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Appeals court rules against child seizures

Posted by Richard on May 22, 2008

This decision strikes me as a victory for parental rights, civil liberties, and the rule of law:

SAN ANGELO, Texas (AP) — A Texas appeals court said Thursday that the state had no right to take more than 400 children from a polygamist sect's ranch, a ruling that could unravel one of the biggest child-custody cases in U.S. history.

The Third Court of Appeals in Austin ruled that the state offered "legally and factually insufficient" grounds for the "extreme" measure of removing all children from the ranch, from babies to teenagers.

The state never provided evidence that the children were in any immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said. The state never provided evidence that teenage girls were being sexually abused, and never alleged any sexual or physical abuse against the other children, the court said.

"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger," the court said in its ruling, overturning the order to keep the children by state District Judge Barbara Walther, a former family law attorney.

The appeals court also said the state was wrong to consider the entire ranch as an individual household and that any abuse claims could apply only to individual households.

This story doesn't mention the anonymous phone calls cited at the time as grounds for the warrant. Considering what we've learned since, the state probably didn't rely on that "evidence" during the appeal.

 The caller claimed she was a 16-year-old girl at the compound who was being abused by her uncle-husband. Authorities had no idea who (or where) the caller was and no corroboration of the story, but a judge signed off on the warrant anyway.

Weeks later, investigators determined that the caller was actually a 33-year-old Colorado woman, Rozita Swinton, who's made similar hoax calls on other occasions (and is apparently very convincing).

Many of the other claims made by Child Protective Services to justify taking the 400+ kids have also fallen apart:

Roughly a third of the children taken from the west Texas ranch were babies, and only a few dozen were teenage girls.   Of the 31 originally believed to be underage mothers, 15 have been reclassified as adults — one was 27 years old — and the state conceded a 14-year-old girl had no children and was not pregnant, as officials previously asserted.

About the time that Swinton was identified, an old friend wrote me about this case, and I recall thinking I should read up on it and post something. But it was during one of my distracted periods, and I never did. I never replied to that email, either; sorry, John! I'll make amends by quoting your message, which says it as well as I could:

I am perplexed that there is no real uproar over the raid on the LDS compound in Texas. Putting aside any judgments about the issues of plural marriage and young marriages (btw, just why do we ban plural marriage?), the raid was based on a single call [several, but the point's still valid -ed.] to a non-governmental center and was anonymous at that. There was no evidence presented. There was no smoking gun. And now it seems that the call was a hoax. Where are the civil libertarians when it comes to this raid? What happened to the ACLU?

I certainly am not arguing that the call should not have been investigated, nor am I defending the compound. I do think more time and effort should have been invested in finding out if the story even made sense. The state had time to organize the raid, which involved hundreds of law enforcement and human services employees, but not enough time to find out if the call was even real. Using anonymous sources to get warrants as was done here violates our constitutional rights to face our accusers. When justice and our rights under the constitution become situational we are indeed in trouble.

And yet I see no one asking the essential question of the state of Texas, "Do you have this right?" I know this will play out in court and be settled after long years and much expense but the lives of the 400+ children are being sacrificed in the process, along with those of their parents.

Thanks to this appeals court ruling, this case may play out much sooner than John anticipated. But that doesn't change the fact that the local and state authorities acted outrageously.

I suppose it could have been worse. If Rosita Swinton had claimed that her uncle-husband-abuser had an illegal automatic weapon, the whole "compound" and everyone in it might have gone up in flames, like that other weird religious group in Texas.

UPDATE: Walter in Denver was pleasantly surprised by this ruling, too. That reminds me — I really should have congratulated Walter for winning that Vodkapundit caption contest. Outstanding! 

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