April 16, 2008 -- A Texas judge will hold a hearing Thursday morning on what's next for the 416 children seized April 3 from the polygamist ranch in Eldorado, Texas. Here's a rundown of what's likely to happen at the so-called adversary hearing.
What is the judge being asked to decide?
The state Department of Family and Protective Services has had custody of the children, who are members of a fundamentalist Mormon sect, for two weeks. The department is asking the judge to continue this arrangement while officials decide where the children should ultimately live. It also seeks orders limiting the parents' access to their children and requiring the parents to provide their addresses and phone numbers, and undergo counseling and psychological and drug testing.
What is the likely outcome?
The state will probably retain custody, and the judge will probably grant the other orders. There's a good chance, though, that no decision will come on Thursday, given the difficulty of organizing and running a hearing involving so many people and lawyers. Each child is entitled to a lawyer, and as many as 350 lawyers may be at the hearing. One idea under discussion is to appoint one lawyer to speak at the hearing on behalf of each age group: children under 5, teenage girls and teenage boys, for example. If the state does retain custody, the children will be placed with relatives or in foster homes. Otherwise, they will go back to the ranch, perhaps under the supervision of a state monitor.
What does the state have to prove to retain custody?
Texas law requires evidence that the ranch community presents "a continuing danger to the physical health or safety of the child." A "continuing danger" may exist if a "household" includes "a person who has abused another child," the law says. In other words, if any child has been sexually abused by someone in a "household," all the children can be kept in state custody.
So, what's a "household"?
The state will probably argue that the ranch is one household, meaning that sexual abuse of any children there may create a continuing danger to all the children. The state's burden of proof is low: "sufficient evidence to satisfy a person of ordinary prudence and caution." In cases of alleged child abuse, Texas courts usually err on the side of caution in protecting children from abuse, and rule for the state in these temporary custody hearings "virtually all the time," according to University of Texas Law School professor Jack Sampson.
How can the state prove sexual abuse?
It will probably offer evidence that unmarried minors (children under 18) at the ranch are pregnant or have had children. That's a prima face case of statutory rape, which is a crime.
How might the parents rebut the state's case?
That would probably require individual families to present evidence that they are separate "households," that the parents are legally married and that no sexual abuse occurred. But the parents have so far been extremely reluctant to identify themselves or their children, so it seems unlikely that they would come forward in court at this stage. If they did, a separate evidentiary hearing would have to be held for each family, which would extend the proceedings, at least, into next week.
State law requires the department of protective services to identify the parents of each child and seek to "rehabilitate" them through counseling and parenting classes. If the parents refuse to identify themselves, then the children could be considered abandoned, and the state would take custody. Separate hearings for each child will probably be held 60 days and six months after the child was removed from the ranch. The plan for care of the child will be reviewed at each hearing. At a hearing one year after removal, the court can dismiss the case and return the child to his or her home, terminate parental rights or grant custody to the state without terminating parental rights.