Protecting Our Children and Our Liberty

Visiting Scholars in Practice Program Emory University School of Law May 29, 2009 Protecting Our Childrenand Our Liberty State Power, Individual Rights, and the “YFZ Ranch” Case Tom C. Rawlings Director, Office of the Child Advocate tom@gachildadvocate.org

Who Am I? Why Am I Here?* *James Stockdale, VP Candidate, 1992 Presidential Debates

The Fundamentalist Latter Day Saints • Early 1900s: LDS Church split over polygamy • 1954: Short Creek, Arizona raid • All member of sect arrested • Police took 236 children into custody • 2002: Warren Jeffs Becomes “Prophet” • Convicted of abetting rape. • 2003: 1,700-acre YFZ Ranch purchased in Texas

The Raid • April 3, 2008: Texas CPS raids ranch based on phone calls from alleged “victim.” • Call appears to have been a hoax. • Children taken without court order pursuant to statute authorizing such when child in “immediate danger.” • 468 children removed. • Judge Barbara Walther holds cattle-call mass trial.

The Raid • CPS allegations: • 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;

The Raid • CPS allegations: • The Department's lead investigator was of the opinion that due to the "pervasive belief system" of the 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"

The Follow-up • 38 mothers appeal; Texas Court of Appeals reverses. • None of their children pregnant; • Boys as well as girls? Why? • Texas Supreme Court Agrees • Removal unwarranted • No immediate danger • Less drastic options available. • In re Tex. Dep't of Family & Protective Servs., 255 S.W.3d 613 (Tex. 2008)

The Rights at Stake • Individual Liberty • Substantive and Procedural Due Process • “the constitutionally protected liberty interests that parents have in the custody, care and management of their children.” • Right to individualized treatment • Notice and an opportunity to be heard • Fourth Amendment • Unreasonable searches, “seizures” of children

The "right to conceive and to raise one's children" is recognized as one of the "basic civil rights of man." [Stanley v. Illinois, 405 U.S. 645, 652(1972)] Familial integrity is protected under the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Ninth Amendment. Id. . . . Children, likewise, have an equally substantive due process right to be raised and nurtured by their parents.” • Ault v. Speicher, 2009 U.S. Dist. LEXIS 23495 (S.D. Ill. 3/25/09)

The Government’s Interests • Investigation • “the liberty interest in familial integrity is limited by the compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents.” • “The right to familial integrity, in other words, does not include a right to remain free from child abuse investigations.” • Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. Pa. 1997)

The Government’s Interests • Investigation • What about Searches and Child Interviews? • Covered by the Fourth Amendment • Texas Rangers did have a search warrant in FLDS case. • Children, however, were seized without court order.

The Government’s Interests • Warrant Requirement? • Exceptions: Exigent Circumstances • Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 421 (5th Cir. Tex. 2008) • CPS went into home without permission to interview children. • Fourth Amendment regulates social workers’ investigations. • “A statutory command to investigate allegations within twenty-four hours is not a license to ignore the Fourth Amendment, and it is unreasonable for the defendants to think otherwise.” • One-time incident, alleged abuser not in home, “routine” interview of child = no exigent circumstances.

The Government’s Interests • Warrantless Searches • Special Needs Exception • Some rational reason other than law enforcement. • Testing of maternity patients to determine cocaine use without consent violates 4th amendment despite “benign” intent. • Ferguson v. City of Charleston, 532 U.S. 67, 86 (2001) • No such reason in abuse/neglect cases. • Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003) • Gates: • No special need. “The purpose of TDPRS's entry into the Gateses' home--the investigation of possible child abuse--was closely tied with law enforcement.”

The Government’s Interests • What must the state show to search, seize, interview a child without a warrant or court order? • Reasonable expectation of privacy? • Clothed or nude, public or private setting, home or school • Exigent circumstances? • Probably cause/articulable suspicion?

The Government’s Interests • Intervention Short of Removal • What must the state show to intervene? • Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. Pa. 1997) • “A state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” • Hearsay, red flags, anonymous reports • FLDS case: telephone call turned out to be a hoax.

The Government’s Interests • When is Removal Proper? • Pre-adjudicatory v. Adjudicatory • FLDS Case – appellate courts addressed standard at adjudicatory hearing • “There is no evidence that this danger is `immediate’ or `urgent’ as contemplated by section 262.201 with respect to every child in the community. The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal.” • Texas Court of Appeals

When is removal proper? • Texas Fam. Code 262.201(a): At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent . . . entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.

When is removal proper? • “The court may make and modify temporary orders `for the safety and welfare of the child’, including an order `restraining a party from removing the child beyond a geographical area identified by the court.’ The court may also order the removal of an alleged perpetrator from the child's home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.’ • In re Tex. Dep't of Family & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008)

When is removal proper? • What about pre-adjudicatory? • Here, children removed pursuant to Tex. Fam. Code 262.104: (a) If there is no time to obtain a temporary restraining order or attachment before taking possession of a child consistent with the health and safety of that child, an authorized representative of the Department of Family and Protective Services, a law enforcement officer, or a juvenile probation officer may take possession of a child without a court order under the following conditions, only: (1) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (2) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child; (3) on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse;

When is removal proper? Tex. Fam. Code 262.104 (cont’d) (4) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse; or (5) on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the parent or person who has possession of the child is currently using a controlled substance as defined by Chapter 481, Health and Safety Code, and the use constitutes an immediate danger to the physical health or safety of the child. (b) An authorized representative of the Department of Family and Protective Services, a law enforcement officer, or a juvenile probation officer may take possession of a child under Subsection (a) on personal knowledge or information furnished by another, that has been corroborated by personal knowledge, that would lead a person of ordinary prudence and caution to believe that the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine.

When is removal proper? • Was this an emergency?

When is removal proper? • If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent; there is no reason to excuse the absence of the judiciary's participation in depriving the parents of the care, custody, and management of their child. • Nicholson v. Williams, 203 F. Supp. 2d 153, 237 (E.D.N.Y. 2002). • “Emergency circumstances mean circumstances in which the child is immediately threatened with harm.” • Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir. N.Y. 1999)

When is removal proper? • “The plain language of the section and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim.” • Nicholson v. Scoppetta, 3 N.Y.3d 357, 378-379 (N.Y. 2004)

Reasonable Efforts • To prevent removal and to allow the child to return home. • Required in every state by ASFA • What are they? • Nicholson v. Williams, 203 F. Supp. 2d 153, 237 (E.D.N.Y. 2002). • Case involving children routinely removed from their mothers, who were victims of domestic violence.

Reasonable Efforts

Reasonable Efforts? • As Texas Supreme Court noted, CPS may request temporary court orders "for the safety and welfare of the child“ such as • "restraining a party from removing the child beyond a geographical area identified by the court". • ordering the removal of an alleged perpetrator from the child's home • Ordering that a person assist the Department in its investigation. • Prohibiting interference with an investigation In re Tex. Dep't of Family & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008)

Reasonable Efforts? • 12 men face charges related to underage marriages • All but one of children returned • If the allegations are correct that men like Warren Jeffs were promoting underage marriage, what could/should CPS have done short of removing the children?

Procedural Due Process • Right to Counsel • Lassiter v. Dep't of Social Services, 452 U.S. 18, 33 (1981) • Right to Effective Counsel • Can 100 lawyers in a courtroom be effective?

Georgia • “To authorize even a loss of temporary custody by a child's parent on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” • In the Interest of D.N.K., 282 Ga. App. 430, 433-434 (2006)

Georgia • “no evidence of parental unfitness or evidence of how the environment adversely affected the child” • In the Interest of T. L., 269 Ga. App. 842, 845 (2004)

Georgia • But, what is the standard? • Little discussion of reasonable efforts requirement. • NO cases discuss it in relation to whether child should be removed. • Little discussion of immediate harm. • Except in terms of “adverse effect.” • Little distinction between criteria for services and criteria for removal.

When Does State Intervention Rise to a Level Requiring Due Process? • Forbidding visitation? • “Safety Plans”? • Placement with one parent or a relative? • Examining child without parental consent? • Removal to foster care?

Safety Plans • “Voluntary” arrangements in which parents involved in a CPS investigation agree place their children with a relative, or one parent moves out of the house, or parent agrees to keep child away from an alleged abuser. • Temporary agreement made in lieu of CPS removing the child.

Safety Plans • Can infringe liberty rights • Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. Pa. 1997) • Can’t do it without reasonable grounds. • Not really voluntary. • Dupuy v. Samuels, 465 F.3d 757 (2006). • Nothing wrong with them, generally • Amount of process due may be less. • Ault v. Speicher, 2009 U.S. Dist. LEXIS 23495 (S.D. Ill. March 25, 2009) • Case plan requiring children to live with GPs “until such time as others saw it fit to allow them to return to living with Plaintiff” was by no means "efficient" or "well tailored"

Threats and Opportunities • National trend toward keeping children with their families means fewer severe interventions • But: fewer severe interventions means less opportunity for judicial review. • No judicial hearing and opportunity to be heard. • No opportunity to have substantiation of abuse reviewed by an impartial hearing officer • No opportunity for appointed counsel

Here in Georgia…… • Diversion • Increasing bypass of juvenile court system • Use of Safety Resources • Safety Plans • Examples

DHR SLIDE

RELATIONSHIP OF SAFETY RESOURCE CARETAKER TO CHILD IN GEORGIA DHR SLIDE Data from SHINES

DHR SLIDE ADVANTAGES OF KINSHIP CARE • Provides a safety net for children who might otherwise be in the foster care. • Provides children with a sense of family support. • Children have more frequent visits with birth parents and siblings. • More likely to accept sibling groups. • Maintain cultural continuity and community ties such as with school and friends. • Provides an opportunity for permanence should a child enter into legal custody of the state. • In Georgia, 30% of the children who entered care were placed with individuals who served as their Safety Resource. Source: National Survey of America’s Families, Urban Institute (2001).

DHR SLIDE LIMITATIONS OF KINSHIP CARE • 41% live in families with income less than 100% of the federal poverty level (FPL). • 36% live with a caretaker without a high school degree. • 55% live with a single parent. • 19% live in households with four or more children. Source: Children Cared for by Relatives, Jennifer Ehrle Macomber (2001).

DHR SLIDE LIMITATIONS CONTINUED • Less likely to receive payments and services such as training, assessments, counseling or visits from an agency. • May not meet the health and safety standards of the more regulated forms of foster care. • Many safety resources are grandparents coping with reduced income levels and increased health problems. • Un-supervised arrangement. Source: Kinship Care by Pamela Gough (2006).

CHILDREN IN SAFETY RESOURCES 90 DAYS OR MORE BY REGION DHR SLIDE

DHR SLIDE

DHR SLIDE LENGTH OF TIME IN SAFETY RESOURCES (MONTHS) 18 = Statewide

The Latest Twist • “Safe Families for Children” Program • Funded by DHR with $200,000 from CAPTA Funds • Volunteers serve as “safety resources” for children referred by DFCS • Summary of Program

So What? • Whose rights are implicated in these safety plan and safety resource cases? • Should we be concerned? • If so, what should we do about it?

FLDS Raid: The Aftermath • Did it backfire? • “For 50 years, [the sect] used the Short Creek raid as reason to keep their people secretive and isolated,” Utah Atty. Gen. Mark Shurtleff said in an interview. “We said that was not going to happen again. Well, it has happened again.” FLDS leaders, Shurtleff said, will probably cite the Texas raid “as a reason why they should not trust the government, and instead go to their [religious] leaders first” with complaints of sexual abuse.

Protecting Our Children and Our Liberty