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

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

Could the raid on the FLDS ranch in Texas happen here?
Critics of the April action accuse Texas of cowboy-style justice, trampling over constitutional rights by using lax laws that must be more liberal than other states.
That general point of view received a boost this week when a Texas court of appeals ruled that child protective services authorities acted improperly when they removed all 400-plus of the YFZ Ranch children and subsequently placed them in foster care.
However, the basic Texas laws that those authorities were following aren't that dissimilar to, say, Utah's.
Both states have criminal penalties on the books for engaging in sex with a 13-year-old — even if the teenager consents.
Both states have criminal prohibitions against sexual contact with older minors and restrictions on when a teen can lawfully get married.
And at least one child welfare expert says that to examine the difference of "why" and "how" the raid happened in Texas and not in Utah, the answers aren't on the law books.
"If you think the outcome would be different in Utah, the reasons would not be found in the child protection laws," said Scott McCown, director of the nonpartisan, nonprofit research organization called the Center For Public Policy Priorities based in Houston.
"A major difference between Texas and Utah is going to be numbers. ... You have a different response when you have a 10,000-kid problem instead of a 400-kid problem. It is also new to Texas and old to Utah."
Utah Attorney General Mark Shurtleff has said in the past that prosecuting polygamy in Utah would be impractical, flooding Utah jail cells with thousands of adults and putting even more children into the state foster-care system who were born from polygamous unions.
But McCown said Texas doesn't have that same problem.
"It goes back to the public policy of Texas that plural marriages are unacceptable — that they are a social evil. Texas basically had this one community, and it was possible for Texas to move against this community.... It goes back to the difference in the cultures, the magnitude and the numbers" between the two states, McCown said.

Numbers and culture
A pro-polygamy group's most recent census of plural communities puts those who consider themselves fundamentalists subscribing to polygamous beliefs at around 37,000 in Utah and surrounding states. In contrast, when Texas authorities entered the YFZ Ranch on April 3 to investigate a complaint of suspected child abuse, they believed there were between 100 to 150 people living there.
Texas officials saw that number quickly rise. The number of children alone was last reported at 464, including two infants born while in state custody.
The numbers help shape state response, or lack thereof, McCown noted.
"Inside Texas as well, along the border where you have thousands and thousands of children in very severe poverty, a child might be left in a neglectful situation," McCown said. "But in a rich, suburban area in the northern area of the state, it might not be tolerated. What's the difference? You can remove one, you cannot remove thousands."
McCown, who retired as a state judge in 2002 and presided over thousands of child-abuse cases, said because of federal government mandates, state laws on child protection and agency response can't vary too much.
"There's not much difference in the formal expression of the law. There may be some differences in practice, but the big reason practices may vary is the differences in the services that are available."
Texas also recently revamped its marriage laws after FLDS members acquired the ranch and moved there.
"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.
Six hours after arriving on the ranch, Texas CPS decided the children were at immediate risk for abuse, sought the removal affidavit from the judge, and by the next morning authorities started to bus the children off the ranch.
Critics argue that not all children — certainly not the babies, certainly not the young boys — could possibly have been in harm's way if they had remained on the ranch in the aftermath of the raid.
In Texas, as in Utah, there's a child protection provision on the law books dealing with "siblings at risk."
Third District Juvenile Court Judge Mark May said if there is a judicial determination that one child has been abused or neglected and a removal has been ordered, there is a presumption that other children in the same household are at risk.
"The way the state sees it, this was a community designed and organized for the purpose of carrying out felonious sexual assault against underage girls," McCown said. "All these adults were bound up in this culture, are part and parcel of it, so they (Texas authorities ) have a duty to protect the children."
However, in their ruling last week, the Texas 3rd Court of Appeals ruled the evidence for taking away all the children "was legally and factually insufficient.... Consequently, the district court abused its discretion in failing to return" the children.
On Friday, Texas child welfare officials appealed that ruling to the state's Supreme Court, also asking that the CPS be allowed to keep the children in foster care, though a dozen have already been ordered returned to their parents .


E-mail: amyjoi@desnews.com

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