“When I die, I may not go to heaven, I don't know if they let cowboys in,” sang Tanya Tucker. “If they don't just let me go to Texas, Texas is as close as I've been.”
For the more than four hundred children that officials removed from their mothers at Yearning for Zion Ranch near Eldorado, Texas, the Lone Star State is as close to hell—not heaven—as they’ve been. Or probably ever hope to be!
Agents of the Texas Department of Family and Protective Services removed and relocated these youngsters, some of whom were infants, throughout the vast region, often separating siblings by great distances. Their mothers, who are related to the Fundamentalist Church of Jesus Christ of Latter Day Saints, frequently cannot visit them because they are separated by several hours of driving. The youngest children have been especially bewildered and distraught. It is difficult to imagine the darkness and deepness of their distress. It is just as easy to doubt that all this grief is necessary.
Some time ago in this column, and in the comments that followed, we discussed the possibility that the Texas officials who removed these children made a mistake by treating the problems at YFZR as though they are acute when in fact they are chronic. Acute problems often respond favorably to dramatic interventions, but chronic ones don’t. They require constant and calm pressure over many years, not episodic televised eruptions of legal excess.
On May 22, the Third District of the Texas Court of Appeals at Austin directed the district court to vacate its orders that had made the Texas Department of Family and Protective Services “the sole managing conservator” of the children. This made it possible in due course to return the youngsters to their homes at YFZR.
The Court of Appeals held that the department had failed to meet the requirements of Texas law in at least three ways. To begin with, it held that Texas requires that “the danger must be to the physical health or safety of the child” and that the Department had failed to establish this. It “did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty,” it declared. (Emphasis supplied)
This would apply to many of the children the officers removed from their YFZR. But the court went further. “Nor did the Department offer any evidence that any of the Relators’ pubescent female children were in physical danger,” other than that these young women live in a community that approves of polygamy and of women who are underage in the eyes of Texas law having children. (Emphasis supplied) This belief by itself “does not put children of FLDS parents in physical danger,” and the department failed to provide any other evidence that they were, the court held.
A second consideration is that, in addition to being a physical danger, Texas law requires that “the need for protection is urgent and warrants immediate removal.” (Emphasis in original) “Even if one views the FLDS belief system as creating a danger of sexual abuse as the Department contends, there is no evidence that this danger is ‘immediate’ or ‘urgent’ with respect to every child in the community,” the court stated.
Here the court seemed to be making two points in one: (1) The danger was not “urgent” and “immediate” and (2), even if it was for some of the children, it wasn’t necessarily so for all of them because they lived in different “households.” This second consideration impresses me as a hinge on which much of the court’s thinking swung.
Finally, contrary to the stipulations of Texas law, the “record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of and/or separation from parents would have eliminated the risk.” Entirely removing children from their families should not have been such an early resort.
Thus, in summary, in removing all the children, some of whom were very young, in the absence of an immediate and urgent threat of physical harm, and before sufficiently exploring other options, the department erred. “Consequently, the district court abused its discretion in failing to return” the children and “it is directed to vacate its temporary orders granting the sole managing conservatorship of the children” to the Texas Department of Family and Protective Services, the court ruled.
I finally understand from this ruling why the department removed all the children—more than four hundred of them—on the basis of a questionable telephone call and the discovery upon investigation that at YFZR “there were five minors who were or had been pregnant” and “that the belief system of the community allowed minor females to marry and bear children.” It is standard practice for officials to remove all the children in a family even if only one of them is in immediate and urgent physical danger and the department viewed everyone who lived at YFZR as members of one single all encompassing “household.”
Apart from this incomprehensibly erroneous view of life on the ranch, the department could not have pretended even to itself that it was right for it to remove all the children. As the court noted, a number of different families live at YFZR, not only one. What’s more, the department conceded that, on matters that are pertinent and important to this case, the residents of YZFR, a community of households rather than just one, varied some in thought and practice.
Perhaps the Oneida Perfectionists in the nineteenth century, whose practice of “complex marriage” made every adult sexually available to all the others under strictly enforced rules, could have been construed as a “single household.” Yet even that would be a stretch of the term.
“The evidence was not legally or factually sufficient to support a theory that the entire ranch community was a ‘household’ as defined by Texas law,” the court wrote. Why would anyone think otherwise?
Given its defeat at the court of appeals, it was reasonable to anticipate that the department would accept its ruling with as much dignity as possible, return the children to their homes at YFZR, and then launch a proper investigation. But on Friday, May 23, it announced its decision to appeal. The sorrow continues!
David Larson teaches in the School of Religion at Loma Linda University.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/636