Legal Constraints on Child-Saving: The Strange Case of the Fundamentalist Latter-Day Saints at Yearning for Zion Ranch

• Author: Catherine J. Ross
• Position: B.A., Ph.D., J.D. Yale University. Professor of Law, The George Washington University Law School
• Pages: 361-410

LEGAL CONSTRAINTS ON CHILD-SAVING:

THE STRANGE CASE OF THE FUNDAMENTALIST

LATTER-DAY SAINTS AT YEARNING FOR ZION RANCH

CATHERINE J. ROSS*

It may seem coun terintuitiv e, but children i n foster care are more likely

to achieve pe rmanency if we take the legal right s of their p arents seriou sly.

When all s tate actors—from social work ers to judges—consider parental

rights before removing children from their famil ies or terminating parental

rights, subsequent adoptions are more likely to be insulated from ongoing

litigation, or in the worst ins tance, revoc ation. I am a strong proponent of

children’s rights.1 In the context of the child welfare system, however,

respect for the rights of parents can protect children from unnecessary and

frightening dis ruptions.

The doctrine of parens patriae, which justifies state intervent ion into

families to protect children from serious harm, allows the state to pierce

the veil of family integrit y.2 When there is a concrete basi s for such

intervention, the state should consider the child’s nee d for continuity and

stability as it develops case plans. Children, li ke p arents, have a stake in

the i ntegrity of their fami lies, whet her bi ological or adoptive.3 Moreover,

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* B.A., Ph.D., J.D. Yale Univ ersity. Professor of L aw, The George Washin gton

University Law School; M ember, Institute o f Advanced Stud y, Princeton N .J. 2008–2009.

The author thanks Th e George Washington Univer sity Law School and Dean Frederick

Lawrence for r esearch support, Kasia Solon for reference support, and Rebecca Louie (GW

Law School 2009) for ex ceptional research assistance.

1 See, e.g., Catherine J. Ross, A Place at the Table: Creating Presence and Voice for

Teenagers in Dependency Proceedings, 6 NEV. L.J. 1362 (2006); C atherine J. Ross, An

Emerging Right for Mature Minors to Receive Information, 2 U. PA. J. CONST. L. 223

(1999) [hereinafter Ross, An Emerging Right]; Catherine J. Ross, From Vulnerab ility to

Voice: Appointing Counsel for Children in Civil Litigation, 64 FORDHAM L. REV. 1571

(1996) [hereinafter Ross, Vuln erability to Voice].

2 See generally Nao mi Cahn & Catherine J. Ross, Parens Patriae, in THE CHICAGO

COMPANION TO THE CHILD (forthcoming 20 09).

3 MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS 174–78 (2005);

Catherine J. Ross, A Delicate Task: Balancing the Rights of Childr en a nd Mothers in

Parental Termination Proce edings, 33 STUD. L. POL’Y. & SOC’Y. 163, 191–96 (2004)

[hereinafter Ross, A Delicate Task]; Catherine J. Ross, Families Without Paradig ms: Child

(continued)

362 CAPITAL UNIV ERSITY LAW REVIEW [37:361

risks to all children in the system would be diminished if we could move

closer to realizing best pr actices: consistently applying legal st andards,

following best therapeutic practices, delivering well -targeted services, and

reserving removals for the most eg regious cases.4

This article exami nes the legal doctrines with which child welfare

workers should be familiar when they intervene in family life, especially

when they take drastic measures such as removing chil dren from their

parents or filing a peti tion fo r termin ation of paren tal ri ghts. I then argue

that taking the legal rights of the p arents seriousl y would have resulted in a

more effective response to an incident that received a great deal of national

attention in 2008—the allegati ons of neglect and abuse of hundreds of

children in a com munity of Funda mentalist Latter- Day Saints in Texas.

Part I of this article discusses the role of the fo ster care system in

providing children available for adoption and introduces the concept of

wrongful terminatio ns of parental rights that resu lts in adoptions being

overturned by courts. Part II summarizes the constitutional doctrine of

parents’ rights, it s application t o decisions to remove children from their

homes and t o terminate parental rights, and th e silence of social science

literature about t he importance of parental liberty interests i n children as

part of t he legal framework that gov erns the child welfare syste m. Pa rt III

discusses what child welfare workers need to know—but often do not—

about the applicable law. Part IV examin es how Texas offici als respond ed

to reports of child abuse at the Yearning for Zion Ranch outside Eld orado,

Texas, as well as the judicial response to the state’s act ions. Part V

proposes a plan of action for the state that would have better respected the

rights of the parents and th e community while offe ring more effective

protection to the ch ildren who need ed it.

I. ADOPTIONS OUT OF THE CH ILD WELFARE SYSTEM

In the United States, prospective adoptive parents generally look to

three sources for adoptable children: newborns being given up by their

birth parents; internat ional adoptions, which are be coming less accessible

Poverty and Out-of-Home Placement in Historical Perspective, 60 OHIO ST. L.J. 1249,

1291–93 (1999).

4 Issues su ch as the role of poverty, r ace, homelessness and cultural difference in the

child welfar e system are beyond the scope of th is paper, but often play a role in decision-

making.

2008] LEGAL CONSTR AINTS ON C HILD-SAVING 363

as countries of origin impose more restrict ions o n placement; and children

who have been in the chi ld welfare system. 5 My focus here is on the third

group.

The Adoption and Safe Families Act of 1997 (ASFA) made

permanency “in a safe and stable home, whether it be returning home,

adoption, legal guardianship , or another permanent placement” th e goal for

all children who enter foster care.6 In keepin g with its laudato ry g oal of

moving children quickly out of the child welfar e sys tem int o a permanent

home, ASFA for the first time imposed an innovative federal timelin e,

intended to insure that no child lin gered for years in foster care limbo.7

ASFA was designed to accomplish two specific reforms: “[p]reventing

children from being returned to unsafe homes , and finding safe and loving

and permanent h omes for children who canno t be reunified wit h their

families.”8 To accomplish these goals ASF A for the first time mandated

that states “shall” move t o terminate paren tal rights in order to place

children into adoptive or other permanent homes in two categories: (1)

cases where it is apparent from inception or soon thereafter that t he child

can nev er return home safely because of “aggravated circumst ances” such

as torture, fel ony assault, or the d eath of an other child i n the home; and (2)

all cases i nvolving children who “have b een in foster ca re under the

responsibility of the State for [fifteen] of the most recent [twent y-two]

months” (th e “15/22 months rule”). 9 Under ASFA the state need not make

any effort s to p reserve or reu nify t he family in cases which i nvolve

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5 See CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., ADOPTION

OPTIONS: A FACTSHEET FOR FAMIL IES 2–4 (2003), available a t www.childwelfare.gov/pubs/

f_adoptoption.cfm.

6 Memorandum on Adoption and Alternate Permanent Placement of Ch ildren in the

Public Child Welfare Sys tem, 32 WEEKLY COMP. PRES. DOC. 2513 (Dec. 14, 1996).

7 Ross, A Delicate Task, sup ra note 3, at 164.

8 Stephanie Jill G endell, In Search of Permanency: A R eflection on the First Three

Years of the Adoption and Safe Fa milies A ct Implementation, 39 FAM. C T. REV. 25, 25

(2001) (quoting 143 CONG. R EC. H2017 (daily ed. Apr. 3 0, 1997)). For a mo re detailed

discussion of ASF A’s legislative history, design, an d impact, see Catherine J. Ross, The

Tyranny of Time: V ulnerable Children, “Bad” Mothers, and Statutory Deadlines in

Parental Termination Proceedings, 11 VA. J. SOC. POL’Y & L. 176 (2004) [hereinafter

Ross, Tyranny of Time]; Ros s, A Delicate Task, supra note 3.

9 Adoption and S afe Families Act o f 1997, Pub. L. No. 105-89, § 103(a)(3)(E), 111

Stat. 2115, 2118.