Utah, Texas laws are similar; FLDS population isn't

Published: Sunday, May 25 2008 12:00 a.m. MDT

"The magnitude of the problem, from the Texas point of view, is that every person — every adult man and woman in a plural marriage — was committing a second-degree felony for which they can go to prison for 20 years," McCown said.

Bigamy in Texas is a second-degree felony if the "second" spouse is 16 or older and a first-degree felony if the second spouse is younger than 16.

"The way the state sees it, the way CPS sees it, these adults are knowingly committing felonies, knowingly tolerating felonies being committed, and those felonies involve the sexual assault of children," McCown said.

Culturally, the historical tolerance of polygamy is also absent in Texas.

The state, he said, doesn't see it as a "lot of adults in a plural marriage, with a different religion, different culture and so live and let live...."

Laws and children

Procedurally, both Texas and Utah have the right to take children into protective custody if authorities suspect immediate danger to the minor.

States don't have to wait to file criminal charges, they just need enough cause to believe that if the child isn't removed there will be immediate danger. The proof of neglect or abuse, or lack of it, unfolds later in family court under the umbrella of civil law, where the level of proof is lower than a criminal court.

In this scenario, the most common, practical example offered by Utah authorities is the child found in a home where a meth lab is discovered.

If both parents or guardians are arrested on suspicion of drug possession, there's no one else to take care of the child, and the child can't be left on its own.

The same can be said in the case of a meth-addicted mother who gives birth to a baby in a hospital and the baby tests positive for drugs. If the mother has threatened to take the baby and leave at first opportunity, investigators can take the child absent a warrant — or in Texas it's called a removal affidavit.

A warrant or removal affidavit is sought if there is time — requiring the review and ultimately a judge's signature authorizing the action.

That happened in Texas with the YFZ Ranch, and in Utah warrants of removal are obtained about 30 percent of the time children are placed in protective custody, said Julie Lund, chief of the Attorney General's Division of Child Protection.

"The big thing with the warrant is we need to establish why the parents can't be given notice and a hearing before custody is changed," Lund said.

"It's a very delicate balance," added the director of the state Division of Child and Family Services, Duane Betournay. "You have the need to protect the child and also the desire of not wanting to trample over parental rights and constitutional rights. It is a balance we have to ask ourselves constantly."

Betournay compared the varying avenues of authorities' response as rungs on a ladder — and the potential for violations increasing with steps taken absent parental input.

The risk to all

In Texas, a child protection supervisor testified that early in the ranch investigation that authorities were met with vague answers given by young teenage females obviously "selected" by adult men to be questioned.

Some of the girls didn't know their birth dates, said Angie Voss, and while they freely discussed the nature of their chores and daily living, they shut down or became "closed off" when it came to identifying who lived in their household and the nature of their relationships.

The girls also talked about being "persecuted by outsiders," Voss said, adding that a teenager told investigators she believed there was "no age too young to be spiritually" united with a man.

Additionally, if parents or guardians can't reasonably assure investigators of the safety and protection of children if they are to remain in the home in the midst of an investigation, the children can be ordered to remain in custody.

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