Critics Say CPS Failed to Foresee Nuances
Agency Faulted in Taking Routine Route on FLDS

By Janet Elliott
Houston Chronicle
May 31, 2008

AUSTIN — In the early days of the state's raid on a West Texas polygamist sect's compound, child welfare officials insisted that they were going by the book in removing children from a potentially dangerous living situation.

Only the numbers made the case unusual, representatives for Child Protective Services repeatedly insisted.

But that rigid professional compass may have prevented agency officials from thinking about the various "what ifs" in the case and now many people are second-guessing CPS.

The decision to remove more than 460 children, including infants, toddlers and boys, because of the group's practice of marrying young teen girls to older men ultimately led to the Texas Supreme Court ruling Thursday that the children — including the teenage girls considered most at risk — should be returned to the Yearning For Zion Ranch near Eldorado.

It's uncertain when the state will begin moving the children back to their home. The San Angelo judge overseeing the case refused to sign an order until sect parents agreed to certain conditions, including allowing CPS workers access to the children.

"Treating this case like it was any other case was obviously an error," said Jack Sampson, a University of Texas law professor who helped write the state's Family Code. "That's why one could, in retrospect, say it was too ham-handed. They should have been more nuanced."

Sampson said the agency also should have been more sensitive to the political and social ramifications of the case, which involves the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway Mormon sect.

Speaking out

After hundreds of children were separated from their mothers and bused to shelters around the state, the FLDS mothers broke their silence. They met with reporters and did television interviews where they were open about their heartbreak, but they refused to say whether they had helped arrange "spiritual marriages" between their teenage daughters and older men.

Although a criminal investigation is continuing, the children's return is expected to make it harder for the state to prove an ongoing threat of abuse.

CPS officials said in April they needed to separate the children from their mothers to break a code of silence the women enforced.

Richard Wexler, executive director of the Virginia-based National Coalition for Child Protection Reform, said CPS will have no one else to blame if anyone on the ranch gets away with child abuse, now.

"Their blundering and their hubris created this mess," Wexler said.

He said the case exposed the broad powers granted to CPS agencies in most states.

"But the families to whom this normally happens are overwhelmingly poor and disproportionately minority," Wexler said. "They rarely have good legal representation. And everything happens in secret."

The opposite problem

In recent history, CPS has most often been rapped for doing too little to remove children from dangerous homes.

A series of horrific child deaths in cases where CPS investigated but failed to take action led to 2005 legislative reforms and an infusion of money to help the agency hire more caseworkers.

Jane Nelson, R-Flower Mound, chairwoman of the Senate Health and Human Services Committee, said Friday that her committee has a duty to re-examine the FLDS case to make sure state policy is properly balancing "protecting our children and protecting parental rights."

"Even though this was an unprecedented case on a scale unlikely to reoccur, the Supreme Court's ruling does raise questions about whether the agency is using its power appropriately," Nelson said.

Not everyone is critical of CPS.

State Rep. Drew Darby, R-San Angelo, praised the agency and the many volunteers who pitched in when the children and mothers were first brought to temporary shelters in his city in April.

"To say I'm disappointed with the appellate process is an understatement," Darby said. "I feel for the children. I just feel for everybody that has tried so hard to do the right thing, and then to have that examined from afar is just frustrating."

Darby said he is worried about the children's safety.

"Once they go back to the ranch, do we go back to business as usual and have these children subjected to what is systematic and institutionalized abuse, in my opinion?" he asked.

Sen. Carlos Uresti, D-San Antonio, has worked over the years to improve CPS and thinks the agency remains understaffed. But he said they were right in this case to err on the side of protecting children.

Religion and rights

Religious freedom has been a constant undercurrent to the dispute.

The American Civil Liberties Union cited First Amendment and due process protections in a brief it filed with the Supreme Court in support of the mothers.

But Dallas attorney Barbara Elias-Perciful, who runs a project designed to improve the legal system's handling of child abuse cases, said this was a case where children needed to be removed from their parents.

"To return the children now will send a message that sexual abuse of young girls is not a serious matter," Elias-Perciful said. "It will also eliminate the parents' incentive to make the difficult changes necessary to ensure the safety of their children."

The appeals courts rejected CPS' key argument — that the 460-plus children were members of a single household where a "pervasive belief system" put all female children at risk of sexual abuse and male children at risk of becoming adult abusers.

"Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal," the 3rd Court of Appeals said, and a majority of the Supreme Court later agreed.

Three Supreme Court justices disagreed with returning girls who had reached puberty.

A chaotic scene

The initial cracks in the legal case came in late April at the 14-day adversary hearing.

Hundreds of lawyers from around the state who volunteered to represent the children and mothers crowded into District Judge Barbara Walther's courtroom and an overflow room while the judge struggled at times to maintain order.

The mothers who successfully sued to get their children back were represented by seasoned legal aid lawyers.

"The (Department of Family and Protective Services) was overwhelmed by the number and ferociousness of the lawyers," said Scott McCown, a former state district judge familiar with the case. "They just didn't have the legal capacity to meet the legal challenge."

The lack of involvement by Texas Attorney General Greg Abbott, who did not join forces with CPS attorneys to defend the case at the Supreme Court, frustrates Darby.

"When you have this many state resources and this many people working for the good of children, everybody needs to be involved at every level," Darby said.

Little input from Perry

Even as the raid and child custody case were making headlines nationwide, Gov. Rick Perry had little to say.

His spokesman Robert Black said that CPS and Department of Public Safety officials, not Perry, made the decision to raid the ranch based on a call to an abuse hot line.

The caller purported to be a 16-year-old girl who said she was pregnant, had a 1-year-old daughter and was abused by her older "spiritual" husband.

Authorities now believe the calls may have come from a Colorado Springs, Colo., woman with a history of making false abuse reports.

Black said the fight to protect the children isn't over and noted a criminal investigation is under way.

"The governor believes these kids need to be protected, and they are not in a good situation out at that ranch," he said.



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