CPS, Judge Threatened American Foundation
By Kurt S. Schulske

Special to the San Angelo Standard-Times

Thursday, June 19, 2008

Like Sarah Holland in her June 12 Viewpoints column ("CPS deserves praise for raid on YFZ Ranch"), I have watched the tragic unfolding of Child Protective Services' attack against the Fundamentalist Church of Jesus Christ of Latter Day Saints near Eldorado. My perspective, however, differs from hers. There is more at stake in San Angelo than just child safety. The misconduct of CPS and Judge Barbara Walther threaten the rule of law and due process - foundations of our American way of life.

What did due process require in this case? CPS must prove three specific things about you and your children before they can carry them away from you. The Texas Supreme Court found that CPS had proven none of the three about any of the FLDS families whose children they removed. Three strikes, you're out.

The most important of the three strikes is that CPS must prove that some danger to the physical health or safety of your child was caused by your act or failure and that remaining in your home is contrary to that child's welfare. CPS can't just say it's so. They must prove it in an individualized adversary hearing in which you can rebut CPS's individualized accusations against you. It doesn't work to hold a trial for the whole neighborhood.

The venomous vacuity of Holland's article is astonishing. She reprises so much empty propaganda with such faux indignation - "brainwashing, conspiracy, child abuse, statutory rape, fraud and adultery" - it's hard to know where to begin a response.

Six years before the American Revolution, William Pitt proclaimed in Parliament, "Unlimited power is apt to corrupt the minds of those who possess it." As a subject of King George, how well he knew. Governments can inflict fearful damage on innocent people when officials are not required to follow the rules. That is what occurred in this case with horrific consequences that will reverberate for decades.

John Adams, defending the British soldiers accused of murder in the Boston Massacre, told the jury, "Facts are stubborn things and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of the facts and evidence." So many want to believe awful things about the FLDS, we must be careful.

The Texas Legislature has given clear instructions as to when CPS may remove children from their homes. The Texas Supreme Court and Third Court of Appeals both declared that CPS violated those instructions and that none of the FLDS children should ever have been removed. Neither court granted any more authority over the FLDS to Walther or CPS than what they had already in the Texas statutes. They said simply, CPS and Judge Walther, you screwed up. Send the children home. If any CPS intervention later becomes warranted, the law gives the judge the power to order it. Follow the law.

Abuse of power often begins when sensational rumors are spun into a "noble cause" that appears to justify authorities in violating the rule of law. Authorities are rarely prosecuted for these violations, so they tend to move aggressively. Later, they insist their motives are good and, therefore, their violations should be overlooked. Former North Carolina prosecutor Mike Nifong - who lied to the court in a trumped-up rape prosecution of Duke University lacrosse players - followed this pattern and ended up in jail.

But the harm inflicted by Nifong on his victims was minor compared with independent eyewitness accounts of the distress, humiliation and physical abuse inflicted by CPS on the men, women and children of the YFZ Ranch. It should shock the conscience of the people of Texas. One witness described it as a Nazi concentration camp. Another, who saw the floor of the building "slick with tears," said it made her "ashamed to be a Texan." This was not Texas' finest hour.

Yet, CPS investigator Angie Voss and Schleicher County Sheriff David Doran have both been quoted - even after the Supreme Court condemned their actions - as saying they still believe they did the right thing in removing the children. In fact, they violated the laws of Texas while trampling underfoot highly valued relationships between parents and children. (No, I am not referring to alleged spiritual marriages.) This was a breakdown in the rule of law. Due process - that which most differentiates the United States from Mexico, Cuba, China and Russia - will be a casualty if Texans fail to demand accountability from those involved in this atrocity.

Texas law narrowly restricts CPS because parent-child relationships are a higher good than almost any other, save life itself. The Texas Supreme Court has said that "a parent's right to uninterrupted access to and care of her child ranks as far more precious than property rights" and, therefore, the law provides "heightened protection" to that "most essential and basic aspect of familial privacy - the right of the family to remain together without the coercive interference of the awesome power of the state." Family relationships are vastly more important than property. The agony that separation inflicts on parents and children is similar to - but longer lasting - than the pain of death. Thus, removal should be a last resort to be used only in the most extreme cases by an impartial judge, who considering all relevant evidence, approaches the task with reverence for the godlike power she wields.

No matter how much we might disagree with what we understand of the religious teachings of the FLDS, our American respect for due process of law should moderate our response to accusations against any of them. The facts - found by an impartial court - must fit the law and must relate to specific individuals, not to an entire group.

For example, Holland in her article points to a photograph that purports to show Warren Jeffs kissing a teenager as evidence of a crime. But Holland knows nothing about this photo or what it says about anyone connected with the controversy. It can be fairly understood, if at all, through forensic testing and courtroom examination. Yet Holland relies on this photo - and other even less reliable rumors - to stridently condemn every family who lived in the community.

Beyond un-American, such blanket denunciations are dangerous. It is easy for the majority to point at today's oddball minority and jeer. But today's majority can quickly become tomorrow's minority through natural disaster, demographic anomalies or immigration. What do today's West Texans want to teach newcomers about the rule of law? Whatever you teach, they will use on you or your descendants tomorrow.

Let the government violate the law today to "protect children" and you empower it, tomorrow, to violate your rights in pursuit of other objectives. How will you redraw the line once you have crossed it "just this once"?

This isn't just a case about child endangerment; It's about the rule of law and the American system of government. Those who commit such crimes against the rule of law - whatever their office - should pay a price in court or at the ballot box. If they don't, the rest of us someday will.

Kurt S. Schulzke is an attorney in Woodstock, Ga.