INTERIM REPORT 2004 (pdf)

TCFR cited a report by Richard Wexler, an authority in the field of child welfare, which stated that national data on child abuse fatalities show that a child is more than twice as likely to die of abuse in foster care as in the general population. In the same report, Wexler also states that in reviewing other states' child protection agencies, the studies that detail abuse in foster care deal only with reported maltreatment. The actual amount of abuse in foster care, according to Wexler, is likely to be far higher, due to the fact that agencies have a special incentive not to investigate such reports, since they are in effect investigating themselves.

Anonymous said...

If white-skinned Religious cultists feel a little snubbed by the so-called ACLU, you ought to try being a gun owner.

doran williams said...

The material referred to by Fred appears on pages 52-54 of the cited House Report. I'm going to excerpt some of it here; the entire Report is worth looking at.

Texas Center for Family Rights

TCFR's main concern with CPS
in regards to substitute care is that they feel that while current law and policy allow parents
to designate a substitute caregiver, in practice, CPS fails to aggressively apply this
principle. As a result, TCFR feels that the State has failed to truly act in the best interests
of children. TCFR testimony revolved around the following points:
Reasons for failure to promote care with a family member or friend:
• Assumption of guilt of parents causes distrust of family members to provide for
safety of children
• Feeling of power and control over child when in CPS custody
• Feeling of power and control over family when child in CPS custody
• Financial incentives to have child in foster care

Reasons for need to promote care with a family member or friend:
• Children need strong stable ties to familiar surroundings, especially in a crisis
• Removal of children from families always causes trauma to the child
• Children are NOT safer in foster care
• Foster care is stranger care
• CPS has failed to act in the best interest of children in its oversight of foster care
both in the State of Texas and nationally
• Perverse financial incentives with regard to federal guidelines color decisions
regarding the best interests of the child
• Judicial independence has been compromised especially with unethical cluster court
set-up
• Avoid class action law suit on behalf of children in Texas

Recommendations for Reform:

• Upon determination by CPS that removal is necessary, a parent or parents may
designate another person to care for the child as an alternative to being cast into the
strange world of foster care.
• The right to direct placement is retained by parent until the court terminates the
parental rights.
• CPS provides a written safety plan to that designated person to properly care for
and protect the child.
• Law enforcement agency assisting in an investigation may conduct a criminal
background check on designated person and any other person in the designated
person’s household. Evidence of past sexual abuse, physical abuse or a serious
felony would disqualify that person from caring for the child.


TCFR quoted the Texas Comptroller's Report of April 2004 which reviewed the many
aspects of the DFPS and the Texas foster care system as a whole. The report notes that
“Federal and state oversight agencies have reported on DFPS’ troubles repeatedly, yet the
problems remain. And simple patches will not fix them....The Comptrollers’ review team
found that the foster care system is failing too many children, from their placement, care
and monitoring to the business processes that support them. The system reflects a legacy
of weak leadership; an atmosphere of helpless acquiescence to the status quo; a
reluctance to look too closely into dark corners; and a culture of self-protection and buckpassing.”

It is TCFR's contention that DFPS' many problems outlined in this report have
caused further harm to children in the foster care system.
TCFR referenced the Supreme Court decision Pierce v. Society of Sisters, 1925 which
states that "the child is not the mere creature of the state" in order to set the foundation for
their recommendations on providing parents with a true decision on directing CPS where to
place their children upon removal. According to the Texas Family Code § 153.001, the
public policy of this State is to: assure that children will have frequent and continuing
contact with parents who have shown the ability to act in the best interest of the child; and
to provide a safe, stable, and nonviolent environment for the child. TCFR listed several
other legal precedents to provide the Committee with a background on the consistency with
their stance on parental directives and public policy, including:83
• Texas Family Code § 153.003 states that a state agency may not adopt rules or
policies or take any other action that violates the fundamental right and duty of a
parent to direct the upbringing of the parent’s child.
• U.S. Supreme Court, Wisconsin v. Yoder, 1972, states that the history and culture
of Western civilization reflect a strong tradition of parental concern for the nurture
and upbringing of their children. This primary role of the parents in the upbringing of
their children is now established beyond debate as an enduring American tradition.
• U.S. Supreme Court, Troxel v. Granville states that the Due Process Clause does
not permit a State to infringe on the fundamental right of parents to make
childrearing decisions simply because a state judge believes a ‘better’ decision
could be made.
• Except as provided in subparagraph (D), reasonable efforts shall be made to
preserve and reunify families (42 U.S.C.A. 671(a)(15)(B)).
• Texas Family Code § 153.002 states that the best interest of the child shall always
be the primary consideration of the court in determining the issues of
conservatorship and possession of and access to the child.
TCFR's basis for portraying the laws and public policy relating to substitute care with
relatives is to note that CPS has not always followed the letter of the law. Their testimony
progressed with the dangers of placing children in the homes of unrelated foster caregivers.
TCFR cited a report by Richard Wexler, an authority in the field of child welfare, which
stated that national data on child abuse fatalities show that a child is more than twice as
likely to die of abuse in foster care as in the general population.

In the same report,
Wexler also states that in reviewing other states' child protection agencies, the studies that
detail abuse in foster care deal only with reported maltreatment. The actual amount of
abuse in foster care, according to Wexler, is likely to be far higher, due to the fact that
agencies have a special incentive not to investigate such reports, since they are in effect
investigating themselves.

TCFR portrayed their concerns about removing children from their families, and provided
the Committee with an abundant amount of research and legal decisions that documented
the strain and stress that removal puts on children. They noted that children’s own families
are the single most powerful agent for ensuring their healthy development. Removing
children from their families for any but the most compelling reasons breaks the critical bond
that children need to develop their basic personal and societal identities TCFR further
noted that children need close relationships with caring adults, however foster children
rarely have the opportunity to form and sustain these close ties.

Citing information from
the National Commission on Children, TCFR noted that placement with relatives is often a
desirable arrangement for children who have been removed from their parents. Placement
with relatives enables children to retain links to their families and may be less stressful than
placement with unfamiliar adults and children.

Based on the aforementioned testimony and research, TCFR listed the following
recommendations for reform in directing CPS to follow parental directive and uphold
parental rights upon allegations of abuse and removal of children:
• Upon determination by CPS that removal is necessary, a parent or parents may
designate another person to care for the child as an alternative to being cast into
foster care.
• The right to direct placement is retained by the parent(s) until the court terminates
the parental rights.
TCFR also listed safeguards to the State:
• CPS provides a written safety plan to that designated person to properly care for
and protect the child.
• Law enforcement agency assisting in an investigation may conduct a criminal
background check on designated person and any other person in the designated
person’s household.
o Evidence of past sexual abuse, physical abuse or a serious felony would
disqualify that person from caring for the child
TCFR believes that if the State follows their recommendations, the following outcomes will
be accomplished:
• For the child: there will be less trauma, the recommendations will prevent foster
care abuse, ensure greater safety, and provide stability with familiar surroundings.
• For the parents and their parental rights: there will be confidence about their
children's placements, confidence in the foster care system, less resulting job stress,
and less long-term devastation.
• For CPS: TCFR recommendations will keep CPS abiding by the spirit of the law,
help them overcome perverse financial incentives and have a reduced case load,
and provide them with the ability to concentrate on true abuse cases

Anonymous said...

Love your blog. It is the best blog in America concerning the lack of human rights and rule of law in the USA. It concerns me that I see a militarization of America's police and agencies under the present leadership. Texas in particular. If it were not for the Texas radio host Alex Jones, a real Patriot, Texas would be lost already. I have this radio recording on right now-
http://prisonplanet.tv/audio/091204hilton.htm

kbp said...

Lawyers cry foul

Allegations of errors
In papers filed in court and in interviews for this story, lawyers for
the children and parents have complained that the state (primarily
through CPS, but also through law enforcement and the courts) has made
a number of legal errors including:

•Insufficient investigation of the initial tip and tipster.

•Insufficient investigation at the ranch about who was in immediate
danger.

•Treating the entire compound as one household, though there were 19
separate residences.

•Taking all children instead of just the post-pubescent girls who
could have been subjected to the feared sexual abuse by older men.

•Insufficient evidence presented at the first hearing for the
children.

•The hearing should have been for each individual child, not all in
one hearing.

•Shifting burden of proof to parents to prove innocence, rather than
having CPS prove guilt.

Amy Warr, an Austin appellate specialist who is working on a response
to the state's request to the Supreme Court, said she got involved in
the case because of how badly the state has handled it.


FYI
Amy is on the TRLA team.

Anonymous said...

Mr. Richard Wexler, it's good to see you posting on this blog. I don't know you, but I know of your organization and applaud your efforts.

I wish that one simple phrase could be struck from the laws books immediately or replaced with something more quantitative. That phrase is "best interest of the child". The phrase is ambiguous, qualitative, and fraught with peril. Legislature should strive, when rendering laws, to remove as much ambiguity from the language of their intent as possible. It is this single phrase that is both used as a sword to thrust in offense, and a shield to raise in defense. Unfortunately, these verbal weapons are seldom used with respect to the children themselves, but instead are used by the authorities wielding them to justify their harsh and often cruel actions against the children.

I recognize that the State may have an interest in the child, but that interest is often counter to the interest of the child. As such, it should be denoted as a "State's interest in the child". The child's Best interests, if codified at all, should only be determined by that child's parent(s). Likewise, Judges presiding over such cases should have "no interest" at all, to avoid the parallax that once they have established a "best interest, it is often exactly the same as the "State's interest, thus making them a party to the case against the child and their parents.

With such one sided laws, it is not a wonder that States and their Courts believe they can do anything they want, regardless of other legal definitions and statutes intended to prevent such actions. Once they raise the "Best Interests of the child shield, all opposition to such tyranny slink away, or silently observe (ACLU).

kbp said...

Fred or Doran

Is it like the House or Senate Committees do a fair job of looking into the problems, outlining ways to help prevent them, and providing their recomendations, then...

Pass it down to the Head of a department, who looks it over, says it's a concern they'll address, and then...

Hands it off to the a committee within the department to review, point out their objectives and re-write portions to better suit the applications within the department, and then...

They shuffle it off to division heads within their department to review what adjustments to their guidelines and policies need to made to better comply with the recommendations, who then...

Assign the meanest bitch in-house to re-write the guidelines and policies to reflect the outcome of the process so far. So she does a Word Replace to the new material so that every "shall", must"... reads "should", "may"... and then...

In the field the workers stretch the rule changes by tweaking their reports about what went on, and then...

The courts stretch it a bit further to go along with the practices of that departments workers, so in the end the department can hold a press conference where...

They announce the problems are solved, it's proof all is on the up & up and they're ready to save all the Sarahs in the state?

A good policy for attorneys that handle child cases would be to read up on and have a source that has case law and strategies available which apply to most situations they may face in court.

kbp said...

I should have added that the courts will find any errors in following the rules were certainly made in "good faith", they were just too busy trying to save the Sarahs.

Anonymous said...

06:26:00, if the government raided homes like in this case to take away guns, I think the ACLU would fight, as they are going to in this case. While it is true the ACLU hasn't taken a strong stance in support of gun ownership, neither has it fought to take guns away.

chartelle said...

ACLU is an organization that only selectively gets involved in those cases where abuses of civil liberties occur, and/or constitutional rights are trampled. If the case involves seeking to expel any form of religion they will be there to help. Protection of religious freedom? No. They say they are very sensitive to any possible abuses of children...yet they are all for trying to put the boy scouts out of business for refusing to allow homosexuals to participate in any leadership position (scout master). A camping trip where that scout master might be able to crawl into a sleeping bag with a young boy is fine with them. Having hundreds of children and babies torn away from their parents due primarily to religious bias and bigotry - rather than reasonable cause to do - and they will not care. Same sex marriages? They will be there to help. Any government response (local or otherwise)to enforce our immigration laws will be opposed by the ACLU.

It is interesting that a few days before the 3rd Court of Appeals opinion was handed down, the ACLU was outraged when it was disclosed that about 500 minors - who had either been involved in setting IEDs, or captured as combatants - were being held as detainees in Afganistan at Bagram jail...issued the following statement:"ACLU states the lack of protections and considerations for the juvenile status of detainees violates the obligations of the US under the optional protocol on the involvement of children in armed conflict that the US ratified in 2002,as well as universally accepted norms.

This was issued jointly with the International Justice Network (a front group?) that added: "Executive Director said, it comes as a shock that even young children are being held without due process...there does not appear to be any legitimate purpose for holding those children without access to their families"(detaining children trying to kill our military...no,no,no. Detaining FLDS
children...go right ahead)Can you begin to discern the real purpose of ACLU?

kbp said...

Brooke does a good summary of the recent events in this mess.

kbp said...

UPDATE

Brooke's article includes;
"***Scott Henson,*** who writes a blog on Texas criminal justice, said it came from a notably conservative court's "conservative wing.""

Thanks Scott

*******

Some recognition for Richard Wexler also.

*******

We all went directly to the sources here!!

Anonymous said...

Anonymous said...It seems that the ACLU has forgotten that children have the same rights as adults under the U.S. Constitution.

Anonymous said...Childern don't have the same rights as adults. For instance, can children vote? No. Case closed.


Yeah they do have the sane rights as adults..Where does it say that children DON'T have the same rights as adults? The U.S. Constitution applies to children on the following:

The First Amendment: Freedom of speech

The Fourth Amendment: Unreasonable Searches and Seizures

The Fifth Amendment: Self-incrimination Clause

The Sixth Amendment: Right to Counsel Clause

Case closed!

kbp said...

"The Sixth Amendment: Right to Counsel Clause

Case closed!"


Those that enforce Family Codes evidently see that one differently.

I'm not up well on the rights a child has, but it seems to be a mix of certain rights the child has combined with rights their parents hold for them.

Of the cases that I've read up on that touched on this topic I must admit were at times confusing. I often see problems mentioned of children interrogated without a parent present, but have never dug deep enough to determine if that is a violation of rights. If it is, it would show the parent holds the right of the child, not the child itself.

It is a topic I would like to see someone professionally qualified on let us know what case laws have provided to determine when and what rights a child has.

Maybe Mr. Wexler can touch on this topic some?

kbp said...

Will signing abuse papers come back to haunt FLDS?

lowery.shirley said...

It seems that government can do as it wishes with our children. And, with the Patriot Act, government can do as it wishes with adults. Is this how freedom works?

Anonymous said...

lowery.shirley said...
It seems that government can do as it wishes with our children. And, with the Patriot Act, government can do as it wishes with adults. Is this how freedom works?


No, this is how apathy works, and freedom fails.

Richard Wexler said...

Anonymous writes:

"I wish that one simple phrase could be struck from the laws books immediately or replaced with something more quantitative. That phrase is "best interest of the child". The phrase is ambiguous, qualitative, and fraught with peril..."

I don't know that there is a quantitative alternative, but there is a good qualitative one. Most NCCPR reports on state systems, including our report on Texas, end with this recommendation:

In all places where it appears, the phrase “best interests of the child” should be replaced with the phrase “least detrimental alter-native.”
Currently, almost all state laws involving custody of children are liberally sprinkled with the phrase “best interests of the child.”
But that is a phrase filled with hubris. It says we are wise enough always to know what is best and capable always of acting on what we know. In fact, those are dangerous assumptions that can lead us to try to fix what isn’t broken or make worse what is.
More than thirty years ago, Albert Solnit, Joseph Goldstein, and Anna Freud, proposed an alternative phrase. They said “best interests of the child” should be re-placed with “least detrimental alterna-tive.”
“Least detrimental alternative” is a humble phrase. It recognizes that whenever we intervene in family life we do harm. Sometimes we must intervene anyway, because intervening is less harmful than not intervening. But whenever we step in, harm is done.
The phrase “least detrimental alter-native” is a constant reminder that we must always balance the harm that we may think a family is doing against the harm of intervening. It is exactly the shot of humility that every child welfare system needs.

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

kbp said...

CP$
How can the CP$ increase the pace of spending money that exceeds budget restrictions without spending hire more employees to help manage and increase excess spending?

OH MY! The problems they're facing!


(Blogger is having some sort of Sign In problem?)

beowulf1723 said...

I think I said this before in response to another post, but it needs repeating.

This is one of the major problems: children have no real rights or responsibilities as an adult, but he may be charged as an adult if suspected of a crime.

Here in Austin an 11 year old was charged with capital murder in connection with the death of an infant left in her care. She got off on a technicality. Why weren't the parents charged with neglect for leaving the infant in the care of someone who couldn't care for her properly? You'd have to ask the DA that.

(Scott, do you have any posts on this charlie-foxtrot of Earle's?)

doran williams said...

kbp:

All too often the issue is not what rights does a child have, but instead is -- does a child have the capacity to waive those rights?

If a 12 year old girl is arrested for a criminal offense, she has the right to remain silent and to have an attorney present during questioning. Almost all law enforcement people I've ever encountered in defending juveniles recognize these rights and are careful to explain them to arrested juveniles.

Those same law enforcement people will then be nice to the kid, and ask questions, and pretty soon the kid will give an incriminating statement.

When the kid's attorney objects to the State's use of the statement, on the grounds that the kid at that age does not have the capacity to make a knowing waiver of the right to be silent, or to have an attorney present, the presiding judge will ALWAYS (unless the kid is obviously retarded) over-rule the objection and make a finding that the kid did make a knowing waiver. One of our judges did that in one of my cases where I asked the juvenile if she knew what "waive" meant in the context of waiving her right to be silent. After an extended period of silence, she held up her hand and waved at me.

On the other hand, the State of Texas instructs us that a sexually active girl who is 16 years and 11 months old does not have the capacity to consent to sex with a boy or man, as a matter of law.

It is such inconsistencies as this which should instruct us all that there is little, if any, rationality in much of our law. Our statutes are all too frequently the result of the collective biases, ignorance, stupidity and venality of our legislators. This is best seen in the context of juvenile law and child sex abuse statutes where, as demonstrated above, a 16 year old is assumed not to have the capacity to screw with someone, while a 12 year old is assumed to have the capacity to screw herself by making an unwise statement.

beowulf1723 said...

Ben Sargent's cartoon in today's (25 May 08) Austin American-Statesman is spot-on. (I don't have a direct link; go to the A A-S site, and click on the drawing of Sargent to go to the cartoon.)

Pinkycatcher said...

CPS workers are paying for their own expenses at the moment

kbp said...

Pinky

They have to spend their own money until the CPS can hire more help to spend excessively over budget at a faster pace.

All to $ave $arah!


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

Allison Palmer, ADA

kbp said...

State officials faced culture of lies, religious experts say

Could that be what started this?

It was just plain and simple, a LIARS challenge for the CPS, and NOBODY has ever beat them at their own game!

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

David said...

Grits,

Speaking of saying "pedophile" to get the moral high ground, Sen. Dan Patrick has been saying that on the airwaves since this thing started. He had the idiot McCown on his radio show shortly after the raid, repeating every wild eyed rumor out there.

This past Friday, he actually said, on air, that this could be a child pornography ring; otherwise, how could they afford to pay $400,000 a year in property taxes. It was in the time frame between 5:10 and 5:25 on 5/23/08.

I was shocked.

beowulf1723 said...

RE: the DMN article mentioned by kbp at 0401PM:

Religious leaders? What religious leaders? None were named in the article. Let's see some names and bone fides in that subject.

A persecuted minority lying to authorities? This is new? I guess the authors never herd of the Marranos.

Next thing you know the DMN will run some variant of the infamous "Wanted Poster" from the 22Nov63 issue.

kbp said...

Beowulf1723

As my post reflects, all I got from it was humor.

It was balanced fill in I guess.

beowulf1723 said...

Kbp:

The DMN article would be funny if the possible consequences weren't so grim.

dmarks said...

That's the ACLU for you. Sometimes it fights against Constitutional rights (in its involvements in frivolous suits to censor individuals' speech at times when the speech is religious.... very anti-First Amendment) and sometimes it ignores Constitutional rights (such as that pesky 2nd Amendment). In other matters, such as affirmative-action cases, the ACLU sides with those who want the government to punish people for having the wrong skin color (without any sort of due process or consideration for civil liberties). For a good example of that, see California's Civil Rights Initiative fight, in which the ACLU strongly argued for the government to treat people differently solely on the basis of skin color. Thankfully, the racists lost that fight.

So it is no surprise they are silent on YFZ. The so-called "civil liberties watchdog" sometimes chews on the very Constitution, and other times sleeps while burglars come and pillage the house.

The right-wing groups similar to the ACLU are no better, also opposing civil liberties at times (like the ACLU does) or pointedly ignoring assaults on them (like the ACLU does). I've given up looking for an actual "civil liberties watchdog" that consistently protects Constitutional rights, due process, freedom of speech, politically-incorrect parts of the Constitution (such as the Second Amendment) and is not so politically biased.

kbp said...

While looking over the Texas Appleseed, a non-profit that "promotes social and economic justice for all Texans", I came upon a PDF report addressing foster care issues in 2007.


That report tells how care is controlled by state AND federal guidelines, in which the process works to seek permanent custody after the 12 month time span the child is in the system (in custody I believe).


The federal goals, which states follow somewhat by submitting some sort of plans that show they abide by the goals (qualify for federal money), is more directed at resolving PERMANENT custody than reuniting families.

With that in mind, I recall the Texas CPS plans revealed to us their goal was some time sooner than 12 months. IIRC, it was September of this year (correct me if I'm wrong here!).

One has to wonder if the CPS / court's instructions to sign OUR plans and we'll work out the individual details later(!) is some sort of rush to produce failure for all that do not follow these "plans".

It was reported that not all the attorneys trusted the CPS enough to advise their clients (parents) to sign those "plans".

Pinkycatcher said...

dmarks,

Though if you look at the right, the only civil liberties group that has the caliber (no pun intended) the resources, and the man power to go toe to toe with the ACLU, is the NRA, and that is solely a one issue group. Lot's of the lesser groups (I'm sure anyone can rattle off a couple) really don't have the resources for something this big, they can only really go on an individual case with their help.

The only civil liberties group that can put enough pressure on this whole case is the ACLU.

On another note, have you read the ACLU's intrepretation of the second amendment? It makes no sense what so ever. I hate second amendment state's rights advocates. I'm overall for state's rights, but the second amendment doesn't say that.

lowery.shirley said...

"With that in mind, I recall the Texas CPS plans revealed to us their goal was some time sooner than 12 months. IIRC, it was September of this year (correct me if I'm wrong here!)."

The 1st mother who had a hearing has a possible reunification date of Sept. 2009. I could be wrong as well but their written plan doesn't mean squat if it isn't being followed.
I have also been watching that 12 month timeline. I see that as a date when the state gains more power. My heart sinks when I see a resolution put off until a date after that first anniversary.

Fred said...

An interesting analysis of the law at the BeldarBlog.

Lucille said...

One group that comes to mind is the HSLDA - these families aren't HSLDA members, mind, but the potential precedents of this case could be of interest to them. I would be interest in hearing what they have to say.

kbp said...

Fred

I'll be the devil's advocate here!!!

The point made at Beldar is one I've mentioned quite a few times in a discussion elsewhere.

Beldar mentions what 262.201 requires; "danger to the physical health or safety of the child". Then Beldar goes on to comment on 161.001, and how "emotional well being" can be a factor considered in permanent custody.

Beldar really says little about what and why SCOT would or would not reverse the 3rd, not anything we have not already seen.

Justice Harriet O'Neill is BIG, BIG into child care topics from what I'm finding. I believe it would be very easy for her, or any of the justices, to look at 262.201 and say "safety of the child" was a separate issue from the "physical health" when the legislature worded the code. I'd guess she'll want oral to get her remarks into the records.

It could then be claimed to show that "emotion" is certainly a "safety" issue the legislature had considered. They did not identify any situations specifically that fall under "safety", so we need to look further into what they do consider to be of concern within other areas of the Family Code.

My search of "emotion[al]" in Family Code pulled up 30 hits in a google. I did not count how many times it was written on the pages it hit on. That certainly opens the door to say "emotion" is a "safety" factor that the legislature had in their minds when they passed the code.

Why would it be grounds to take permanent custody and then be disallowed as a concern for a child's safety in any other situation? While one could argue the inclusion of emotion within the permanent hearing area is so that it is not overlooked or ignored, the criteria for temporary custody should be less stringent than permanent.

Melanie said...

Here's an interesting question I saw posed on one of the comment sections on some article (I think at GoSanAngelo):

If the writ of mandamus stands up, how does that affect the state in regards to the physical examinations they did on a lot of the kids? If it stands up that the state had no right to take those children, then they equally had no right to make them submit to full, private physical exams. I'm thinking they could really be culpable there.