"I think it is an incredible and astounding exercise of police power," said civil rights attorney James Harrington.
The entire investigation was kicked off by what police now suspect was a hoax phone call, allegedly coming from within the Eldorado, Texas, polygamist compound by an abused 16-year-old. An extensive search warrant was issued, allowing police to rummage through every house in the large compound. In the end, hundreds of children were separated from their mothers.
Harrington said his immediate concern is for the children, who he suspects are traumatized and victimized.
"You can't take away a kid from their parents by saying, 'Hey, maybe later on there might be some abuse,"' he said. "It's a way of flipping the Constitution around so that they now have to prove they're innocent instead of the state having to prove they're guilty."
But this is civil law, and the fact is, the state law gives Child Protective Services a great deal of leeway, said Jack Sampson, a family law professor at the University of Texas law school.
The law sets a low threshold for removing a child from a potentially dangerous situation and urges judges to err on the side of caution.
"The department deemed the story told by the complainant to be a credible one and responded," Sampson said. "Whether it was a hoax or not from the victim is really irrelevant."
Once in the door, CPS conducted its own investigation, and presented evidence to state district Judge Barbara Walther that at least 20 women who lived in the compound were 16 or younger when they became pregnant.
"They responded and got all sorts of visible evidence as to what was going on in the compound," Sampson said. "You don't have to prove abuse at that first stage" where the state can win temporary custody of the children.
Kevin Dietz, a lawyer representing 45 mothers from the Fundamentalist LDS Church, said the state violated basic due process standards when it swept so many children from families without giving the parents an opportunity to respond.
Some of his clients received no notice from the court or CPS about the legal proceedings. "They had no meaningful way to participate and no evidence was presented against them," said Dietz, who works with Texas RioGrande Legal Aid.
Some clients were living as a couple with their three young sons, and the CPS did not explain what danger male children might face.
"These parents, other than being a member of this religion, were otherwise protective parents," Dietz said.
"The state might have evidence that some mothers put some children a risk, but you can't bootstrap that evidence to apply to everyone who lived in this community. And that's what was done last week," he said.
Social conservative lawyer Kelly Shackelford said he and other Christian-rights advocates have their "antennas up," worried that overly broad actions could do collateral damage to parents' rights and church autonomy.
He and others including Harrington and Dietz said they believe the state should bring criminal charges if men in the polygamist sect are forcing 12- and 13-year-old girls into sexual relations.
But, Shackelford said it is important to protect freedoms also. Too often, government officials and judges have a tendency, "to say that because we are protecting children, we can do what we want," he said.
Sampson, the University of Texas law professor, said the law "doesn't expect miracles" in mass litigation. The state had 14 days to present a case to the judge, and in certain aspects, it was similar to other child abuse hearings, he said.
When a mother knows of sexual or physical abuse of her child whether it be by a boyfriend or a relative and fails to report it herself, then the state takes a dim view of her ability to protect not just that child, but all of the children in her household.
"It's up to the judge to determine what's the household or the community," Sampson said.
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