The Sunday session
Getting two lawyers to agree on anything is tough enough. Try several hundred and a judge who does not want to budge. No wonder it could be days before a settlement is reached on how to return the FLDS children to their parents.
The Third Court of Appeals, backed by the Texas Supreme Court, had the simplest solution: It told 51st District Judge Barbara Walther to vacate her order keeping them in custody. Send them home. Start over, one by one.
But here is where we are.
A small group of attorneys set up a meeting Sunday afternoon with Gary Banks of the Department of Family and Protective Services to try to work out plan for sending the children home.
Word got out. Some attorneys made a mad dash to San Angelo and to join the brainstorming session. Others fumed from afar about not being invited and threatened to complain.
The meeting went for about three hours. Attorneys were mobbed by a small pack of reporters as they left the DFPS office next to Fort Concho.
Good old Fort Concho. The grass has yellowed since we were here seven weeks ago.
Anyway.
The attorneys did not say much. But here is what I have gleaned from a few well-placed sources.
As I understand it, two different proposals will be plopped in Walther's inbox tomorrow morning.
One is an order put together by Texas RioGrande Legal Aid that will probably look a lot like the first order presented to Walther on Friday. It says parents agree to take parenting classes and work with CPS while it continues its investigation into the community. It allows CPS to make unannounced visits during business hours. State oversight would expire 90 days from now.
It covers children of the 38 mothers (and possible those of the other 3 represented by Legal Aid of Northwest Texas) who petitioned the Third Court of Appeals. I have heard mothers signed off on the deal.
The other deal is an agreement, rather than an order, and covers the other mothers and children. It is closer to the proposal Walther put forward on Friday, with more extensive language about what CPS can require of parents. It includes a 120-day expiration clause.
Now, one thing making attorneys mad is Walther's move to vacate only a portion of her order -- the part awarding temporary custody of the children to the state. That left intact the state's findings of abuse and neglect, and thus empowered CPS to treat the parents as it would parents in any substantiated abuse case.
The Third Court of Appeals said Walther could not do that, since there was no evidence of abuse involving the children of the 38 mothers who filed the appeal.
Some questions:
What will Walther do when presented with two plans containing significant differences?
Does signing off on a plan limit the ability to complain later?
That makes me think back to the two-day hearing in April, when Walther limited the ability of attorneys to challenge the state's case and then said they had not raised any concerns -- a point repeated in the state's answer in the Third Court of Appeals.
And finally, will we see a flurry of filings Monday at the Tom Green County Courthouse and the Third Court of Appeals, as individual lawyers try to free -- or hold -- their clients?
Both views are being expressed in and out of court.
Ah, Monday, when the fun begins again.
The Third Court of Appeals, backed by the Texas Supreme Court, had the simplest solution: It told 51st District Judge Barbara Walther to vacate her order keeping them in custody. Send them home. Start over, one by one.
But here is where we are.
A small group of attorneys set up a meeting Sunday afternoon with Gary Banks of the Department of Family and Protective Services to try to work out plan for sending the children home.
Word got out. Some attorneys made a mad dash to San Angelo and to join the brainstorming session. Others fumed from afar about not being invited and threatened to complain.
The meeting went for about three hours. Attorneys were mobbed by a small pack of reporters as they left the DFPS office next to Fort Concho.
Good old Fort Concho. The grass has yellowed since we were here seven weeks ago.
Anyway.
The attorneys did not say much. But here is what I have gleaned from a few well-placed sources.
As I understand it, two different proposals will be plopped in Walther's inbox tomorrow morning.
One is an order put together by Texas RioGrande Legal Aid that will probably look a lot like the first order presented to Walther on Friday. It says parents agree to take parenting classes and work with CPS while it continues its investigation into the community. It allows CPS to make unannounced visits during business hours. State oversight would expire 90 days from now.
It covers children of the 38 mothers (and possible those of the other 3 represented by Legal Aid of Northwest Texas) who petitioned the Third Court of Appeals. I have heard mothers signed off on the deal.
The other deal is an agreement, rather than an order, and covers the other mothers and children. It is closer to the proposal Walther put forward on Friday, with more extensive language about what CPS can require of parents. It includes a 120-day expiration clause.
Now, one thing making attorneys mad is Walther's move to vacate only a portion of her order -- the part awarding temporary custody of the children to the state. That left intact the state's findings of abuse and neglect, and thus empowered CPS to treat the parents as it would parents in any substantiated abuse case.
The Third Court of Appeals said Walther could not do that, since there was no evidence of abuse involving the children of the 38 mothers who filed the appeal.
Some questions:
What will Walther do when presented with two plans containing significant differences?
Does signing off on a plan limit the ability to complain later?
That makes me think back to the two-day hearing in April, when Walther limited the ability of attorneys to challenge the state's case and then said they had not raised any concerns -- a point repeated in the state's answer in the Third Court of Appeals.
And finally, will we see a flurry of filings Monday at the Tom Green County Courthouse and the Third Court of Appeals, as individual lawyers try to free -- or hold -- their clients?
Both views are being expressed in and out of court.
Ah, Monday, when the fun begins again.
22 Comments:
Wacky Walther has no respect for polygamist rights.
SHE NEEDS TO BE REMOVED. I hope she blows a cork tomorrow.
INNOCENSE MUST BE PRESUMED. She cannot do that. She is unfit for the bench.
Thanks Brooke
As walthers plays her hand with that findings of abuse and neglect, it has more to do with liability for state conduct than opening the door to greater control by the CPS.
All in my opinion.
Felon Man,
Unless you live in Texas, you have no say in our judges.
If the people of the 51st District don't like her, then they can remove her by voting in someone else at the next election.
If the Texas House of Representatives is so inclined, then they can file a bill of impeachment and the Texas Senate can try her.
Otherwise, she's still the judge.
Of course, I can understand why you may be too scared to move here - we still arrest and try Bigamists.
Hey bluesman I kinda like your idea of voting her out and maybe we can vote out Sherrif Doorknob at the same time!!
I'd hate to be one of the FLDS attorneys. Trying to balance getting the kids back to their moms as quickly as possible while still protecting their civil rights (and potentially the civil rights of thousands in the future as precedent is established.) It angers me that the attorneys negotiated with CPS instead of going back to 3rd appeals for relief. There is not sufficient evidence for even the intrusiveness of the first agreement, let alone what we're hearing is in this new one.
On the other hand the parents want their children back and the children want to go home.
That the government can hold US citizens hostage like this with no evidence, much less credible evidence - sign or you don't get your children back - is depressing and scary. That state governments are now believing it is within their prerogative to tell parents that they cannot home school their children is scary. What's next? Where does unfettered government coercion end?
Plural - sorry, but there's no such thing as "polygamist rights" any more than there is such a thing as "thief rights" or "drug dealer rights" or any other "insert criminal category" rights in this country. What we have are individual rights to what's outlined in the Bill of Rights and the other Amendments. What we have here is disrespect for individual (and parental) rights.
I'm glad to see the kids are going home. It's a damn shame we had to go through all this drama to force these Nazis to do the right thing according to their own laws.
I am now convinced that this whole thing was a pretext to invent probable cause to gather evidence for a criminal investigation. The children's welfare was a mere afterthought.
I'm saddened the mothers caved in to the state-imposed blackmail of snatching up kids and treating every one of these parents like a criminal with no evidence at all, but I do understand they just want their babies back.
I'm hoping the lawyers don't just abandon them now that media coverage is sure to move on to other matters. These parents will need to continue to assert their rights at each step and we know CPS will continue to abuse its authority. Better to err on the side of caution...blah blah blah.
They might as well just come out and say "Yea, we're wrong and we know it but we always have this handy excuse to fall back on. We never have to get it right."
And txbluesman you are a living douchebag. You couldn't give a fat rat's ass about these or any other children. For you this is only an act of mental masturbation, a means of impressing yourself with your knowledge of the law, which isn't much by the way. The best you've been able to do is provide some links to people who really do have something meaningful to say.
The kids are ready to go home.
Pick them up anytime after 10am.
Order to release children.
http://web.gosanangelo.com/pdf/flds0602.pdf
To avoid bigamy charges in Texas, all you have to do is state that you are unmarried. It is not illegal for a man to have multiple sex partners and to father children with them. You are only guilty of bigamy if you are legally "married" and/or hold out that you are "married".
Sex with underage children is, of course, illegal.
If you are going to have multiple sex partners, learn the rules.
Melanie, although I agree generally with you, polygamist/felons do have rights....
They have the right to remain silent.
They have the right to know that anything they say can be used against them in a court of law.
They have the right to an attorney.
If they can't afford one...
Well, I think you get the general idea.
Jack,
Unfortunately, the FLDS have already held out that they have bigamous marriages. They have documented that fact.
I would plan on a bunch of them going to prison...
Jack,
You are on the right track. This is way more about a few guys having multiple partners (whether they are legally married or of age or not isn't the issue anymore) than it is about protecting children.
We know CPS never had a plausible reason to snatch up these kids en masse as they did. The only possible motive would have to be using child abuse as a means of justifying their gathering of evidence for a criminal investigation.
In other words they sacrificed those babies to get to Warren Jeffs, who is already in prison.
The whole thing is goddamned repulsive in my view.
Now that the kids are going home I suspect that CPS wants to lay low for a while and let media coverage move on to other matters. If I were an attorney representing one or more of those FLDS moms I'd be all over CPS and making sure to keep this in the spotlight.
It is my hope those families who did nothing wrong can get out of Texas as soon as possible. Hopefully that will happen by August 31st.
TBM, true, but I would call those individual, American rights. Those are different from, say, women's rights or minority rights. Those are rights that protect certain people because of who they are. There is no protection for polygamists because it's against the law to be a polygamist. But they certainly have all the legal rights that anyone else has. But their polygamy is not protected, because it's not a "right".
Tx
I would say that the jury is still out on the bigamy charge. We will have to wait and see. My money is on the defense on this one.
The fact that these people were not holding out their status to anyone, (very secretive about their relationships) would seem to be a reasonable defense.
Melanie
Polygamy (or Polyandry) defines sexual relationships, not legal relationships. (at least that is the way I read it).
In all 50 states, consenting adults can have sexual relationships with other consenting adults in private without breaking any laws.
A man can be sexually involved with more that one woman and a woman can be sexually involved with more that one man.
The investigation is of men having sex with underage girls. Those go to jail.
Jack,
That could be true except for a couple of things.
While private sexual relations between consenting adults are protected, the opinion is to be interpreted as "...preserving the traditional institution of marriage," see Lawrence v Texas (O'Connor, Concurring, cit omitted).
The FLDS have a ceremony, refer to each subsequent female spouse a 'wife,' document the 'spiritual' marriages, and are generally known within their community as practicing plural, illegal marriages.
The second search warrant was based in part on the bigamous marriages that the Rangers observed.
I don't see Texas having any problem prosecuting these offenders. The consenting adult violators will be looking at 2-10, the ones that have a bigamous marriage with an underage girl are looking at 5-99 or life.
Impeach Walthers ...
http://www.gopetition.com/online/19682.html
TBM
You may be right but I don't see the State pushing the bigamy thing. If they do, it would most likely be appealed and maybe end up putting your bigamy law in front of SCOTUS. That would be interesting to watch.
I think they will more likely concentrate on the sexual assault cases. Those make for better PR.:)
Jack,
I don't think that there will be a problem with it going to SCOTUS - the last FLDS bigamy / child abuse case that tried was denied cert. and no court has held that bigamy or polygamy is anything but a criminal offense.
Bluesman,
I tend to concur with the folks who don't believe Texas is going to pursue the bigamy issue in this instance....
Opens up a huge, huge can of worms..
It's not, afterall, the same as a person legaly marrying a second person without having ended the existing legal marriage......and I would think that Texas, or any state would be reluctant to take on God, and this group's earthly interpretation of His will....
I think it is especiially true as there is no evidence of the government supporting any of these "unions".....no welfare fraud....no food stamp fraud...yada, yada....
Methinks that you're just going to have to wait till the next average cracker gets caught to have so much fun......
*smile*
For now, I just hope that there are lots of joyful reunions going on and lots of wonderful, special meals together......and lots of kids snuggling down to sleep in their own beds!!!!!
You have to love it:-) The order was signed this morning and the moms are picking up their kids.
All of a sudden the whole thing is no longer news. The blogs aren't putting anything current on and you have to search hard to find a story in the MSM.
A few days and you won't hear any more about it. CPS will quietly slip away with maybe one or two criminal complaint and life will go on for everyone.
I noticed that the FLDS announced that there would be NO underage marriages allowed in the church.
I guess they aren't stupid.
the last FLDS bigamy / child abuse case that tried was denied cert.
Didn't that one include an under-aged bride? That's why.
Show up at court with a polygamy case where all parties are consenting adults, and I am afraid things will be different.
I hope I'm wrong, but I see no reason to think so.
Headmistress,
You may get what you want (cert. from SCOTUS) without the results that it appears that you desire. Remember that Lawrence v. Texas, 539 U.S. 558 (2003), does not deal with the public institution of marriage, and the concurring opinion states, in overturning the sodomy statute that :
“Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-- the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”
Attempts to allow plural marriages under the Constitution have all failed.
See In Re Steed, 131 P.3d 231 (Utah 2006), removal of a judge that practiced polygamy was justified (an FLDS case).
See Bronson v Swensen, 500 F.3d 1099 (10th Cir. 2007), three adults who wish to be issued a marriage license(s) for a polygamous marriage were not allowed to do so.
See White v Utah, 41 Fed. Appx. 325 (10th Cir. 2002), claim that conviction for bigamy violated the Constitution due to his religious beliefs was denied.
See State v Guadagni, 2008 Ariz. App. LEXIS 80 (Ariz. Ct. App. 2008), bigamy, although it could be victimless, was nonetheless a felony offense and the conviction was affirmed.
See Andersen v King County, 138 P.3d 963 (Wash. 2006), a request to be issued marriage licenses for homosexual couples, like requests for plural marriage licenses, was properly denied.
You need to remember that Lawrence does not address a right to polygamy and that the most current SCOTUS case on point states “But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law.” See Romer v Evans, 517 U.S. 620 (1996).
If a polygamy case goes to the Supremes, they will uphold the prohibition.
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