Priorities, CPS reform and crime

This blog focuses on the criminal-justice system itself and Grits spends little time on other, related areas of government whose failures contribute to crime and hopelessness. There are those who think the ultimate solution to criminality is education, for example, but for want of bandwidth, that must remain someone else's beat.

The crisis at Child Protective Services, however, has reached such a scale that, if not rectified, it will likely result in a crime bump as the cohort ages who were abandoned by the state's penny pinching bureaucracy when they needed help most. The Fort Worth Star-Telegram editorial board this week offered up this observation:

Texas Tribune investigated one of the more dire aspects of the state’s crumbling child welfare system — victims of sex trafficking. 

One report estimates about 313,000 Texans are victims of human trafficking, about 80,000 of them minor and youth victims of sex trafficking. About 78,000 of those victims had some contact with the child welfare system, says the University of Texas at Austin study. 

The Tribune investigation illustrated how the child welfare system fails some children, allowing them to become prey to sex traffickers. It laid out pertinent and reasonable solutions legislators should consider for fixing this atrocious cycle of crime and abuse.
The solutions rightfully focus on victim rehabilitation, decriminalization and prevention, something sorely missing from the state’s current strategy to stop sex trafficking. 

Officials focus on arresting pimps, reasoning if there aren’t any sex traffickers, then children won’t fall prey. 

This logic might sound reasonable, but it misses a major point. The state Child Protective Services agency is so damaged and unsafe that kids are slipping through the cracks to find better living options. 

No child should ever be in the position that a pimp is the most appealing option for housing and food.

The justice system should be the last resort by which society deals with frightened, abandoned kids from broken homes. Instead, according to these reports, some of them consider prostitution a better option than the ones the state has given them.

My tough on crime friends, let's see you get tough on that situation. Because if you don't, more and more of those kids will end up in your adult jails and prisons down the line. And they're going to be angry. This is a more important security spending priority for Texas than anything DPS is paying to do with its "surge" money down on the border.

Read more here: http://www.star-telegram.com/opinion/editorials/article134139659.html#storylink=cpy

Falsely accused by CPS

One "goes with the job" aspect of working with the Innocence Project of Texas is that, when you tell people you work on "innocence" issues, there is a certain proportion of the public who will begin to tell you about their CPS case. This story from Andrea Ball at the Austin Statesman ("Overturned child abuse rulings point to problems, advocates say," May 24) puts some data to the phenomenon:

Each year, the state overturns more than 1 out of 3 decisions challenged by people who CPS says have abused or neglected a child. Of the 1,146 cases appealed in 2013, 42 percent were reversed, up from 27 percent in 2009. By the time such rulings are overturned, however, they may already have had profound effects. CPS decisions are used in criminal and civil court cases. They can bar people from becoming foster parents. And, as in Hall’s case, they can play into custody disputes.

The 42 percent rate of reversal surprised and alarmed child advocates.

“I think it’s positive for me to see that CPS is actually admitting to wrongdoing and correcting it,” said Johana Scot, executive director of the Parent Guidance Center. “On the other hand, it’s a very scary statistic. That means there are probably a lot of wrongful substantiations, which is scary to me because it’s very harmful to the children and families.” ...

Child Protective Services investigates 160,000 neglect and abuse cases in Texas each year. Investigators confirm the allegations in about 40,000 of those cases.  ...

Fewer than 3 percent of the 40,000 confirmed abuse cases — the only type eligible for CPS review — are appealed each year.

Extrapolating roughly from these data - between 27 and 42 percent of appeals being overturned, assuming no one was falsely accused who didn't appeal - that conservatively puts the number of people falsely accused by CPS in Texas at between 300 and 500 per year. No data in the story to indicate what proportion may have caught criminal cases as part of that process, but I bet it's not insignificant. This is an agency not known for subtlety in its overreach.

Just a few hundred people per year from every corner of the state falsely accused by the government of harming their children. Nothing could go dodgy in that scenario, could it?

'The Recanters': False convictions more likely as law strays further from biblical standard

One frequently hears Christians lament how far society has strayed from biblical teachings, and it's true. In many cases that's a good thing, as one needn't look far to find abhorrent examples like the murdering of homosexuals or non-virgin brides. But there are elements of biblical law whose wisdom still rings true and I've always thought that, among them, is the notion that convictions for crimes should only be sustained upon the testimony of "two or three witnesses." In both the Old and New Testament, corroboration of an accusation was seen as essential to justifying punishment.

In the modern era, though, there are increasingly many situations where mere accusation by one individual is enough to convict, even (in fact, especially) when that individual is a child. At The Texas Observer, Maurice Chammah has a story that highlights the conundrum created by uncorroborated accusations titled, "The Recanters: What happens when abuse claims come undone." The main protagonist in Chammah's featured  horror story says she was "bullied her into accusing her stepfather" by a social worker at age eight during a three-and-a-half hour interview. Her testimony on the stand contradicted itself and included incredible, unlikely accusations, like her stepfather bathing her vagina with a washcloth filled with broken glass. After his conviction, she was shipped off to foster care; the state thought her mother unfit because she refused to believe her husband was guilty. Ironically, she told Chammah, in foster care she really was molested by a foster parent in Killeen. Whether or not the stepfather was guilty - and both he and the alleged victim insist he was not - it seems impossible to argue the state's intervention benefited the child.

Wrote Chammah, "Advocates for the wrongfully convicted and advocates for child victims both understand the difficulties of child witnesses. They agree that their memories are more malleable than an adult’s. Both see that problem as evidence that their side is losing." The Texas Legislature, for its part, keeps amending the law to make it easier to secure convictions in such cases without corroboration:

Earlier this year, Republican state Sen. Joan Huffman passed Senate Bill 12, which will allow prosecutors to introduce evidence against child-sex assault defendants of prior offenses, including accusations by other children. “Very often it’s hard for jurors to believe the testimony of a small child, especially when there is no physical evidence,” Huffman, a former Houston prosecutor and judge, told me. Often, so much time has passed before the child comes forward that any physical evidence has washed away or healed over.

Kristin Etter of the Texas Criminal Defense Lawyers Association told lawmakers that the bill “will lead to more wrongful convictions.”

Both concerns are legitimate. I agree that child molestation cases - especially accusations of long-ago abuse with no physical evidence - are difficult to prosecute. I also agree that changing the law to reduce the amount of evidence against a defendant necessary to convict is likely to send more innocent people in prison. Texas' many DNA exonerations in sex assault cases show that even uncorroborated adult testimony can lead to false convictions.

Which brings me back to the "two or three witnesses" standard promulgated in Mosaic law and repeated in the New Testament by both Christ and the Apostle Paul. There is real wisdom in that requirement. As stories of "the recanters" remind us, accusations are not proof.

RELATED: See earlier Grits coverage of Huffman's bill here and here.

Why don't Fourth Amendment standards apply to CPS in Great Eldorado Polygamist Roundup?

Photo: Scott Sommerdorf, The Salt Lake Tribune

With its decision last week to approve the admission of evidence from the Great Eldorado Polygamist Roundup in criminal court, the Texas Third Court of Appeals basically said that law enforcement didn't need to justify its initial search warrant because the Department of Family Protective Services went separately onto the YFZ Ranch to round up all the juveniles and haul them away in buses for interrogation about possible abuse, garnering information that independently justified the second of two controversial warrants. In other words, they're claiming law enforcement can get around the Fourth Amendment if they use child protective services as a stalking horse.

A friend of the blog who's a family lawyer, however, as well as an ad litem for one of the FLDS children's cases, can't understand why the court didn't then go into the applicable law on whether DFPS had any right to be there, a subject on which a 2008 Fifth Circuit case decided months after the raid, Gates v. Texas DFPS (pdf), should be controlling. According to that case, "it is well established in this circuit that the Fourth Amendment regulates social workers’ civil investigations," and "Therefore, we will apply the typical Fourth Amendment standards in assessing the defendants’ conduct." So the same standard applies unless there are "exigent circumstances," defined in Gates as meaning, "based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his home." (The agency issued new policies in the wake of the Gates ruling reflecting that language.)

Was the standard for exigent circumstances met? The same Third Court of Appeals already ruled it wasn't - even by more lax, pre-Gates standards - and that Judge Barbara Walther, the same judge who issued the search warrants in question, abused her discretion in approving DFPS' seizure of FLDS kids. The same standards apply for searches as seizures, which is why Grits had earlier posed the question, "If CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?"

The Third Court of Appeals ruled such evidence could come in, but only by creating a sort of phony Chinese Wall to analyze the criminal search warrants separately, ignoring their earlier decision on the civil side that the judge had abused her discretion. I'm not an attorney, but given the reasoning in its own mandamus order (pdf), as applied via the Gates opinion, I fail to understand how, if there was no exigent circumstance to justify warrantless seizure of the children, information thus obtained in violation of the Fourth Amendment could then be used to facilitate the April 6 warrant? The latest Third Court opinion addresses that conundrum by simply ignoring it.

Reading the governing Fifth Circuit opinion makes me think it even more likely that, unless the Court of Criminal Appeals surprises me and favors litigants with a Gates-compliant ruling, the issues surrounding the YFZ Ranch search warrants may be ultimately decided in federal court. Gates reminds us that "Regardless of what Texas law may authorize, entry into a house by the [state] must satisfy Fourth Amendment standards." And case law, said the Fifth Circuit, "does not support lowering the Fourth Amendment standard for entering houses for the purpose of interviewing children about possible abuse."

The convenient failure to prosecute instigator of Great Eldorado Polygamist Roundup

A reader helpfully forwards an article from Colorado Springs about Rozita Swinton, the hoax phone caller whose claims to be an abused polygamist bride launched the Great Eldorado Polygamist Roundup. You may recall Swinton's false claims resulted in what courts later said was the improper seizure by authorities of more than 400 children from the YFZ Ranch in Eldorado, claiming their parents had all abused them.

Swinton has lately been convicted in Colorado of essentially similar charges, but oddly enough nobody in Texas seems interested in prosecuting her or even really finding out her story regarding the phone calls leading up to the YFZ Ranch raid. According to her lawyer,

to his knowledge, his client is not facing any criminal charges in Texas.

“I believe the phone call in Texas resulted in the prosecution of some people who were sexually assaulting young women,” ... “If anyone felt that Ms. Swinton was involved in that, that’s a good thing.”

Texas authorities, however, said they are still looking into Swinton’s role in the case.

“Our inquiry into Rozita Swinton and other aspects of this case is ongoing,” said Jerry Strickland, spokesman for the Texas Attorney General.

To repeat what I wrote last year, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that were to happen, I suspect it would reveal improprieties by authorities that would invalidate the search warrant used to get onto the property. I continue to believe officials were looking for any excuse to launch such a raid and knew or should have known at the time they went in that the call was a likely hoax.

The only other reason I can think of for failing to charge Swinton would be if prosecutors simply agree with her lawyer that the end justifies the means and that all the kids CPS illegally seized were acceptable collateral consequences that should be overlooked in deference to the larger goal of driving the YFZ Ranch residents out of Schleicher County. If that's the case, perhaps the Attorney General should just publish a list of unpopular victims - polygamists, illegal immigrants, Wiccans, or whoever - against whom crimes will be tolerated in Texas, just so we can all get on the same page.

CPS raid on Houston's underage moms would dwarf Great Eldorado Polygamist Roundup

Here are a few disparate items to chew on this morning:

Get ready for the CPS raid on Houston
Last year Texas' CPS accompanied by dozens of armed police raided the YFZ Ranch and seized more than 400 children on the sole basis that some of the children had allegedly been married and impregnated as young as 14 (a practice that was legal in Texas with parental consent until 2005). Much to-do was made about how the mere presence of underage pregnant kids necessitated a full-blown military response and mass-seizure of every child within arms-reach. How much more justified, then, would the state be to raid the City of Houston, which leads the nation in the number of pregnancies under age 15? And just as happened at Eldorado, shouldn't the state seize everyone else's kids, too, because they live in a community that tolerates such behavior? If that approach was good enough in the Great Eldorado Polygamist Roundup, after all ...

No Mas! Sheriffs fear immigration enforcement too much to handle
Some Texas border sheriffs are balking at suggestions by the federal Department of Homeland Security that they take on immigration enforcement duties. The Cameron County Sheriff said “There’s not enough jail space to support it.”

Tagged: Offenses added to criminal records with no conviction
Several bloggers have pointed out this Wall Street Journal piece about Texas' new law, promoted vigorously at the Lege by Dallas District Attorney Craig Watkins, tagging in criminal records offenders whose DNA was identified in old rape cases even if the statute of limitations has run out and they couldn't be prosecuted. While this novel concept raises some due process concerns, in practice it can be expected to apply in only a small number of cases.

Kicking a judge out of the club (No, not Sharon Keller)
Reacting to the indictment of a sitting Republican judge in Houston because of "unwelcome sexual advances" to a defendant and the Houston DA's search for additional witnesses, Mark Bennett asks, "Want Revenge? Gain? Attention? Be a Witness!." I guess Don Jackson must not be part of The DA's "Judges Club" that Murray Newman wrote about.

Send 'em straight home
Over the next year TDCJ must begin releasing offenders either from the unit where they served or through regional release facilities instead of siphoning everyone back through Huntsville, reports the Austin Statesman's Mike Ward, who quoted state Sen. John Whitmire declaring, "It's been nuts to take prisoners from 112 units and haul them all the way back to Huntsville from El Paso, then let them out and buy them a bus ticket back to El Paso. This change represents a huge step forward. There's no reason for that long ride back to Huntsville to continue." TDCJ officials say the policy will likely be implemented sooner than later.

Search policies on laptops at the border
CrimProf blog rounds up links on new US policies for searching laptops at border crossings, noting that "The Ninth Circuit has ruled that the constitution does not preclude warrantless and suspicionless searches of laptop computers at the border." ACLU has called for policies limiting laptop searches to cases with "individualized suspicion." At present, though, according to this DOJ press release, only a small number of travelers are searched: "Between Oct. 1, 2008, and Aug. 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed in these instances—of those, just 46 were in-depth."

SCOTUS CrimLaw summary in 5 pages
Via White Collar Crime Prof Blog, see this excellent summary from BNA (pdf) of US Supreme Court decisions from the last term dealing with criminal law. Bottom line: It's easier for the state to pursue RICO charges. Requiring cross-examination of forensics will create not-insurmountable headaches in about 2/3 of states (though not Texas). SCOTUS hates the exclusionary rule, or at least five of them do (especially the Chief Justice). Sloppy police databases are fine when they result in illegal searches: Accidents happen! Similarly, supervisors are immune from civil suits if they fail to train prosecutors under them about their Brady obligations to disclose exculpatory evidence to the defense.

Governor Perry's 2009 Criminal Justice Vetoes

Governor Perry announced this year's vetoes yesterday, although, since so much criminal justice reform legislation died in the waning days of the session thanks to partisan bickering over voter ID, not many bills that concerned this blog were even available to earn the Governor's wrath. Several of the vetoes I agreed with, while, as always, some seemed inexplicable even in the face of the Governor's written explanations.

Here are the criminal justice-related bills Governor Perry vetoed (links on the bill numbers go to Perry's veto statements):

Bad CPS bill goes down
SB 1440 by Watson/Madden is the bill discussed here and here that would have expanded CPS authority to seize kids for questioning without first notifying their parents or showing "good cause." (UPDATE: More from the Lone Star Times, which notes that "Perry had received 17,373 calls and letters against the measure and 455 supporting it.") However, those who fought the bill have some work to do in the interim to influence how similar legislation may look next session. In his veto statement, Perry concluded:

I am directing DFPS, through its parental advisory committee, to study the effect of the Gates decision on the ability of the department to appropriately enter a residence and, if necessary for the protection of the child, to transport the child for interviews in a neutral location. I am also directing DFPS, through its parental advisory committee, to develop and recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families.

No tinkering with parole mechanics
SB 1206 by Hinojosa/Edwards would have authorized TDCJ to release inmates when they'd completed conditions for parole specified by the Board of Pardons and Paroles. Perry vetoed the bill because he said it usurped the authority of the BPP. However, he put the onus for getting offenders out the door more quickly back on the parole board, declaring in the veto statement:

But because I appreciate the goal of Senate Bill No. 1206 to not hold inmates longer than necessary, I am directing the Board and TDCJ to work together to ensure that offenders are not held for extended periods after successfully completing a rehabilitation program required by the Board as a condition for parole. They must set up procedures that provide for TDCJ to notify the Board of the successful completion of parole release requirements so that the Board may act to effect the release to parole.

If you're that 'vulnerable,' stay the hell off the road
SB 488 by Ellis/Harper-Brown would have creaed a new category called "vulnerable road users," basically defined as everybody not in a car, and punish drivers for getting too close to them. Perry vetoed it, rightly noting that plenty of protections are already in place. (UPDATE: See the Statesman for quotes from proponents criticizing the veto.) I agree the state has a responsibility to make cycling and pedestrians safer, but IMO that's best done through investments in infrastructure and engineering, not the endless creation of new traffic offenses.

Couples Only: Pardon authority bill needed companion resolution
SB 223 by West/Thompson would have authorized the Governor to give pardons in cases involving deferred adjudication. This was vetoed not because the Governor did not want the new power, but because a required constitutional amendment that needed to accompany the legislation did not pass because of the voter ID meltdown.

Perry: Failure to snitch on barratry shouldn't be criminal
SB 3515 by Dunnam/Carona would have created a new criminal offense specific to attorneys of failure to report barratry by other lawyers. Perry vetoed the bill because "would criminally punish a lawyer who had not committed barratry for the barratry committed by another person, and would, therefore, make a lawyer not engaged in criminal conduct subject to criminal penalties because of the criminal conduct of others."

Where's the 'swap' in land swap bill?
HB 3202 by Bonnen/Jackson transferring ownership of 332 acres owned by TDCJ to Brazoria County. In a surprise move that took the bill sponsors offguard, Perry vetoed the bill "because it does not require the payment of fair market value for the land, does not exchange land for other real property and does not involve land that a local government had donated to the state for construction of a prison. In fact, House Bill No. 3202 transfers land that has been held by the state since 1918 to a county without providing any compensation to the state for the loss of the land."

No loan assistance for prison staff
HB 518 by Kolkhorst/Van de Putte would have provided student loan assistance to correctional officers attending Sam Houston State. Perry said they shouldn't be specifically targeted and instead "the state should focus on fully funding the four main programs to make financial aid available to more students." So the state's chronically 3,000 guards short-staffed but the Lege declined to increase pay to market rates and the Governor vetoed the only substantive increase to prison staff benefits? Geez! Message to TDCJ staff: "Lump it and like it."

No leeway, however modest, on sex offender registration
HB 3148 by Smith/West would have allowed those convicted of indecency with a child for an offense committed when they were under 21 in "Romeo and Juliet" type cases to petition the court to keep them off the state sex offender registry. While acknowledging that this might happen only under "very limited circumstances," that a judge would still have to sign off, and that "other provisions of the criminal code provide some protections against very young victims being re-victimized," Perry vetoed the bill anyway, declaring, " I am not willing to take that gamble with the lives of young Texans."

UPDATE:

Early education also a veto victim
Governor Perry also vetoed the early education package discussed here on Grits among his line item budget vetoes (see the full budget proclamation [pdf]). According to the Houston Chronicle:

The governor’s veto of a $25 million pre-K expansion program startled supporters, including Rep. Mike Villarreal, D-San Antonio, co-author.

“I’m saddened and astonished,” he said.

Perry said $25 million appropriated for the program should be used to expand the number of students served by the existing pre-K grant program.

Madden expects veto of bad CPS bill

According to an action alert from the Free Market Foundation urging Governor Perry to veto SB 1440 expanding CPS powers, one of the bill's co-sponsors, Jerry Madden, now think last-minute amendments were a "mistake" and he expects Governor Perry to veto the legislation. I hope he's right. All the Governor's vetoes must be announced by Sunday.

RELATED:

• Conservative veto call for expanded CPS powers growing louder
• Bad CPS bill deserves a good veto

Conservative veto call for expanded CPS powers growing louder

The outcry is growing against last minute amendments to SB 1440 expanding CPS authority to act without "good cause," the Fort Worth Star Telegram reported yesterday ("Groups urging Perry to veto bill that would increase CPS' power") in a story that incidentally quoted this Grits post on the topic. According to the Startlegram:

A coalition of conservative and libertarian groups is urging Gov. Rick Perry to veto a bill that would make it easier for Child Protective Services to remove children from a home while investigating possible abuse.

Groups including the Republican Liberty Caucus of Texas, the Texas Home School Foundation and the Free Market Foundation have called on supporters to contact Perry’s office and request that he veto Senate Bill 1440.

At issue is an amendment addressing instances when a parent refuses to let a CPS worker inside to investigate an abuse or neglect allegation.

If the bill became law, a judge would be able to grant CPS a court order similar to a criminal search warrant, allowing a CPS worker to immediately enter the home and, if necessary, remove the child and secure medical and mental-health records as part of an investigation. It would be done without notifying the parent in advance.

"It seems like we’re throwing the Fourth Amendment under the bus," said Tim Lambert, president of the Texas Home School Coalition. "It completely undermines parental rights."

Our pal David Jennings over at the Lone Star Times dubbed SB 1440 the "Take Away Your Child Act." A staunch conservative and GOP activist, Jennings declared in the LST comment section, "I really hope he vetoes it. If he doesn’t, I’m not sure what I’ll do for the primary."

Are you listening, Governor Perry? These are your primary voters talking.

Click here to email or find a phone number for the Governor to request he veto SB 1440.

Bad CPS bill deserves a good veto

Jerri Lynn Ward alerts me to a bad amendment approved in the legislative session's waning hours heaping new authority on CPS to allow them to undertake child seizures and interrogations without first notifying parents. The Parent Guidance Center issued this press release calling for a gubernatorial veto. See discussions from Tim Lambert of the Texas Home School Coalition and the blog The Travis Monitor. According to Lambert:

the bill was substituted in committee for a very different SB 1064, which was passed out of the Senate and sent to the House. The new SB 1064 gave the court authority to force parents to give CPS access to the child and/or transport the child for "interview, examination and investigation," without a court hearing or notice to the parent. Worst of all, the language in the current statute that requires CPS to prove "good cause shown" was stricken. Thus this bill would allow CPS, during an investigation in which the parents would not waive their 4th amendment rights, entrance into their home, access to medical or mental health records of their children or transportation of the child, on the simple filing of an affidavit by a CPS worker with no hearing or opportunity for the parents or their legal counsel to present their case.

The bill language allows CPS to access records without parental consent or a court hearing and lets them transport a child for questioning based only on an affidavit (without a hearing or a finding of "good cause") if the parents won't consent. Parents must be notified afterward as soon as practicable, but I don't see why it's not "practicable" to notify them beforehand.

This is clearly an overreaction to the fiasco surrounding the Great Eldorado Polygamist Roundup, and an unnecessary one. I'm disappointed in Rep. Patrick Rose and Sen. Kirk Watson for carrying this piece of junk. Ward, Lambert and other conservatives are calling on the Governor to veto SB 1440 and I'd have to agree the bill deserves an ignominious demise.

Follow this link to tell the Governor your opinion.

CPPP: Foster kids face more school discipline

It's not particularly shocking that abused and neglected kids in foster care are more likely to be disciplined in school (and thus more likely to wind up in the juvenile justice system), but according to a new policy paper (pdf) by the Center for Public Policy Priorities, "31 percent of all [Texas] students in foster care received at least one discipline action versus 17 percent of the general student population."

Foster kids are nearly twice as likely to be disciplined as average students, says the group, and they're significantly more likely to receive an out-of-school suspension for misbehavior compared to their peers. Among youth who received discipline, foster kids were half again as likely to engage in "serious/persistent misconduct."

CPPP suggests that, as the kids' managing conservator, the Department of Family and Protective Services may not be doing enough for to assess foster kids' fairly predictable support needs. "Getting more students in foster care who have emotional problems eligible for special education services will not only get them the support they need to do better in school," the paper suggests, "it should improve discipline outcomes as well."

See more in the policy paper (pdf) from CPPP (or as I call them, the Center for too many Ps) on the Texas school disciplinary system and foster care children, including a good overview of the disciplinary process facing Texas youth along the way toward the juvenile justice system.

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
  

Will Lege revisit Family Code after the Great Eldorado Polygamist Roundup?

This post from Kurt Schulzke over at Contraries (formerly I Perceive) questions whether the Texas Family Code may allow authorities to too easily remove children without cause, as happened in the Great Eldorado Polygamist Roundup.

The fact that appellate courts threw out most of those cases might lead one to think the law was fairly plain, but instead it was state agency actors and local jurists who engaged in such sweeping overreach. Maybe so. But there were many problematic aspects to that absurdist incident and the courts only ruled against CPS on one of them. It's still troublesome that CPS would even think they could take so many kids without the slenderest reed of specific evidence about their families, all based on what turned out to be a hoax phone call.

Part of me would like to suggest that the Family Code deserves revision in light of the Great Eldorado Polygamist Roundup, but the politics surrounding that case were a complete zoo and in truth, I have no idea how the Texas Legislature would deal with that case if asked to consider what happened. State Rep. Harvey Hildebran was a key instigator in pushing state action against the West Texas polygamists, and it wouldn't surprise me (though it would disappoint me) if the Lege endorsed a bill that made it easier to engage in religious-based persecution of families.

For that reason, maybe it's better to let sleeping dogs lie - to be thankful the appellate courts rose above gross politicization in this case and avoid seeking any legislative remedies.

RELATED: See this news story about use of the same tactics deployed against FLDS being used against non-polygamous citizens in an abusive fashion.

Why no prosecution of false child abuse report in the Great Eldorado Polygamist Roundup?

A former supervisor with Texas Child Protective Services (CPS) was fired from the agency in May and now has been indicted for "making a false report of abuse," the Corpus Christi Caller Times reports, which leads me to ponder why we haven't seen similar charges lodged against Rozita Swinton, the prank phone caller whose false accusations of abuse launched the Great Eldorado Polygamist Roundup in West Texas last spring?

Why have they waited so long to pursue criminal charges against a hoaxter whose actions gave CPS (not to mention the legal system in San Angelo) an enormous black eye? Was what this woman allegedly did any worse than Swinton's offense?

We still haven't learned, by a longshot, the complete backstory to what happened during the days and hours leading up to the YFZ Ranch raid, and I'm betting a desire by authorities to keep it that way lies at the root of the failure by officialdom to extradite Swinton from Colorado and hold her accountable for reports that were clearly as false as any made by this supervisor.

CPS Chief Abandons Ship; 14-day hearing transcrips from Polygamist Roundup now online

In the wake of the botched Great Eldorado Polygamist Roundup, the head of Texas Department of Family and Protective Services, Cary Cockerell, has announced he would retire at the end of the summer. Some legislative committee needs to hold a hearing before he leaves and get Mr. Cockerell on the record about what went wrong with the YFZ Ranch raid.

Meanwhile, the blogger at I Perceive has posted the transcripts from the 14-day hearings for YFZ Ranch kids, see here and here.

Indeed, I Perceive has been keeping much closer track of the case than I have in recent weeks, and those tracking the story should check there regularly. And as always, The Common Room continues to follow the story closely.

YFZ kids headed home

The news surrounding the Great Eldorado Polygamist Roundup is still churning fast and furious. Here are the most recent highlights:

First things first, Judge Walther signed the release order allowing most kids to go home. The blogger at I Perceive examines the release order and suggests that FLDS' attorneys may be the ones suffering from "Stockholm Syndrome."

Still bristling from her highly public bench slapping by the appellate courts, Judge Walther then convened a grand jury yesterday which issued 18 indictments, all of which so far remain sealed. No way to tell how many, if any, are related to the YFZ Ranch.

If they actually pursue charges, we'll soon find out whether Judge Walther's interpretation that the 1,700 acre ranch is a single "household" gets overturned or if the original search warrant holds up. Since the Third Court of Appeals already shot down her "one household" interpretation in the child custody cases, I personally doubt it will hold up on the criminal side, either.

Meanwhile, see this must-read story from the Deseret News in which state Rep. Harvey Hildebran described how he changed Texas' law specifically hoping to drive FLDS out of the state.

Also, an FLDS official says the group will henceforth abide by marriage age laws in whatever jurisdiction it operates.

In Canada, events in Texas have inspired the British Colombia Attorney General to appoint a special prosecutor to investigate FLDS members there. Actually pursuing charges, though, has proved difficult.

In a thematically related story, at The Mex Files we find a terrific discussion of polygamous Mormonism in Mexico, including connections between such groups and the country's most famous polygamist, Pancho Villa.

See more recent coverage from The Common Room.

MSM offers excuses for how they got YFZ raid so wrong

Even if Judge Barbara Walther remains recalcitrant, many defenders of Texas' actions in the Great Eldorado Polygamist Roundup are jumping ship as it's become obvious the state's case is preparing to crash upon the rocks. Others are making excuses to explain why they were wrong.

To be sure, some are still defending the YFZ Raid, like Bill McKenzie at the Dallas News who inexplicably promotes false and dated statistics that CPS already admitted were incorrect weeks ago. He continues to claim we "know" girls under 16 were impregnated at the YFZ Ranch, when in fact all such claims have been debunked. No one but him (and, alas, readers who believe the Dallas News) think it's true. As I advised McKenzie in the comments:

The YFZ Ranch is only 4 years old. Claiming the Bishop's record shows a 27 year old got pregnant at age 14 (probably in Arizona, if accurate) does NOT demonstrate any underage girls got pregnant at the ranch. KBP's count is accurate - 5 alleged underage Moms were identified [by CPS] in court. That's it. The number was whittled down to two when one turned out not to be pregnant and two more turned out to be in their 20s.

We're still battling the effects of CPS' successful public relations campaign against FLDS group, including but not limited to their claims that:

• 60% of teen girls were pregnant or mothers: To get that number, CPS included 26 adult women who denied they were minors and turned out to be telling the truth, but not until after the agency repeatedly called them liars in the press.
• 10% of kids had broken bones in the past: It turned out they didn't really know how many had broken bones, and anyway 10% would be less than the average for kids in the outside world.
• Male children were molested, although CPS never provided evidence in court for the assertion and dropped the allegation after it made media headlines.

And those are just the lowlights. This disinformation campaign is why I cannot agree with Houston Chronicle columnist Rick Casey who writes, "CPS should and will follow the law. But it's not as though they willfully broke it."

I think they did. I think they knew the whole ranch shouldn't be considered a single "household." I think they knew the group's religious beliefs didn't meet the legal definition of abuse. Certainly they knew claims that 60% of teen girls were mothers were false at the time they made them (the agency added the caveat two days after the headlines ran to say most of those girls claimed to be adults, which turned out to be correct).

If CPS was acting in good faith, why were we subjected to a constant stream of misinformation? That's the part I don't understand. Certainly that behavior significantly colored my own reaction to the raid and its aftermath; once I become convinced you didn't tell me the truth, I start to doublecheck your statements, and CPS' never held up under scrutiny. At the end of the day, the courts found the same thing.

Also in the Houston Chronicle today, reporter Janet Eliot offers up some revisionist history to develop the storyline that CPS was an innocent victim in this case as opposed to the lead victimizer. She blames the agency's "rigid professional compass," of all things, for the massive rights violation it has undertaken - not the phrase I'd have chosen.

Eliot quotes UT law prof Jack Sampson declaring, "one could, in retrospect, say it was too ham-handed. They should have been more nuanced." Speaking for myself, I was criticizing the raid for precisely these reasons from the get-go, so I see little merit in Sampson's claim that the flaws could only be observed "in retrospect." (E.g., on April 9 I suggested on Grits the raid "may be a setup job.") CPS was obviously overreaching at the time it undertook this endeavor, and this was discernible from publicly available information.

AP's Michelle Roberts has a similar retrospective today with the title, "Was polygamist raid doomed from the start?" She qutoes a DPS official declaring, "We had no choice but to treat those calls as credible. If we had not treated them as credible and something bad happened, people would be very upset." That's true, of course, but it sure doesn't explain why authorities waited five days to check out the story. What went on during those five days remains the murkiest and perhaps most probative remaining untold part of the narrative.

Eliot and Roberts' narratives, of course, not only exoneate CPS but the media who gave the agency a megaphone to promote its ill-fated PR campaign. "The initial cracks in the legal case came in late April," Eliot writes, "at the 14-day adversary hearing." But that's not correct. The raid was questionable and questioned from day one. In particular, the search warrant affidavit Judge Walther approved relied on her "ranch as one household" interpretation the appellate courts just shot down.

By claiming no one could have known there were problems with the case, the media exonerates itself for not having done a better job reporting. Similar motives IMO explain why Casey and Eliot continue to hold open the possibility the original phone call from "Sarah" may not be fake. The Salt Lake Tribune figured out the hoax almost immediately (Brooke Adams first came across evidence of this on April 4) but Texas papers still maintain the fiction "Sara" might be real, probably because they'd otherwise be subject to legitimate criticism for not accurately reporting the story.

Maybe FLDS just drew a really bad judge: Walther spitefully delays sending YFZ kids home

Is San Angelo District Judge Barbara Walther the worst judge in Texas?

There are many jurists competing for that lowly dishonor, but I'm beginning to wonder if Walther's name shouldn't be placed on the short list for discussion. After her petulant display in the courtroom yesterday, it's increasingly clear the judge has taken rebukes by higher courts personally and begun to behave like a pouting 9-year old. Here's how the San Angelo paper described yesterday's events:

A proposed order, which seemingly was approved by CPS and attorneys representing the families, was introduced at the beginning of the hearing that states the department would begin returning the children at 8 a.m. Monday.

The proposal also stipulated the parents would undergo parent counseling and cooperate with the ongoing investigation, and that the parents wouldn't leave the state, at least until Aug. 31.

Technically the order was for just the mothers in the original appeal, but the implications were for all children, Walther said.

Walther took a break and countered with a proposal that put more restrictions on travel and other stipulations.

Her proposal gave the same time frame for releasing the children. However, it also said that if children were to travel more than 60 miles from their designated residence, the CPS must be given at least 48 hours' notice.

It also said case workers should have access to the ranch at "any and all times necessary to the investigators."

As well, it states case workers could interview and examine the children, which could include medical, psychological or psychiatric examinations.

Lawyers for sect members objected to the new proposal, saying it wasn't what they had originally agreed to, and that the court has no authority to impose those stipulations because there is no evidence those sect members broke any laws.

Walther countered that the Texas Supreme Court ruled that the court can put conditions on reunification to keep the children safe.

The Supreme Court ruling seemed to indicate Walther has some latitude to order parents to refrain from removing their children "beyond a geographical area identified by the court" while a thorough investigation continues.

Lawyers argued it does not give her the authority to allow some of the conditions she put in her version of the proposed agreement.

Walther eventually ruled that if each parent signed the agreed-upon ruling, then the court would sign it as well. ...

Laura Shockley, an attorney representing a mother and several children, said attorneys are usually allowed to sign such orders for their clients.

"The effect is that all children will be unlawfully detained for at least 48 hours and probably more," she said.

Andrea Sloan, an attorney who represents several disputed minors, said many mothers are scattered across the state near their children, and reaching them so they can sign the order will put a further strain on attorneys and the families.

Still, she said she is confident in the court system of Texas to get the children home.
Jessop was incensed that Walther didn't sign the order and wanted clarification.

"The judge left the court in total disarray," Jessop said. "There is no way to know when relief will be here to fix what happened on April 3. It's total confusion."

So bottom line, Walther demanded MORE restrictions on families than CPS had agreed to, injecting herself as a party in the dispute rather than an arbitrator. After hours of wrangling, the judge backed off her demand that FLDS parents agree to extra stipulations, but insisted that each FLDS mother sign the agreement instead of their attorneys, just to inconvenience them and make their lives more difficult. Then she stormed out without explanation, leaving attorneys to guess what she meant.

That said, by all accounts, before her abrupt exit, Walthers backed off on the extra requirements and consented to sign the agreement between CPS and parents if they all put their signatures on it. While FLDS could take this to the 3rd Court, their interests might be better served simply by hustling everybody back home and getting them to sign the damned document. If the Judge flip flops again, there's plenty of time to appeal to the 3rd Court. I'd guess that, at this point, the subsequent bench slap wouldn't be long in coming.

There's no justification I can see for Walther's ill-tempered departure nor the arbitrary delay it created - at least none except spite and mean-spiritedness. It's as though she doesn't realize that her actions are playing out on an international stage, that she's in danger of having her name transformed into a verb, like Duke lacrosse prosecutor Mike Nifong, where people whose children have been seized without cause have been "Walthered."

With yesterday's decidedly un-judicial display, Judge Walther disgraced her robes and embarrassed her constituents. Her actions displayed the same brand of disrespect for the law and parents' rights - in the 3rd Court's words, the same "abuse" of her "discretion" - that caused her earlier rulings to get shot down

Judge Walther deserves a lion's share of blame for everything that's gone wrong during this fiasco.

For the sake of accuracy ...

The Texas Department of Protective and Family Services has adopted a new motto on its logo. However, given the agency's behavior during the Great Eldorado Polygamist Roundup, the new slogan seemed both cliched and inaccurate, so I took a stab at improving it for them:

Whaddya think?

Also why do readers think that conservative bloggers tend to oppose the Great Eldorado Polygamist Roundup, while liberal bloggers seem more likely to support it?

Next steps, remaining questions in Great Eldorado Polygamist Roundup

Wow! The Texas Supreme Court's ruling that the Great Eldorado Polygamist Roundup was unjustified dramatically changes the terms of debate regarding the largest child removal case in US history.

Let's ponder a few implications of this ruling for the near and long term.

For starters, of course, the ruling means FLDS kids should be allowed to go home soon. It will be telling to see, though, if the court and CPS act with the same alacrity and disdain for detail with which they first seized the kids. My guess is that we'll see a bit more legal wrangling before that happens, mostly because of language in the opinion cited by an anonymous commenter in the last post, who added this spot-on observation, citing the next to last paragraph in the SCOTX ruling which states:

"While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR proceedings.”

Essentially, the SC puts the ball back into district judge Walthers’ court —to do as she pleases ordering ‘other appropriate relief to protect the children’ in the way of SAPCR orders (court orders on custody/parentage, etc.) And, especially, the Supreme Court particularly traps those mothers who ‘concede’–’admit’–likely being those who signed the coerced CPS ‘Plans’ – admitting they were abusive by clauses contained therein.

The best positive from the SC’s decision is it nearly forces Walthers to deal with each family individually. However, the bad news is the SC turned the whole ‘vacate the order’ over to Walthers, again,—but, qualifying that by telling her she can use other ‘appropriate protective’ measures.

That seems likely to me, which would mean there's a lot more lawyering yet to come. By all accounts Judge Walthers has behaved defiantly in the wake of the Third Court's ruling, hoping to justify her decisions instead of accepting that they were wrong. I don't expect that to change soon.

But there's another implication to this development that I find amusing and ironic. Texas CPS argued to the Supreme Court that the main reasons they couldn't return kids to their families were that they couldn't identify their parentage (despite the fact that they'd matched kids to parents in court and they didn't bother matching kids with parents when they seized them), and that if CPS released the kids, their families constituted a flight risk.

As a result, FLDS women's attorneys argued that the court had authority to use less punitive means to restrict families from leaving the jurisdiction, and the Supremes agreed; that's what gives Judge Walther the extra leverage mentioned above.

However, for the locals like Sheriff Doran and Judge Walther, IMO the real purpose of the raid was never to investigate child abuse but to run the YFZ Ranch residents flat out of the region. (This goal has frequently been openly discussed, including suggestions that the entire ranch's assets be seized to pay for CPS' boondoggle.)

After the women and kids were all gone, media accounts described the YFZ Ranch as nearly a "ghost town." But now a court order and CPS restrictions will REQUIRE them to stay in one place instead of going back to Arizona, etc.. Probably, even more sect members will join them, since these folks can't leave and the only FLDS temple is at the ranch. With FLDS recently ordering hundreds of voter registration cards, and court proceedings possibly stretching on for years, I predict the ruling virtually guarantees a huge FLDS voting bloc will henceforth act in Schleicher County to oust the politicians who sponsored this mess.

In other words, the raid likely has facilitated the future takeover of this West Texas community that locals had feared but which heretofore never actually occurred. If I'm right that the real goal was to remove them entirely, then this whole operation really backfired. If we don't see a wave of politicians in that county over the next few years named Jeffs, Barlow and Jessop, I'll be darn surprised.

After the Third Court of Appeals ruling, I posed several questions, some of which still remain unresolved in the wake of yesterday's result.

What does this mean for families that already signed CPS "service plans"? Will those be deemed invalid since the child seizures that spawned them weren't justified?

Similarly, if the judge had no authority to order the children's seizure, does that mean she also had no authority to order the much-ballyhooed DNA testing, results of which are expected back soon? What happens with those results?

Another still-unanswered question: "if CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?" It seems likely, but I don't know.

What happens with the 90 new staff positions CPS got approval for in order to handle this case? Will the Legislature still allow them to move forward with those new hires, or will they shut down the expansion?

Perhaps most critically, when will the press investigate the pre-raid machinations that launched this fiasco? When will we hear the story of Rozita Swinton, the hoaxer whose phone calls started the mess? She's been incommunicado now for nearly two months. I want to know how she latched onto FLDS, who she spoke to before the incident, and when someone first figured out she was faking. Why hasn't she been charged in the YFZ case? Why haven't we heard her story?

All that said, yesterday's ruling was a mitvah and a blessing. Guy over at Messenger and Advocate offered this eloquent statement about the ruling's larger meaning for the nation and the Constitution:

I suppose in part it means, that the Founding Fathers, back in the day of this country’s infancy, were indeed inspired men, raised up by God to enshrine God given rights in our Constitution and Bill of Rights. In part it means that the rule of law is still paramount even today, even when a state is investigating an extremely unpopular religious movement. In part, I think it means that we should be grateful that the passions of the moment are subject to later review by cooler and calmer minds.

He's right; we should be grateful. So let me say formally, "Thank you Texas Supreme Court. ... Thank you Third Court of Appeals."

As egregious as the state's actions have been, you provided a constitutional backstop that limited the damage and protected individual rights. Today I'm proud of these members of the Texas judiciary. Let's hope Judge Walthers pays attention to what they've told her.

UPDATE: FLDS kids will begin returning home Monday.

NUTHER UDPATE: Judge Walthers added extra conditions that may delay the kids' return. More appellate filings expected. The Lone Star Times says FLDS was 'Walthered' again.