Sunday, April 13, 2008

Next in the polygamist sect raid, a legal marathon

416 children will need lawyers, then judges to hear their cases

Authorities entered the main temple of the Yearning for Zion ranch as part of the search that began April 3. The sect came to Texas in 2003 from Arizona and Utah.

ELDORADO — In seeking permanent custody of hundreds of children removed last week from the West Texas compound of a polygamist sect, child welfare officials are ripping open a Pandora's box of legal and logistical issues.

First looms the inevitable collision between the state's duty to protect Texas children from abuse and the constitutional rights already being raised by sect lawyers — religious liberty and freedom from unreasonable search and seizure.

On a more mundane level, but no less important, will be enormous courtroom management problems from hundreds of cases triggered by the unprecedented Child Protective Services action.

"There is plenty of authority in the family code to kick in the door if you have a credible report of abuse," said Jack Sampson, a family law expert at the University of Texas School of Law in Austin.

But terminating parental rights requires a far greater burden of proof than needed to raid the compound and temporarily remove children from an allegedly abusive situation, he said.

And each child will need at least one lawyer.

"You won't just need a hundred lawyers to represent the children," Sampson said. "You'll need dozens of judges if the state is going to try these cases."

"And things can get very sticky for the lawyers for the children who are teenagers and say they want to go home," he said.

Efforts already are under way to recruit lawyers to represent the 416 children in state custody in San Angelo.

"In the last 24 hours I've been contacting lawyers around the state. It's estimated we'll need 75 to 100 lawyers to go out there and volunteer to represent these children," said Tom Vick, a family law practitioner in Weatherford.

"The lawyer is charged with interviewing the child and the witnesses, and taking a good look at the entire situation and then advocating what is in the child's best interest. And sometimes it's at odds with Child Protective Services, the parents, everybody," he said.

When members of the Fundamentalist Church of Jesus Christ of Latter Day Saints arrived in Texas from Utah and Arizona in 2003, allegations of young girls being forced to marry much older men soon followed.

The raid on the compound was prompted by phone calls in late March from a 16-year-old girl who described being the seventh wife a 50-year-old man who beat and raped her. Authorities ended up removing every child from the compound outside Eldorado.

Before they received the girl's calls, officials said, they had no grounds to intervene.

Beginning April 3, dozens of officers searched the compound for six days, seizing cell phones and computers, and eventually forced their way into the massive alabaster temple while sect members prayed inside.

In court filings seeking termination of parental rights, CPS officials now say just being born into the sect ensures child abuse, describing "a widespread pattern and practice ... in which young, minor female residents are conditioned to expect and accept sexual activity with adult men at the ranch upon being spiritually married to them."

The state says it now has evidence that every child was either abused or at imminent risk of abuse.

Sect lawyers have filed pleadings claiming the comprehensive searches of the 1,700-acre compound violated First and Fourth Amendment protections as well as the Texas Constitution.

"The FLDS and its congregants enjoy the right under the First Amendment to the United States Constitution to exercise their religion and to assemble unhampered by government intrusion," wrote Cynthia Orr, complaining that the searches were intrusive, overly broad and were misrepresented to the judge who approved them.

But it's unlikely Orr's objections will prevail, one expert said.

"There are religious liberties issues here, but none that a judge is likely to take seriously: Laws about polygamy and underage sex apply to everyone. There is no right to an exemption for a religious group," said Douglas Laycock, a professor emeritus at the UT law school.

The gravity and breadth of the allegations make it likely the state will get some leeway in presenting its case, he said.

"Searching a whole community for one girl is not normal, but no other group presents this kind of issue," Laycock said. "They were probably stretching probable cause to the limits, but my guess is the court will uphold it. If those allegations of coerced sex turn out to be true and commonplace, the religious liberty issue becomes pretty frivolous."

Convincing juries or judges that life within the sect constituted child abuse "wouldn't be that difficult if the reports are based on facts," said Sampson, the family law expert. "But the mechanics of holding scores of trials in rural West Texas is virtually incomprehensible."

And because of the complexities of severing parental rights and the likelihood that sect children will resist being removed, the state's attempt at wholesale custody may falter.

Some of the parents, especially if they can be criminally charged, will lose their children, Sampson said.

"But the whole shooting match? Taking all the kids away? I just don't see it," he added.

The raid and mass removal of children in rural Schleicher County mirrors a government action taken five decades ago far to the west that backfired badly on authorities.

In 1953, Arizona Gov. Howard Pyle sent in more than 150 troopers and police in a pre-dawn raid on the polygamist community known as Short Creek on the Arizona-Utah border. More than 120 men and women were arrested, and some 260 children were removed.

Pyle's justification? Forced marriages involving teenage girls to older men.

"Here is a community unalterably dedicated to the wicked theory that every maturing child should be forced into the bondage of multiple wifehood with men of all ages for the sole purpose of producing more children to be reared to become more chattels of this totally lawless enterprise," he said.

But the raid proved a fiasco. News coverage described families torn apart. Pyle was later voted out of office, and all the polygamists who had been arrested — and their children — returned to Short Creek.

Some here wonder whether the Schleicher County raid will have a similar outcome. Texans also are reminded of a more recent confrontation between the state and a religious sect.

Houston lawyer Dick DeGuerin represented Branch Davidian leader David Koresh in a 1993 federal siege of his compound that ended in fiery tragedy, with 160 people killed, including scores of children.

To DeGuerin, the Eldorado raid is another example of government overreach.

"It's like Alice in Wonderland, off with their heads! And then we'll have a trial," he said. "It's the classic case of arrest first and investigate later. They took 500 people away from their homes to a makeshift prison without any evidence they've done anything wrong."

"Child abuse is a bad thing. We need to police it and punish it, when there is evidence it happened," he said. "But you can't just say, 'These are fundamentalist Mormons, they believe in polygamy, and therefore we'll arrest them all and find out if they've been doing it.' That's not what America is all about."

Original Article -

Next in the polygamist sect raid: a custody legal marathon - Houston Chronicle

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