Tuesday, April 14, 2009

Bill targeting FLDS larded with unintended consequences


The Lege will revisit the Great Eldorado Polygamist Roundup this morning, the Austin Statesman reports:

The House Human Services Committee will meet at 10:30 a.m. in E2.016 to look at how the state handled last year’s child-welfare operation at a West Texas ranch owned by a polygamist sect. The Statesman’s Corrie MacLaggan wrote yesterday on the Postcards blog, “Testimony is expected from people invited by the panel, including Anne Heiligenstein, commissioner of the Department of Family and Protective Services; Willie Jessop, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints; Scott McCown, executive director of the Center for Public Policy Priorities; and Kevin Dietz of Texas RioGrande Legal Aid, which represented some of the FLDS mothers. Jessop said he plans to tell lawmakers that he takes issue with Heiligenstein’s recent public comments about how she did not think the state made any mistakes in the case and that her agency would respond swiftly to any future abuse allegations.”

MacLaggan also reported, “he human services committee is also scheduled to consider a proposal by state Rep. Harvey Hilderbran, R-Kerrville, that would clarify when Child Protective Services should remove suspected perpetrators — rather than children — from a home. The proposal, a response to the FLDS case, seeks to allow a suspected perpetrator of child abuse or neglect to be removed from the home only if there is evidence that the parent who would remain at home would monitor the residence and report any attempt by the accused to return. It would also enhance criminal penalties for failing to report abuse or neglect. There is a similar measure in the Senate by Jane Nelson, R-Flower Mound. Meanwhile, a Senate panel is considering a separate measure by Nelson that would extend the statute of limitations for bigamy.”

See a discussion of Sen. Nelson's legislation here, the text of which is included in Hildebran's bill en toto.

The invited list of speakers at the Eldorado hearing seems disappointingly slanted, but not nearly as much as Rep. Hildebran's bill, for which an interested reader forwarded me a copy of the committee substitute, calling it " a Christmas Tree of mischief."

The most egregious section of the bill IMO - certainly the most mischevious - would insensibly boost the penalty for parents whose kids play hooky from school from a Class C to a Class A misdemeanor, with a second offense garnering a third degree felony charge.

Talk about unintended consequences! That won't just affect the FLDS but potentially myriad homeschoolers and many thousands of parents struggling to enforce discipline on rebellious youth. Given Texas' high dropout rates, this bill seems likely to fill the jails needlessly with parents who aren't criminals but are simply unable to force their child to go to schools they don't find relevant, useful or engaging. The bill also boosts penalties for students' non-attendance from a C to a B misdemeanor.

This is no solution to any problem that arose in the Great Eldorado Polygamist Roundup. Instead, it uses that event as an excuse for jacking up penalties for petty offenses that, in past generations, wouldn't even be considered a crime.

Similarly, nothing about this case indicates that increasing penalties for failure to report child abuse would have helped resolve the problem, but the bill boosts penalties for that crime, too. Of course, most all the allegations of abuse by Texas CPS turned out to be entirely unsubstantiated - from the initial hoax phone call that launched the raid to repeated overstatements by the agency claiming hundreds of children were abused. So if there was little if any abuse documented, there's scarce reason to think there was some widespread failure to report it.

The bill also eliminates a requirement that CPS - when seizing children without a court order - make "reasonable efforts ... with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home." Under Hildebran's proposed language, "the court may find that based on the circumstances no reasonable efforts would prevent or eliminate the need to remove a child and that the department satisfied the requirements ... even though the department made no efforts to prevent or eliminate the need to remove a child." That essentially guts the requirement that CPS make a good faith effort to keep families together.

Another section of the bill disallows parents from accompanying a seized child, but given how the FLDS kids were treated while in the state's care, this case actually argues for the opposite policy. It was unnecessary and terribly traumatic to take those young kids away from their Moms after storming their home with hundreds of armed men and forcibly removing them based on a hoax phone call. This was only a problem because of the volume and that was a mistake by the state, not something kids or their moms should be punished for.

Hildebran's bill is a laundry list of solutions looking for a problem. But the real problems with the Great Eldorado Polygamist Roundup all involved state overreach, not any deficiency in state authority. The bill boosts penalties for families - as though low penalties were somehow a barrier to achieving state enforcement goals in Eldorado (they weren't) - but does nothing to restrict CPS and in fact further empowers them to override familial rights. This is a bad bill, and a pointless one.

LIVEBLOGGING THE HEARING: I just got home from testifying at the Lege this afternoon and turned on the Health and Human Services Committee hearing (see here) just in time to hear Department of Family and Protective Services Commissioner Anne Heiligenstein say, "Given the extraordinary circumstance, I don't believe the action taken [seizing more than 400 kids] was imprudent." But Chairman Patrick Rose (a former campaign client of mine in a past life) pressed her to reconcile that defense with the Supreme Court's ruling against the actions, insisting she say whether they would do the same thing again if it happened again. She finally acquiesced that the agency would "follow the guidance of the court" in the future and evaluate each case on an individual basis. It seemed like a grudging acknowledgment.

Rose pointed out that Heiligenstein continued to define the term "household" as "the entire compound," which even she admitted "was a bit of a stretch." I'm glad the chairman picked up on that - that mis-definition was a key source of mischief in its own right throughout this fiasco.

Contradicting Heiligenstein, who claimed deceit by FLDS parents was the main reason youth couldn't be treated on a case by case basis, Kevin Dietz of Texas RioGrande Legal Aid said he was not aware that any of his clients had been accused of misrepresenting to CPS whose children were whose. He said it was clear from their first client interview that his clients all had individualized interests, backgrounds and legal issues, and that a key mistake by the department was to treat them as a group instead of as individuals. "It's just bad practice to have removed so many children based on so little evidence," he said. All but one of this FLDS children have now been returned to their parents.

Willie Jessop said there is a suppression hearing tomorrow where more information will likely come out about the hoax phone call from Rozita Swinton that set off this fiasco.

Patrick Rose asked Jessop point blank: Did you tolerate the marriage of underage girls to adult men on your ranch. Jessop wouldn't answer. "I don't live at the ranch," he said. He said he could speculate, but he didn't know. Are there underage marriages in your church, he retorted, and if so should we roundup all the children in every family in the congregation (not a quote, but the gist)? It was an unsatisfying answer to a straightforward question; it seems pretty clear there have been at least a handful of documented cases (several of which have resulted in indictments), though some of those marriages occurred outside Texas many years ago. Rose pointedly said he would respect Jessop more if he just refused to answer the question than if he claimed he did not know. Jessop replied it would be "inappropriate to speculate." "I don't believe that you don't know," Rose concluded.

Jessop did reasonably well but was a little raw, and there were a couple of questions (particularly from Rose) that he couldn't successfully dodge, though I thought he partly rehabilitated his position before he was done by emphasizing the lack of due process and the Kafka-esque position of being asked to account for people who didn't exist based on allegations that turned out to be a hoax.

Former district Judge Scott McCown said, somewhat to my surprise, said he thought no changes were needed to the Texas Family Code in light of the incident. The Family Code, he said, "is not a barrier to removing some of these kids." Maybe it's just his tone, but it seems like McCown's stance has softened somewhat since last year when he was more gung ho. "We can't look to CPS to deal with the issue of underage marriage in the FLDS community," he said. Only "vigorous criminal law enforcement" could solve the problem and CPS doesn't do that. He also said it's a question of whether the Lege would "pony up the money" to investigate and prosecute the statutes on the books.

Rep. Darby tried to get McCown to endorse Hildebran's enhancement bill (to which he's signed on as joint author), questioning whether we care enough to pay "whatever it takes" to prosecute these cases. McCown replied that Texas shouldn't pass new criminal penalties pretending that's what will solve the problem when we know in our hearts that what's really needed is a $10 million appropriation to DPS for enforcement.

Susan Hays, a college pal of mine, testified about her experience as an ad litem for a 2-year old FLDS child and conferring with other attorneys about an array of clients with all sorts of different circumstances. The state made a great mistake, she said, by not knowing a lot more about who they were dealing with. She also said that the "sins of the leadership" shouldn't be visited on the churches congregants and especially the children.

Hays said that the state made a mistake by thinking this was a parallel to the Branch Davidian catastrophe, when really the better parallel was the 1953 raid on the FLDS at Short Creek, Utah, a subject discussed here on Grits last year. "It's their Alamo," she said, and Texas just replicated the scenario for a new generation. "You've got small children who're going to grow up bragging to their grandkids that they were part of the Eldorado raid," she said, adding that Texas' approach reinforced the group's insularity and needlessly traumatized the kids.

Susan said it's true it was hard to tell who was telling the truth throughout the episode, but that CPS' "refusal to communicate with" ad litems was at least as big a source of obfuscation as FLDS-generated confusion about parentage. Ad litems can't represent their clients, she told the committee, if CPS won't tell them why they think their clients have been abused.

The hearing will continue on into the evening but I've got to cook dinner. Go here for the livestream video.

MORE (4/15): Here's the archived broadcast of the hearing.

See MSM coverage (4/15):


123txpublicdefender123 said...

Any idea on the chances of either of these bills getting anywhere? I'm glad, at least, that they have invited the representative from TRLA to testify. He can talk about the horrible abuses by CPS.

Gritsforbreakfast said...

We might have a better idea about that after today's hearing.

Anonymous said...

I am wondering how this will affect Home schoolers, as the article states. My kids find a better education through my wife and I than any public school in Texas. Is this an attempt to criminalize a stated right?

Anonymous said...

Power corrupts absolutely. The children of Texas might be safer if the whole agency was dissolved and NOTHING done.

Anonymous said...

I hope that people recognize that even with the language in Hildebrand's bill, a male child in the El Dorado ranch would not and could not have been found to be in "immediate danger."

This bill is still vague on this, but the Gates ruling seems more clear with regard to considering the special circumstances in the family. E.g. in the case of El Dorado, if it appears only teenage girls at the most were in "immediate danger" (still a stretch especially for those not yet married and no evidence of imminent FLDS marriage), any other children outside this category were not and could not be removed.

Jam Inn said...

Grits,"...hundreds of armed men"?

What on earth are you talking about?
The majority of LE on April 3, 2008 were off the ranch and held in reserve and numbered in the dozens and not hundreds? What numbered in the hundreds was the hidden ranch population, which was only exposed because of the attempted CPS Removal, otherwise the tactic of moving 550+ covert residents onto the YFZ Ranch would never have been known or exposed.

You have no proof that the hotline phone call was a hoax and make reference to it like it affirms your baseless assertion that the CPS Removal was unwarranted, even though it has lead directly to 12 Grand Jury indictments. If this was such an unwarranted 'fishing expedition', can you explain why so many indictments resulted from the search warrants? Shouldn't there be little to no charges brought, to give breath to ypur position?

Anonymous said...

@ Jam Inn

MOO MOO the cattle call is sounding, head off little one.

Jam Inn said...

Lose the Truth
There is NO HOAX caller
There are hundreds of residents
"Dirty Dozen" will be convicted!

123txpublicdefender123 said...

Jam Inn, you really do lose all credibility when you insist that the initial caller was not a hoax. It's plainly clear that it was. Here's some "proof" for you: http://www.deseretnews.com/article/1,5143,705289354,00.html

Or, maybe that's you, "Sarah"?

Jam Inn said...

Taxed123 There is no proof, so no charges were/are brought or maybe you prescribe to a conspiracy theory. I guess the forlorn hope is riding on overturning the search warrants, after all the records are so incriminating, they might, as well, go states witness and hope for a lesser charge.

123txpublicdefender123 said...

No, I don't "prescribe" to a conspiracy theory. It has been clearly shown, however, that the call was made by this mentally ill woman who has a documented history (including a criminal conviction and other pending charges) of making false reports to the police, including in cases involving FLDS. So, please, give it up.

I make no judgment on the merit of the criminal charges. Grand jury indictments mean nothing. If they plead guilty, or once I see the evidence that is presented in open court, then I can say how I feel about those. It is entirely possible that those charged are guilty. That doesn't change the fact that the initial call was 100% false, and the CPS workers fell for it, hook, line, and sinker, without bothering to check it out at all. A simple trace of the call to someone in a completely different state would have let them know it was bunk.

WC said...

There needs to be stiffer penalties for unsubstantiated calls and false accusations. Having penalties for not reporting abuse makes the likelihood that this will happen again greater. These lawmakers are true idiots.

123txpublicdefender123 said...

I agree with stiff punishments for people who intentionally make false reports. I don't think it would have had any effect on this woman, though, who seems really messed up in the head. Wasn't there some indication a while back, too, that Carolyn Jessop (the most public ex-FLDSer critic) was somehow involved with this woman or was that just gossip?

I have to say that I am pleased that they made that holier than thou woman who heads the agency take back her "we made no mistakes, and, if it happened again, we'd do exactly the same thing" nonsense that she spouted at her press conference. Really? Nothing wrong. A state appeals court and the state supreme court said that you broke the law when you removed those children without sufficient cause. The last time I checked, state agents breaking state law (I'm not alleging they acted criminally here, but they did violate the law) was doing something wrong. It's actually contemptuous of the court to say what she did, and truly unbefitting of the head of a government agency who is bound by the rulings of the state supreme court.

Anonymous said...

A good model for how to handle situations like the FLDS case referenced is the way the Callahan Co. Prosecutor's Office is in the process of ending years of abuse inside the House of Yahweh.

Jam Inn said...

Taxed123 you shouldn't believe everything you read and the Texas Rangers interest in your supposed caller is never going to result in any charges. Seems you have made a bad connection or tend to blame people with criminal history? How is it you can support a church whose Leader is incarcerated. No, there hasn't been any proof just circumstances and that's not factual evidence to base a charge. You seem to have skipped the trial and claim guilt, haven't you jumped to conclusion?

Don said...

Jam Inn: are you smoking anything unusual?

Unknown said...

Hazzbinns, is that you? Eerily similar arguments, writing style, and determination not to hear or process facts you don't like or don't fit your preconceived ideas...

Jam Inn said...

Lucille who are you? I don't know anyone who posts here by that name.
If facts are eery things to you then I guess that accusations, circumstantial evidence, unproven facts and baseless conjecture are preferred by you as acceptable and fair. Sorry, to read that you prefer darkness to light.

I am unfamiliar with anyone who posts as 'Lucille', touche`.

TxBluesMan said...

WC and TPD123 both agree that there should be be tougher penalties for making false reports.

Does this mean all false reports or just those that are politically correct false reports?

Unknown said...

Sorry if I'm wrong. You just sound a lot like the person I mentioned.

If facts are eery thingsHeh. What "facts" might you be referring to?

Would it be your insubstantiated claim that "There is NO HOAX caller", perhaps? (And since you think "there is no hoax caller", are you claiming the calls were real?)

Or maybe you're referring to your similarly unsubstantiated claims that "There is no proof, so no charges were/are brought", and "the Texas Rangers interest in your supposed caller is never going to result in any charges."

Neither of those are "facts", either, just speculation and guesses on your part.

So just what are those "facts" that I find "eery" [sic]?

Michael said...

Grits, with due respect, the most egregious section of 4255 is the addition of new section 161.001(c), which would allow CPS to remove children from a home WITHOUT a court order and WITHOUT showing that it made reasonable efforts to avoid the removal.

Gritsforbreakfast said...

Good point, Michael. I thought about that later upon re-reading this post and the comments, and you may be right. At the least, both provisions are offensively, almost comically bad public policy on several levels.

Anonymous said...

Of course if it passes, then Texas may find itself ineligible for federal aid. The federal aid statute requires they provide service before removal whenever reasonable, without that provision Texas is ineligible to receive the aid.