Legal Commentary

A Good Decision

By TChris

As TalkLeft recently observed, the Texas Supreme Court affirmed a lower court ruling that invalidated the groundless seizure of 468 children and the subsequent separation of most of those kids from their parents. This editorial wisely echoes Jeralyn's sentiments: "It's time to return these children to their parents." (more ...)

From the beginning, state Department of Family and Protective Services officials have argued that the culture of the polygamous FLDS sect is abusive, subjecting under-age girls to arranged marriages with older men and a lifetime of sexual servitude. They have argued that the culture raises girls to be victims of sexual abuse and raises young men to be abusers.

There may be truth in that. But under the law in the United States, a culture cannot be indicted. Only the specific people who commit specific crimes against specific victims can be. Thank goodness.

Some of the minors at the FLDS compound may have been coerced into sexual unions with adults, but there was never any evidence that prepubescent children were at risk, or that male children were at such risk of immediate harm that their wholesale removal from their parental homes was justified. If authorities in Texas had such evidence (beyond the probably bogus information upon which the warrant was based), they should have limited the seizure to the specific children who were specifically at risk.

But that's the whole point. Officials must meet the burden of proof in individual cases.

It's much too easy for social workers to say "remove the child." By erring on the side of "protecting" the kids, they insulate themselves from criticism if a child who is left with a parent is later abused. But that short-sighted thinking ignores the abuse that is inherent in removing children from their parental homes and forcing them to live with strangers under conditions that isolate them from their parents. And it ignores the constitutional right of mothers and fathers to parent their own children. While that right is not unyielding -- it may give way when parents are abusive or neglectful -- it is substantial.

The Texas case should remind us that in the absence of compelling reasons to fear that a child is in immediate danger, the child should be left with his or her parents until authorities convince a judge that the need to protect the child outweighs the harm that is inevitably caused by separating kids from their mothers and fathers.

Full post as published by TalkLeft on June 04, 2008 (boomark / email).