Bill targeting FLDS larded with unintended consequences

UPDATED

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):

• San Angelo Standard Times: Live from the FLDS hearing in Austin
• Dallas News: DFPS: Biggest mistake in polygamist raid was not separating mothers from children
• Dallas News: Polygamist ranch spokesman tells legislators he doesn't know if underage girls forced to marry
• Daily Texan: Bill proposes harsher penalties for child abuse
• Austin Statesman: FLDS Home: Ranch or compound?
• Austin Statesman: Sect members get an earful
• CBS-42: FLDS spokesman tells committee what he thinks went wrong
• AP: State agency defends actions at polygamist ranch
• Texas Observer: 'Lessons learned' after polygamous ranch raid