Attorneys arguing over the removal of 416 children from the FLDS ranch will be debating laws that are often vague, vary significantly among states and, while intended to protect children being abused, do not always work in the child's best interests.
A hearing required to establish temporary managing conservatorship of a child similar hearings are required in Utah is to be held today. About 160 separate child removal petitions one in the interest of 330 children taken from the ranch have been filed in the 51st District Court in San Angelo, Texas, near the YFZ Ranch of the Fundamentalist LDS Church.
While the fate of those children remains undecided, a national observer and advocate of child welfare reform said if the children have been removed from their parents for no statutory reasons, they need to be returned.
"Since I'm not a lawyer, I can't say if any specific laws have been violated," said Richard Wexler, executive director of the National Coalition for Child Protection Reform. "But in general, the laws are extremely broad and extremely vague."
The federal courts can, however, become very involved in the daily life of a state child protection agency. The treatment of children taken into foster care by Utah's child protective services became a federal case that lasted 14 years. Federal court oversight ended this past June in the so-called "David C." class action lawsuit.
Despite accusations that Utah was intentionally procrastinating or outright refusing to comply with the settlement in the case, both sides said significant and needed improvements such as increasing the number of caseworkers from 282 to 612 and making sure each child receives a medical, dental and mental health check-up while in state care were the upshot of the case filed by the National Center for Youth Law in 1993.
Wexler who followed the David C. case closely and others say almost none of the normal protections of due process of law that Americans expect apply in child welfare proceedings especially when it comes to emergency removal power and actions taken before the first court hearing.
"And even beyond whatever is in the statute, every judge knows that if she rubber stamps removals, the children may be hurt but the judge is safe," he said. "Send one child home and have something go wrong and the judge's career may well be over. In this case, multiply that by 416."
Therefore it's no wonder Texas authorities had no fear about breaking these children's one remaining emotional bond and possibly traumatizing them for life by separating them from their mothers, he said.
"The irony is, if these children really were abused at the YFZ compound, then tearing them from their mothers actually will traumatize them even more than if they weren't."
Child welfare agencies tend to be vengeful, he added. "They often retaliate against parents who speak out. That may well be the real motivation for what happened here."
Monday, Texas officials separated many of the mothers from their children in temporary shelters and then ordered the women to return to their homes. The move came a day after several women in the shelters and at the FLDS ranch spoke out for the first time to the Deseret News complaining about conditions in those shelters. As in Utah, every child taken into state foster care requires legal guardian representations. In Texas, the hearing must be held within 14 days. In Utah, a "shelter hearing" must be held within 72 hours after a child is removed.
The differences between states are due primarily to the vagueness of federal law. Mostly, the federal legislation on child welfare laws provides only general guidelines, requiring only that the ongoing safety and welfare of the child needs to remain the paramount concern.
In Texas, officials have maintained that they removed all of the children because of a lifestyle there that promotes abuse and neglect.
Two years ago, the Texas Supreme Court created the Permanent Judicial Commission for Children, Youth and Families to improve how the judicial system treats abused and neglected children, according to a professional legal Web site that is issuing a call for lawyers to represent the children. However, commission members will have their work cut out for them with the FLDS removal cases.While there are thousands of family lawyers in Texas, not all of them have ad litem experience. The Texas Family Code requires that lawyers have continuing legal education training before they represent children as ad litems in family court cases.