Monday, July 5, 2010
Jessica Dixon Weaver (SMU School of Law) has posted "The Texas Mis-Step: Why the Largest Child Removal in Modern U.S. History Failed" (William and Mary Journal of Women and the Law, Vol. 16, p. 1, 2010) on SSRN. Here is the abstract:
This article sets forth the historical and legal reasons as to how the state of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ Latter Day Saints’ parents residing in El Dorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the ‘pervasive belief system’ of a polygamist sect that allowed minor females to spiritually marry older adult males sparked questions of how far the Free Exercise Clause of the First Amendment and the Fourteenth Amendment go in protecting religious freedom and parental rights. Ultimately, there was a failure on both sides of the case – harm caused by the unnecessary removal of hundreds of children who were not in immediate danger of abuse, and harm caused by the return of teenage girls who were at risk for sexual abuse on the Yearning For Zion Ranch. The article concludes by discussing key factors that would have made a difference in the outcome of the case and the impact of this decision on the interrelationship between parents, the state, and the child.