Avoiding another Eldorado: balancing parental liberty and the risk of error with governmental interest in the well-being of children in complex cases of child removal.

• Author: Erwin, Andrew T.

TABLE OF CONTENTS INTRODUCTION I. HISTORY A. FLDS 1. Short Creek Raid 2. Eldorado Raid B. Modern Day Communal Living II. THE NEED FOR A FEDERAL STANDARD A. Relevance of a Federal Standard B. Parens Patriae C. Finding Parental Liberty in Substantive Due Process 1. Meyer v. Nebraska, Pierce v. Society of Sisters 2. Prince v. Massachusetts 3. Santosky v. Kramer 4. Troxel v. Granville 5. Circuit Split over Temporary Emergency Action III. FORMULATING AND APPLYING THE STANDARD A. Three Factor Due Process Test 1. Weight of the Parents' Interest 2. Risk of Error and Alternative Measures 3. Costs to the Government B. Applying the Standard in the Texas Case 1. Preponderance of the Evidence 2. Risk of Serious Harm 3. No Time Element CONCLUSION INTRODUCTION

By removing 468 children from an exclusive ranch community on one April day (the Eldorado, Texas raid), Texas Department of Family and Protective Services (the Department) social workers and investigators attracted national headlines. (1) Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) religious sect inhabited the Eldorado community located in the rural western part of the state. (2) The Department began its investigation of the community after someone purporting to be a sixteen-year-old female phoned the department to report physical and sexual abuse occurring within the confines of the ranch. (3) Prior to removing the children, social workers and police investigators interviewed members of the sect (4) and determined that the children faced "immediate danger to [their] physical health or safety." (5) Less than four weeks later, a Texas Supreme Court ruling (the Texas case) sent all of the FLDS children back to their homes and stated that "[the] removal of the children was not warranted." (6) Many people were outraged that children living in close quarters with suspected sex offenders had to return to those conditions; (7) others expressed frustration and anger that the Department racked up a hefty bill for the state without adequate evidence to support its actions or to sustain state intervention. (8)

In defense of Texas's social workers, there is a good reason for them not to have their "ducks in a row" (9) before removing the children: Texas law does not defer to their professional expertise but requires them to formulate a belief as to what an ordinary prudent person would find dangerous to a child. (10) Moreover, the United States Courts of Appeals are split over the federal standard for when child removal is acceptable. (11) Without a clear standard for temporary removal even in traditional cases, social workers face a double-edged sword: risking large expenditures and heavy criticism in fruitless cases (12) or taking no action and facing punishment, termination by their employers, and brutal (potentially deadly) abuse of children by not pursuing credible reports. (13)

A clearly stated standard recognizing the difficulty of investigation and high risk to children in complex cases would lead to greater predictability, less confusion among nonattorney professionals, and more effective collaboration among child protective services workers, investigators, and attorneys. Studies show that in effectively implemented child protection programs, "the ability of committed and empowered professionals to 'transcend professional boundaries' and work collaboratively" allows social workers and state attorneys to form effective partnerships and achieve optimal results. (14) Complex cases feature greater numbers of children, more potential predators, and difficult (or impossible) preintervention investigations. (15) When social workers have to weigh these factors within a complex framework that does not value their professional expertise, they become "frustrat[ed]" and start to "resent" the process instead of working effectively through it. (16)

This Note argues that the United States Supreme Court should adopt a distinct constitutional standard for temporary, emergency child removal in complex cases that comports with Due Process by balancing parental liberty, the risk of error, and the government's parens patriae interest in the health and welfare of children. (17) The importance of a constitutional standard in complex cases stems from three main factors: streamlining and ensuring consistent results when parents of removed children file civil actions for deprivations of their rights by state actors, (18) creating a Due Process standard that would apply to the states through the Fourteenth Amendment, (19) and preventing intentional communities from sheltering themselves in states with unclear standards for removal. The Court adopted a constitutional standard for permanent removal in traditional cases to resolve the first two of these issues; (20) in the same way, federal courts should recognize the essential interests at stake and announce a standard that is functional and predictable in complex cases.

This Note argues that courts should require a showing that children are in substantial danger of harm by a preponderance of the evidence in complex cases of temporary, emergency removal. Because of the imprecision and unpredictability of impending abuse in such cases, courts should not have to find exigent circumstances in order to warrant removal. By choosing to live in isolation from society and associate closely with child offenders, these parents present increased risks that courts must consider when ruling on the permissibility of a removal. If courts apply identical standards in traditional and complex cases, states will not be able to sufficiently protect children facing the unique risks of complex cases because the children grow up confined with predators outside the structure and protection of mainstream society. Part I of this Note summarizes the history of the FLDS sect and the contemporary prevalence of communal living groups, explains that the Eldorado incident is not the first time child removal issues have arisen, and explores Congress's recent commitment to fight crime occurring in these communities. Part II explains the rationale for instituting a federal standard for complex child removal that balances the weight of the government's parens patriae interest in the health and well-being of children against the fundamental right of parental liberty as it has evolved under the Court's Fourteenth Amendment jurisprudence. Part III describes the Supreme Court's balancing test for Due Process, uses this test to formulate a proposed standard, and then applies that standard to the government's 2008 raid in Eldorado. Finally, it concludes that states must elicit proof of a substantial risk of physical or sexual child abuse by a preponderance of the evidence in order to justify temporary removals in complex cases because the potentially devastating consequences of widespread, institutional abuse and the difficulty of investigation must be weighed fairly against the strong parental liberty interest.

1. HISTORY

   After the Texas Supreme Court issued its ruling and FLDS children returned to their homes, United States Senator Harry Reid spoke about the presence of sect groups living on the fringes of society. (21) He labeled such groups a form of "organized crime" and proposed before the Senate Judiciary Committee that federal and state law enforcement officials partner to end the illegal conduct of sects that have "wrongfully cloaked themselves in the trappings of religion." (22) In addition to child abuse, statutory rape, and bigamy, Senator Reid listed "welfare fraud, tax evasion, massive corruption and strong-arm tactics to maintain what they think is the status quo" as offenses committed by sect groups. (23) After making these assertions, he requested the creation of a task force to intervene. (24) Although religious sects and communal living groups may seem like a small problem in the United States, Senator Reid said the problems they present "deserve[] national attention and federal action." (25) A closer examination reveals that intentional communities have presented reoccurring problems with unfortunate consequences.

   1. FLDS

      The FLDS sect did not formally or intentionally split from the Church of Jesus Christ of Latter-day Saints (LDS or Mormon church). (26) The LDS abandoned plural marriage in 1890, (27) under heavy pressure from the United States government. (28) Over time, the rift within the LDS belief system grew, as small communities ignored the orders of the LDS hierarchy and clung to the practice of plural marriage. (29) Mainstream Mormon church leaders labeled these communities "fundamentalist" (30) and attempted to distinguish them from the public's perception of the LDS. (31)

      Congress's initial attempt to criminalize polygamy was the Morrill Anti-Bigamy Act of 1862. (32) This statute, however, did not significantly reduce LDS membership because the nation was preoccupied with the Civil War and the Act was difficult to enforce. (33) After the war ended and Americans turned their eye to protecting the "basic moral fiber" of the nation, (34) the Supreme Court's ruling in Reynolds v. United States (35) upheld antipolygamy statutes and their punishments as constitutional. (36) Subsequent to this ruling, fervent enforcement led to arrests and prosecutions that left at least 1000 Mormons imprisoned and over 10,000 more disenfranchised by the end of the nineteenth century. (37) Wilford Woodruff succeeded Taylor in the office of LDS President, (38) and he issued a "Manifesto" commanding the faithful to obey "the law of the land" and terminate the practice of plural marriage. (39)

      Many Mormons believed this was apostasy, a concession with far too high a price, and refused to accept it. (40) They became the FLDS and moved to isolated communities in order to pursue what they believed was "the everlasting Gospel and the law of Plural Marriage." (41) Since then, authorities near FLDS communities have largely adopted...