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May 25, 2008
FLDS: THE RULE OF LAW FINALLY PREVAILS
Houston Criminal Defense Attorney John T. Floyd Discusses In Re Steed: Texas Court of Appeals Finds No Evidence to Support Finding of Danger to Physical Health or Safety of Children at FLDS YFZ Ranch, CPS Failed to Take Reasonable Efforts Short of Separation from Parents
(Read the Opinion: In re Sara Steed )
The FLDS case began with two anonymous telephone calls from a “16-year-old” girl on March 29, 2008 to a local hot line crisis center in Eldorado, Texas. The anonymous caller told a terrified tale of being forced into a “spiritual” marriage to a man named Dale Barlow who she said frequently beat and raped her at the Yearning for Zion Ranch owned by the FLDS church. The anonymous caller said she was forced into this marriage at age fourteen, had an eight-month-old child, and was pregnant again by Barlow. The hot line crisis center reported the anonymous calls to law enforcement officials.
Texas law enforcement officials now believe the anonymous caller was actually a 33-year-old African-American woman named Rozita Swinton arrested in Colorado Springs, Colorado on April 16. Swinton has a peculiar interest in the FLDS church as indicated by a large volume of evidence in her Colorado residence linking her to telephone calls to the FLDS compound in Texas. Texas law enforcement and Child Protective Services authorities would learn that the woman has a history of making anonymous telephone calls falsely reporting abuse to authorities.
But as soon as Texas law enforcement authorities and Child Protective Services officials received the “tip” from the anonymous caller, they secured an arrest warrant for Barlow and a search warrant for the YFZ Ranch. Barlow was quickly located in Colorado City, Arizona where he lives. He was one of several FLDS member arrested in Mohave County, Arizona, in 2005 on a number of sex related offenses with minors. He pled guilty last year to one count of conspiring to have sexual contact with a minor and was placed on probation. Conditions of his probation require that he report to his probation officer twice a month, register as a sex offender, and secure a permit to travel before leaving the state of Arizona.
Arizona authorities quickly investigated Barlow and concluded that he had nothing to do with the YFZ Ranch or any 16-year-old girl being kept there against her will. Texas officials did not come to the same conclusion. On April 3, 2008 the Texas Rangers and local law enforcement officials launched a military-style raid on the 1,700-acre YFZ compound that resulted in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.
Subsequent court hearings and CPS-leaked reports to the media painted a public picture of the YFZ Ranch as a horrific place of polygamy, sexual and physical abuse of children, and forced “spiritual” marriages between older FLDS men and underage girls. These “abuse” images have become part of a an almost hysterical national political and social debate about what should be done with the “FLDS sect,” particularly with respect to the alleged but unfounded sexual and physical abuse of the church’s children.
This hysteria was so immediate and intense that a local state court ordered the removal of 468 children (300 of whom are four years old or younger) from their parents and placed in foster care facilities based on speculative evidence, at best, presented by CPS officials that the children were in “immediate danger.” Thirty-eight mothers of the seized children challenged these findings through mandamus proceedings to the Third Circuit Court of Appeals in Austin.
This case began with false reports by the anonymous 16-year-old caller. It was an irresponsible decision by law enforcement and CPS officials to launch a “police-state” style investigation of the FLDS church. This was made clear on May 2, 2008, while the mothers’ appeal was still pending, when the Texas Department of Public Safety finally rescinded the Barlow arrest warrant with the following statement: “The arrest warrant for Dale Barlow is no longer active. [We] have no further information on this.”
On Thursday, May 22, 2008, the appeals court ruled that the state court did not have sufficient legal or factual evidence of the FLSD children’s health and safety was in imminent danger to warrant their removal from their parents. The rule of law finally prevailed over the rule of social hysteria. One national news pundit immediately criticized the decision as “judicial activism” and another said it was “too legalistic.” This nation can count its blessings that these news pundits (and the social “experts” they employ) – these “talking heads” who tell ordinary people how they should think, feel, and react about prevailing social issues – are not members of the judiciary. It staggers the imagination to think about the horrors and abuses these ideologues would inflict if they had real power to impose their socio-political beliefs on society.
Fortunately, the appeals court had the judicial responsibility to interpret the law as it was written and intended by the Texas Legislature. The specific law in this case is Section 262.201 of the Texas Family Code which requires CPS to carry the following burdens before agency can remove children from their parents: “(1) that there was a danger to the physical health and safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children’s removal from their parents.” See: In re Sara Steed, et al., No. 03-08-00235-CV, Slip Opinion, p. 2.
The thirty-eight mothers in Sara Steed argued that CPS failed to carry this statutory burden and that the state district court abused its discretion in finding the agency had met the burden. The mothers argument must be viewed in historical context. In late 2003 members of the FLDS Church began arriving in Eldorado, Texas where they purchased the YFZ Ranch located several miles outside the town of 2,000. Church members immediately erected their own community at the ranch. The owner of the local newspaper, Randy Mankin, was quoted in a Houston Chronicle article shortly after the raid on the compound as saying: “In four years, they’ve built another town outside my town.”
Eldorado Mayor John Nikolauk was also quoted as saying shortly after the raid that it was widely suspected by local citizens that FLDS members were practicing plural marriages, some with minor girls at the ranch.
“We suspected it was going on, but without a complaint, you’re not going to get in there,” the mayor said. “It’s a closed society. Everyone has empathy for the kids, that they’ll get the breaks a normal kid would have.”
The mayor and Eldorado residents had reasons to be suspicious. In 2004 Warren Jeffs was placed on the FBI’s Ten Most Wanted List for a laundry list of sex offenses, including accessory to rape, sexual conduct with a minor, and incest. He remained a most wanted fugitive for two years until captured in Las Vegas in August 2006. In September 2007 Jeffs was convicted of two counts of being an accomplice to rape and sentenced to ten years to life in prison. He is currently sitting in the Mohave County Jail in Kingman, Arizona awaiting trial on other sex charges, including incest and sexual conduct with a minor.
And in 2005 Rep. Harvey Hilderbran, R-Kerrville, was apparently so concerned about underage marriages at the YFZ Ranch that he offered and secured an amendment to the Texas marriage statutes raising the age for marriage with parental consent from 14 to 16 years of age.
Despite all the “warning flags” of concern, CPS did not make any meaningful efforts to determine exactly what was going on at the compound. The agency waited until the local hot line crisis center informed the Texas Rangers about the two anonymous telephone calls from the 16-year-old alleged abuse victim before it decided to act. The “suspicions” of the local residents and the mayor offered as much “probable cause” to act as the two anonymous phone calls which provided nothing more than secondhand hearsay information by the time it reached law enforcement.
Texas law is quite clear. Children cannot be taken from their parents based on suspicion or supposition, or information based on secondhand hearsay. This was made clear by the appeals court in its ruling in Sara Steed:
“Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. Section 262.201 further requires the Department, when it has taken children into custody on an emergency basis, to make a showing of specific circumstances that justify keeping the children in the Department’s temporary custody pending full litigation of the question of permanent custody. Unless there is sufficient evidence to demonstrate the existence of each of the requirements of section 262.201(b), the court is required to return the children to the custody of their parents.” Id., Slip Opinion, at 3-4.
It is appropriate at this point to compare CPS’ action in the FLDS case with its conduct in the Camilo Garza case. Garza was the stepfather of 3-year-old Catherine Martinez. On Monday, May 19, 2008, the child wet her pants. This incident angered Garza who had been “potty training” the child. Jennifer Latson, writing for the Houston Chronicle, reported that Garza made the child stand in a corner for an hour soaked in urine. The hour passed but Garza’s anger had not. He went into a rage, beating and stomping the child for more than another hour. The child’s frail body succumbed to the unspeakable abuse inflicted by the 41-year-old stepfather who, according to what the girl’s mother told CPS, was high on cocaine and pills.
“The mother described everything from grabbing her [Catherine] by her neck and smashing her head into the wall to kicking her while she was down,” CPS spokeswoman Estella Olguin told the Chronicle.
Police reports said the beating of the 3-year-old lasted forty-five minutes. By this time little Catherine had turned blue. Her mother tried CPR before calling 911.
“That’s when the mother realized it [the beating] had gone further than she had originally thought,” Houston homicide investigator L.K. Lovelace was quoted by the Chronicle.
A court hearing was conducted the following day resulting in two other Martinez children being removed from the custody of Catherine’s mother. CPS filed an affidavit in Catherine’s case that described bruises from head to toe in various stages of healing. Some of the bruising indicated possible sexual abuse.
“When they examined her she had old and new injuries,” Olguin was quoted by the Chronicle. “Bruises on her forehead, back of the head and behind the ear, on the clavicle, back, thighs, shins, feet …”
The Chronicle reported that the young child’s death came during the midst of a CPS investigation of child abuse in the family based upon an “anonymous” report received by the agency last month. In the Garza case CPS did not feel an “anonymous” telephone call was sufficient to warrant the removal of the Martinez children from their mother, even though another report of possible child abuse in the family had been prepared by CPS last November. No action was taken then just as no action was taken on the latest anonymous call. Following young Catherine’s death, CPS reported that one of its case workers did visit the Garza home on April 25, 2008 but did not see any “visible injuries on any of the Martinez children,” according to the Chronicle.
“She [the case worker] didn’t see any signs of abuse, but she still wanted to follow up and talk to family members,” Olguin told the newspaper. “That case has not been completed when this happened.”
This family lived in a 20-by-20 foot shack, according to the Chronicle, that sat in a pasture in a rural area behind Hobby Airport. While the shack had the basic amenities of water, electricity, air conditioning, and a bathroom, the family of five was forced to share a queen-sized mattress. CPS apparently did not find anything troubling about these living conditions.
What is abundantly clear in the Martinez case is that CPS had far more “probable cause” to believe that physical and possible sexual abuse of children was occurring in that 20-by-20 foot shack than was possibly occurring at the YFZ Ranch. There were clear signals of abuse in the Garza shack while there were no signals except those based on suspicion and rumor that abuse was taking place at the YFZ Ranch. The appeals court made that clear when it listed the evidence relied upon by CPS during the April FLDS custody removal hearing to satisfy the requirements of Section 262.201:
- Interviews with investigators revealed a pattern of girls reporting that “there was no age too young for girls to be married”;
- Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
- Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
- Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen;
- The Department’s lead investigator was of the opinion that due to the “pervasive belief system” of FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
- All 468 children were removed from the ranch under the theory that the ranch community was “essentially one household comprised of extended family subgroups” with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch “household”; and
- Department witnesses expressed the opinion that there is a ‘pervasive belief system” among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as they reach puberty, and that this ‘pervasive belief system” poses a danger to the children.
Id., Slip Opinion, at 4-5.
But after thoroughly examining the lower court record, the appeals court found the following undisputed facts:
- The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department’s assertion that the “pervasive belief system” of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
- There was no evidence that the male children, or the female children who had not reached puberty were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
- While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex;
- There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and sixteen were victims or potential victims of sexual or other physical abuse;
- With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
- The [Sara Steed mothers] have identified their children among the 468 taken into custody by the Department, and none of [these] children are among the five the Department has identified as being pregnant minors; and
- The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because “there is a mindset that even the young girls report that they will marry at whatever age, and that it’s the highest blessing they can have to have children.”
Id., Slip Opinion, at 5-6.
The Catherine Martinez case is just one of a legion of such cases in poor, underprivileged communities – and teenage pregnancy has become a fact of life in virtually every high school, rich and poor, in this nation. So there were no truly “shocking” examples of sexual and physical abuse at the YFZ Ranch – certainly nothing comparable to the physical and possible sexual abuse that occurred in the 20-by-20 foot Garza shack. The only evidence offered by CPS to justify its removal of the FLDS children from their parents was the so-called “pervasive belief system” at the YFZ Ranch that is acceptable for young girls to marry and have children. That was a horribly scandalous justification. Until 2005, the entire state of Texas, through its duly elected legislative representatives, believed that it was perfectly acceptable for girls as young as to fourteen to marry with parental consent and have children. The age of marriage today is still 16 with parental consent. The residents of the State of Texas have never objected to young girls getting married, having sex, and giving birth. That is rooted in the historic frontier psyche of the family relationship in Texas – and while women have come a long way from the tradition of being “barefoot, pregnant and in the kitchen,” the male-dominated legislature of this state still believes that young girls can marry, have sex, and give birth if their “mommies and daddies” think it’s okay.
The indisputable fact is that CPS failed miserably to fulfill its statutory duty to present evidence – not personal philosophical conjecture about some ill-defined “pervasive belief system” – that the health and safety of the FLDS children was in “imminent danger.” As the appeals court pointed out:
“ … The Department 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. Nor did the Department offer any evidence that the [Sara Steed mothers’] pubescent female children were in physical danger other than the fact that those children live at the ranch among a group of people who have a ‘pervasive belief system’ that condones polygamous marriage and underage females having children. The existence of the FLDS belief system as described by the Department’s witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in danger. The Department failed to offer any evidence that any of the pubescent female children of the [Sara Steed mothers] were in such physical danger. The record is silent as to whether the [Sara Steed mothers] or anyone in their household are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of [Sara Steed mothers’] children are pubescent children and whether there is any risk to them other than that they live in a community where there is a ‘pervasive belief system’ that condones marriage and child-rearing as soon as females reach puberty.” Id., Slip Opinion at 7.
Finally, the appeals court dealt with CPS’ actions following the anonymous telephone calls from the alleged 16-year-old abuse victim:
“ … there is no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of [the Sara Steed mothers’] children. The evidence is that the Department went to the Yearning for Zion ranch to investigate a distress call from a sixteen year old girl. After interviewing a number of children, they concluded that 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. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of [the Sara Steed mothers].” Id., Slip Opinion, at 8-9.
At the very outset of the FLDS case Arizona authorities knew there was a proverbial skunk in the woodpile. They didn’t want anything to do with the case. As a matter of professional courtesy, the Mohave County sheriff and probation departments talked to Dale Barlow and determined the had nothing to do with the alleged physical and sexual abuse of the anonymous 16-year-old girl upon whom CPS and Texas law enforcement had staked its probable cause to secure a search warrant of the YFZ Ranch.
If any criminal charges should ever emanate from that initial bogus search of the YFZ Ranch, the courts will find more than “fruits from the poisonous tree.” They will find a dead tree. CPS and law enforcement officials elected from the beginning not to follow the rule of law in this massive case which has morphed into a major social and legal embarrassment for the State of Texas which will take years to overcome.
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