CNN Sr. Legal Analyst
The Third District Court of Appeals, in Austin, today ruled that the children seized last month at the FLDS ranch must be returned to their mothers. The decision made a lot of sense to me. The nine-page opinion is very much worth reading here.
To me, the key passage in the opinion is this one:
"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."
The question is whether the Texas authorities put forth enough evidence to justify the 'extreme' step of taking the children away from their mothers. The court focused a great deal on the claim by Texas that the 'pervasive belief system' of the FLDS put the children in danger that males were raised to be perpetrators of sexual abuse and females were trained to be victims.
But the point of the Court's decision was that a "belief system," even a dangerous one, was not enough to justify the removal of children from their homes. The government had to do more than prove that FLDS members had bad thoughts; they had to prove bad actions. And that's where the proof was lacking. The government could not prove specific dangers to specific children.
I, for one, have a great deal of sympathy for the Texas authorities who had to investigate this case. It was difficult to find out what was going on inside that compounds, and there were certainly ample grounds for suspicion. But it¹s a good thing that the courts insist on a very high bar for the decision to remove children from their parents. My sense, as well as the appeals' court's, was that the government couldn't and didn't make its case.
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