The civil government-and its courts in particular-are to be a "terror to evildoers." Unfortunately, it is often the "evildoer" itself. Lawless child welfare agencies and courts are usurping the God-given authority of parents and literally ripping families apart. At an increasingly alarming rate, children are being separated from parents and siblings and forced into the homes of stranger foster families, group homes, or Residential Treatment Centers where they are given psychotropic drugs not approved for use in children.1
Child welfare agencies, such as Child Protective Services (CPS) of Texas, are the embodiment of "the statist plan of salvation."2 A huge bureaucracy fueled by government and private grants seeks to transform parenting in accordance with the dictates of the state rather than "transforming the regenerated man and His world through the Holy Spirit."3
CPS cases are not my usual area of practice. I discovered what was happening in the area in 2008 when the 415 children of the Fundamentalist Latter Day Saints were seized from their parents and from the community of the Yearning for Zion Ranch in Eldorado, Texas. Along with other attorneys unaccustomed to this area of practice, I volunteered to represent the parents.4 During my representation, I began to experience a rising concern over what I saw as clear perversions of American jurisprudence.
After that experience, I was compelled to start helping parents when and where I could. With each case, my concerns have grown. It is apparent to me that the state is trying to be "as God" and that the judges have developed too cozy a relationship with the agencies.
A Lawless Agency
One of the most troubling aspects of child welfare law is that an investigation can be started on the basis of an anonymous report. Thus, parents often come under scrutiny because of feuds with neighbors, an angry ex-spouse, a jealous coworker, or a disgruntled employee. I suspect in one of my cases that CPS workers called in a report themselves in order to influence a judge, off the record, in the midst of a hearing.
These anonymous reports may bring a CPS worker to your child's school where your child will be interviewed. In a recent case in San Marcos, Texas, CPS allegedly conducted a strip search of a child because of a dime-sized bruise on the back of a child's leg. The child was also interviewed without the knowledge of her parents.
Reports can also bring the CPS investigator to your door. Many parents, not knowing their rights, allow these workers into the home without a warrant or court order. Sometimes, the workers are accompanied by police. In some of these cases, the policeman will insist that the CPS worker does not need a warrant and will barrel into the house past parents or housekeepers.5
Families that homeschool are of particular interest to CPS, although Texas CPS is forbidden from using homeschooling as a trigger for an investigation.6 However, in all of the four cases I have handled, CPS has used the fact of homeschooling in court in order to criticize the parents.
Because homeschooled children are not "monitored" by public school teachers or easily available in the public schools, CPS can be aggressive in its attempts to get into the home to interview the children without a warrant or court order. Many parents, out of ignorance and a misplaced confidence that they will "clear things up quickly," make the mistake of allowing CPS into their home. One attorney, who often represents homeschooling parents, told me that one of his families allowed an investigator into the home. The family's eight-year-old daughter was washing dishes. On the investigative report, that simple act was transformed into "eight-year-old girl playing with knives." This is the kind of spin that CPS investigators will put in their investigative reports.
In one case, CPS has criticized a mother for homeschooling her five-year-old immune-compromised child who had undergone a bone marrow transplant within the last year. In another, CPS and the guardian ad litem were critical of a family that was homeschooling a preteen daughter (who was behind because of public schooling) in an effort to improve her academic performance (and to protect her from the advances and influence of an older boy and his parents who thought that a twelve-year-old girl should have the power to override her parents' wishes that she not date). The attitude of one of the guardian ad litems in the case-who is an attorney that works solely in this area-was particularly concerning. She seemed to believe that a twelve- or thirteen-year-old girl should hold veto power over her parents in matters of schooling and location of home. (The family was living in the country.)
The five-year-old child above who underwent the bone marrow transplant was taken because her mother followed the directions of the hospital social worker, resulting in easily reversible dehydration. That girl's three-year-old brother was taken a couple of weeks later for equally appalling reasons: during the time that the mother was making heroic efforts to find and fund a bone marrow transplant for the girl, the younger boy begin to exhibit problems with his baby teeth (probably attributable to medications he was given when young). The mother, in the midst of a divorce, applied for Medicaid to cover treatments. Her marital status precluded coverage, and she could only apply once every six months. Upon her divorce, her ex-husband was ordered to obtain insurance coverage, but he failed to give her the insurance card upon multiple requests.
The little boy allegedly exhibited some trouble talking, and the mother had him evaluated by a government program. His birth date precluded an assessment by that program. Having experience with her daughter, this mother began to work with her son in homeschool because she did not want to place a three-year-old in public school. She wanted to gather resources to go to a private therapist. But then, the children were taken. What's more, they were taken by a judge who professes to be a Christian, whose own children go to a Christian school, and who were even homeschooled when younger. The judge stated that one of the reasons for seizing the little boy was to get him assessed for speech in order to receive services through the government schools!
The above mindset was depressingly apparent in the hearings for the two children previously described. CPS was both relentless and ridiculous in its presentation. The mother had worried about and acted upon the child's illness "too much," and that's "medical neglect." By "failing" to take the son for speech therapy and dental treatment on CPS's unknowable time frame, she had "neglected" him. By giving more attention to a sick child than the well ones, she "neglected" the well ones. That accusation endangers every family with a special-needs child. I am sure, under present conditions, that had my family been so scrutinized, I would have been seized by the state because my baby sister is profoundly retarded and much of the energy of the entire family was directed toward her care.
CPS does not consider the family as a whole. It atomizes the members and looks at the pieces to pass judgment. The result is that it demands perfection without context, and there is no tolerance for what it perceives as shortcomings. There can be no surprise then at H. L. Mencken's conclusions concerning bureaucracy:
It is the invariable habit of bureaucracies, at all times and everywhere, to assume ... that every citizen is a criminal. Their one apparent purpose, pursued with a relentless and furious diligence, is to convert the assumption into a fact. They hunt endlessly for proofs, and, when proofs are lacking, for mere suspicions.7
Worldviews in Conflict
It has become apparent to me that the position of CPS-and the members of the cottage industry surrounding it-is that parents should be constantly monitored by the government for any perceived missteps in their dealings with their own children. Parents, in their view, should not have unfettered authority to make decisions regarding education, religious training, or inculcation of morality. This arises from a conflict of worldviews. As Tim Lambert of the Texas Home School Coalition8 told me:
I do believe there is often a conflict of worldviews between CPS caseworkers and Christian families. It has been reported to me on numerous occasions that CPS workers believe that Christian families who believe in the Bible and spanking are targeted for special focus as abusers. In addition I have seen such families denied adoption for similar reasons. Many of these caseworkers are young and unmarried and have an unrealistic view of family life.
I also believe that some judges do usurp the God-given authority of the family in CPS cases. This is often done by allowing CPS caseworkers to interfere in a family with little or no evidence of abuse or neglect. Judges often fail to hold CPS accountable to the clear restraints of the law. I believe there are two reasons for this. One is the often quoted maxim of seeking to protect children, even if this means violating innocent families at some time. The other reason is that it is politically expedient to give CPS whatever they seek than to rule against them and have something happen to the child.
Because many homeschooling parents have become informed about their rights with regard to CPS investigations, special interest groups comprised of children's "rights" advocates, adoption organizations, and others who monetarily benefit from the seizure of children prevailed upon the Texas Legislature in 2009 to pass SB 1440.9 SB 1440, an originally innocuous bill, was amended at the last minute to allow CPS entry into homes without the traditional protections afforded by warrants or court orders. The addition of the amendment was stealthy and deceitful and was caught only because of the vigilance of the Parent Guidance Center of Texas.10 A mammoth campaign was launched to convince Governor Rick Perry to veto the bill. After receiving 17,000 calls against SB 1440, he vetoed it.11
Splintering the Family
Often, after an investigation begins, CPS will attempt to prevail upon parents to sign what is called a safety plan. This could be an agreement by the parents to place the child with a relative or to require one of the parents to move out of the house. This accomplishes the dividing of the family without a court order. The investigators will often lie to parents to convince them to sign the safety plan. They will claim that they will take the child and the parents "will never see them again" if the parents refuse. If the parents sign the plan, they can no longer present a united front against the usurpations against their family. Family members who take the child may be threatened with removal of the child, or their own children, if they don't cooperate. If one parent moves out, that leaves the other to deal with such threatening behavior alone. The family is atomized and often decapitalized bec
ause of the expense of maintaining two households, in addition to legal and other expenses.
Another aspect of reporting concerns the "required reporter." Depending on the state, those may be licensed health providers, teachers, mental health professionals, and law enforcement officers.12 Because failure to report may have occupational or even criminal consequences, required reporters often err on the side of reporting. Recently, a hospital was in the news for reporting a new mother after she tested positive for drugs. The truth was that the mother had eaten a poppy-seed-covered bagel and the hospital's testing protocols were faulty.13
The poppy seed story had a happy ending, but many parents who have experiences with hospitals don't fare so well. Large hospital systems now employ "child abuse teams" manned by doctors who don't treat children, but act as forensic "specialists" who handle the reporting of alleged abuse or neglect. It appears that these teams are increasingly being used to punish parents who vigorously advocate for the care of their children by the hospital or who want second opinions.
Johana Scot of the Parent Guidance Center, located in Texas, shared with me the following observation regarding her work with parents:
Now that hospitals are being equipped with teams of supposed child welfare experts and professionals, the number of "abused" children is going up in every hospital. Even the ordinary broken arms and sprained ankles of childhood are being scrutinized by these teams, which will contribute to the rise of false accusations of child abuse. Child Advocacy Centers (where children are routinely transported for forensic interviewing during child abuse and neglect investigations) are starting to buy bone scanning cameras to equip their clinics.
The recurring theme in these types of referrals is a parent who has been seeking treatment for a child but decides to disagree with a doctor or nurse and even a dentist. Suddenly, the parent, who has never been seen or suspected as being abusive or neglectful before when in contact with these medical professionals, is now the subject of a CPS investigation. Since the referral is a medical professional, the parent stands little chance against the experts and they also hold the power over the medical records at this point.
In one of my cases, a huge children's research hospital chose to report a parent for medical "neglect" the day after the parent decided to pull the child from a study (the treatment was completed months prior) because of the hospital's demands that the parent fly from Texas to New England every other week. The report was made six days after the supposed neglect, the circumstances of which arose from the hospital's travel instructions to the parent.
In two other Texas cases, the reports of medical neglect appear to have arisen out of professional jealousy directed against a very successful and dynamic researcher who was actually helping the children she was also studying. In Seattle, Washington, a hospital reported parents of a premature baby boy with complications for requesting a second opinion about a procedure and wishing to transfer the baby to a children's hospital.14 Parents of special-needs children are often targeted. As Johana Scot told me in my interview with her:
Specifically for special needs children, the number of interactions with medical professionals (simply due to the nature of medical issues and necessary procedures) combined with the authoritarian mentality of hospitals, their overseer Child Protection Teams, and the lack of respect for parental authority in medical decisions, [means] we are seeing the "medical neglect" and "medical child abuse" accusations rising at alarming rates. It's as if the CPS system has found the perfect way to go after the parents with insurance as well as continuing to persecute the parents having to utilize Medicaid as it has always done.
In fact, hospitals will even make this threat against the guardians and surrogates of adults. As I was writing this article, I was contacted about a hospital that discharged an ill and medically unstable elderly man, telling the surrogate decision-maker that the man no longer merits continued treatment due to his "quality of life." The hospital threatened to call Adult Protective Services to remove the surrogate's guardianship if she persisted in her advocacy for the man.
Statist Definitions: Shifting Sand
In each of the above cases, the family members had gone to great lengths to advocate and obtain treatment for their loved ones. With regard to the above-mentioned children, CPS charged the parents with "medical neglect." In the case of my client, she was actually blamed for following the instructions of the hospital. The child abuse team doctor actually testified that she should have known to ignore the social worker's instructions and assurances that the social worker had consulted with the doctor about those instructions! In the other two Texas cases, the attorneys for CPS and child-abuse team doctors are claiming that procedures and treatments administered to the children were unnecessary and blamed the parents for them having occurred, despite objective testing and the expertise of the treating physicians.
The cases involve accusations of the parents that wildly veer from "the parents are too involved and controlling of their ill children" to "the parents didn't do enough for the children." The absurdity of these statements made by CPS and the hospitals is shocking.
Incentives to Split Families Into Pieces
Federal and state law mandates that CPS make reasonable efforts to keep a family intact, rather than removing the child. However, monetary incentives provided by federal funding motivate otherwise.
State Senator Nancy Schaefer, who was also a past President of Eagle Forum of Georgia, became a stalwart foe of CPS in Georgia after study of that agency. She lost her seat because she published her findings.15 She spoke to the issue of monetary incentives for taking children, rather than reunifying families. In her report, she addressed the veritable cottage industry that has grown up around CPS courts like "state employees, lawyers, court investigators, court personnel, and judges. There are psychologists, psychiatrists, counselors, caseworkers, therapists, foster parents, adoptive parents, and on and on, [who] are looking to the children in state custody to provide job security. Parents do not realize that social workers are the glue that holds ‘the system' together that funds the court, the child attorney, and the multiple other jobs including DFCS's [Division of Family and Children Services] attorney."
Further, Senator Schaefer found that:
The Adoption and the Safe Families Act, set in motion by President Bill Clinton, offered cash "bonuses" to the states for every child they adopted out of foster care. In order to receive the "adoption incentive bonuses" local child protective services need more children. They must have merchandise (children) that sell and you must have plenty of them so the buyer can choose ...
[T]he incentive for social workers to return children to their parents quickly after taking them has disappeared and who in protective services will step up to the plate and say, "This must end!" No one, because they are all in the system together and a system with no leader and no clear policies will always fail the children.16
(Senator Schaefer was recently killed in what was believed by authorities to be a murder-suicide.)17
The incentives to take and keep children are manifested in the state's attitude toward parents. Although CPS is supposed to provide "services" for reunification, such services are not universally available. Moreover, some of the services, like parenting classes, are often no more than information-collecting sessions on the parents. Every action of the parents is scrutinized and evaluated for its impact during court hearings and trials.
One very disturbing aspect of these "services" is that they are entirely based on humanist presuppositions. In a hearing on such "services" before the Christian judge whom I mentioned earlier, my client's pastor and I argued that the individual counseling to which my client was to be subjected, should be by that pastor and based upon the Holy Bible. The pastor testified that the greatest transformative power is Jesus Christ. The judge ruled that, although my client could have counseling with the pastor, the state-licensed, secular counselor had more "education" and could deal better with my client's problems. It is obvious that this Christian judge has fallen into the trap of neutrality as described by Gary Demar in his book Myths, Lies & Half Truths: How Misreading the Bible Neutralizes Christians:18
So then, for a Christian to adopt the neutrality myth is to fall into the humanist trap, to believe that religious convictions are reserved for the heart, home, and place of worship, while the affairs of this world are best handled by using reason, experience, and technical expertise devoid of religious assumptions and convictions.19
State Agencies as Infallible Entities
One characteristic of these child welfare agencies is that they will very rarely admit to mistakes themselves. In the name of saving children, these agencies harm children. The separation of the children from their mothers in the FLDS case was described by outraged mental health workers who witnessed it:20
On the awful day that they separated the mothers and children the level of cruelty and lack of respect for human rights was overwhelming. Crying, begging children were ripped away from their devastated mothers and the mothers were put on buses to either return to the ranch or to go to shelters. Most went to shelters because they were told they would be able to see their children if they did not return to the ranch. This, of course, was another lie ... The floor was literally slick with tears in places. A baby was left in a stroller without food and water for 24 hours and ended up in the hospital. A 4-year-old boy was so terrified that he snuck away and hid and was only found after the coliseum (had) been emptied the next day.
I witnessed a small boy, maybe 3 years old, walking along the rows of cots with a little pillow saying, "I need someone to rock me, I just want to be rocked, I want to find a rocking chair." Two CPS workers were following him and writing in their notebooks but not speaking to him or comforting him. Sally and I started toward him but his 8-year-old brother came and picked him up saying, "I will take care of him" ... That little boy will always be in my mind. How can a beautiful healthy child be taken from a healthy, loving home and forced into a situation like that, right here in America, right here in Texas?
On the last day of my stay at the coliseum (April 24), the mothers had been removed ... The children had cried bitterly on the removal of the mothers, and they were now with strangers ... Children were grabbing toys from others and using the toys as play weapons against each other and their "captors." In my estimation they were acting out their fear and anger. One little boy of about 4 was frantically running from the CPS workers, avoiding capture in every way he could. Once caught, I held him firmly in my arms while he wept that he didn't want them to take his mother.
Another child was hospitalized and not allowed the company of his mother, despite insistence by the ER doctor that she be brought to the child's bedside. I have a copy of the letter the incensed doctor wrote to the governor.
In a very recent case in Alaska, a case worker went to a government school and took the wrong children into custody. The terrified mother thought that her children had been kidnapped.21 In these cases, the state minimizes the impact of such horrific neglect and abuse committed by them upon children and families, brushing such things off as trivialities, while roundly condemning parents for even the smallest mistake.
It is particularly galling that, in my previously mentioned case, the mother had her ill child taken away due to lab findings indicating dehydration (caused by the mother following the instructions of the hospital), which was easily corrected, yet no CPS worker has ever suffered the consequences of dehydrating the FLDS child left for twenty-four hours unattended in her stroller.
This, of course, is a characteristic of the messianic state so often and well described by R. J. Rushdoony. The godless state presumes to the infallibility reserved to God.22 We are to submit every thought to Christ and leave nothing on the table. Yet, the state makes the same claim, leaving nothing on the table and making increasingly totalitarian claims restricting the freedom of the family in the interests of "public policy" defined by it.
This attitude of infallibility leads to ludicrous results. One of my clients recently had visitation with her daughter and brought her three-year-old boy to the visitation. The supervising CPS worker, a young, childless woman, then testified that my client's mothering skills are bad and that the three-year-old should be removed from her home because the mother read to the five-year-old daughter while the three-year-old climbed on the picnic table.
Infallible Agencies Equal Unaccountable Agencies
Not only is CPS not held accountable for mistakes internally, the courts have held that CPS cannot be held accountable for failing to save a child from abuse, even when the agency knows that a child is in danger.
(a) A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.
(b) There is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect.23
Federal law, in a weak nod to the authority of family, requires reasonable attempts at reunification. This is attempted by the state agency providing "services," which consist of parenting classes, therapy, and other humanist solutions. However, as stated above, these services result in the gathering of information to use against the parents. The testimony gathered from the visitation described above is a good example.
In order to give the appearance of complying with federal law, states will often massage reunification figures. Johana Scot of the Parent Guidance Center told me in during my interview of her:
When talking about reunification statistics one needs to always ask what the operational definition of "reunification" really is. Some states like to add together the totals of actual biological parent reunifications (which are historically low) with the totals for relative placements and call that the "family reunification" statistic. This will inflate the statistic to make the state look better to those unfamiliar with the child welfare system. It is why so many organizations wrongfully say that the majority of children return home. Nationally, true biological parent reunifications are statistically lower than adoptions in most every state. This is not surprising given the fact that no state makes a dime when children are returned home while every state receives perverse monetary incentives for each adoption they can consummate. And one may be surprised to learn that the state does NOT have to return the bonus money if the adoption breaks down later. The child can go through the same system all over again (albeit with a new adoptive name) and the state could receive a bonus again for the same child!
The Lawless Courts
Long ago, our courts abandoned the fact that law comes from God, attempting to transfer His sovereignty to the "law" of man, with disastrous effect. In his landmark book Sovereignty, Rushdoony writes:
Beginning with Justice Holmes and on to the present, American justices have held that religion and morality have nothing to do with law, which is the will of the state.24
Statutory law in CPS cases is very similar to administrative law, wherein courts give tremendous discretion to the state in its interpretation of the law (and what constitutes abuse and neglect) and similar discretion in its rendition of the "facts." Moreover, in the first stages of one of these cases, should the judge agree that CPS take custody of the child, near-total discretion is given to the agency to place the child where it wishes. Thus, the agency-in the guise of protecting the child-is given free rein to question the child and then to represent to the judge its versions of the "facts" as gleaned from the child in order to retain the child in its custody until trial.
Therefore, other than the main trial, the most important hearings in a CPS case are the Adversary Hearings (in cases where children have been removed on an emergency basis) and Removal Hearings (where CPS seeks a court order to remove the child from the parents). The parents are given very little notice of these hearings, perhaps only three days' notice. In some counties, CPS lawyers schedule ex parte hearings with judges for orders of removal, giving the parents no notice and no opportunity to defend their families against the removal of the children.
Parents rarely have attorneys representing them at these critical initial hearings. The courts, however, do appoint attorneys for the children, and CPS has its attorneys present. Parents are attacked from all sides without any meaningful defense.
Even if parents are able to obtain attorneys for these cases, the attorneys have very little time to prepare. Such built-in time crunches become a recurring impediment against the parents throughout the case. Further, low rates of compensation for lawyers practicing in this area-whether paid by the courts because of appointment or by cash-strapped parents-make effective representation difficult if not inaccessible.
In working with attorneys who regularly do this type of work, I discovered that they are continually rushing from hearing to hearing and have very little time to prepare. The affected parents are usually cash-strapped and typically pay attorneys very little, while court-appointed attorneys receive a pittance compared to what most trial lawyers can earn. That economic reality means attorneys for the parents must maintain very busy dockets to survive financially. That is a significant problem, given the intensive nature of these hearings.
In an article written for The Michigan Child Welfare Law Journal, Vivek Sankaran, a clinical assistant professor of law in the Child Advocacy Law Clinic at the University of Michigan Law School, writes:
The disincentives to zealous lawyering created by the structure are transparent. Attorneys are encouraged to practice relaxed advocacy, do little work outside of the courtroom, and push their clients towards entering into pleas ...
Presently, the skewed system has affected the quality of legal assistance ... Attorneys maintain caseloads by the hundreds, and in some courthouses, substitution of counsel is retained due to scheduling conflicts ...
Statistics reveal that relaxed advocacy has become the norm in the system. Decisions to remove the child from the home are rarely challenged, and the overwhelming majority of child protective cases are resolved with pleas.25
Even when parents have excellent representation at these hearings, I have observed sometimes that judges ignore the law and evidence and seize the child. As Tim Lambert states in the quote above, they are often fearful of returning a child, even if CPS has failed to meet its burden. So, to cover themselves politically, they will err on the side of taking or keeping a child from its home to avoid possible consequences. This conduct, of course, is a blatant violation of God's law regarding evidence and the role of judges.
It's apparent to me that the judiciary has developed too cozy a relationship with CPS and other parties that are aligned against the parents. The Lord commanded that courts not be "respecters of persons." Our civil government lawlessly commands otherwise. The current body of statutes is completely based on "the best interests of the child." The child is considered a separate party from its parents. The family is considered the enemy by CPS and the attorney ad litem and guardian ad litem for the child.
As applied in CPS cases, "in the best interest of the child" appears to mean that time-honored and tested rules of evidence should be discarded in court proceedings. Hearsay and opinions without the laying of foundations (such as personal knowledge or expertise) are routinely admitted into evidence.
States have created so-called "cluster courts" solely to hear CPS cases. The judges in these courts are Associate Judges. In Texas, that means that they have not been elected in conformance with the Texas Constitution. I've yet to be personally in a cluster court, but attorneys who have inform me that these courts preside over what attorneys call "rocket dockets." This means that the judges severely limit the duration of the hearings. Given that CPS presents first, the parents are given short shrift in putting on their cases.
None Dare Call It Collusion
While working on the FLDS case, I made a disturbing discovery about the relationship between the judiciary and CPS. In 2007, the Texas Supreme Court created the Permanent Judicial Commission for Children, Youth and Families.26 The Texas Supreme Court directed the Commission to:
• develop a strategic plan for strengthening courts and court practice in the child-protection system;
• identify and assess current and future needs for the courts to be more effective in achieving child-welfare outcomes of safety, permanency, well-being, fairness and due process;
• promote best practices and programs that are data-driven, evidence-based, and outcome-focused;
• improve collaboration and communication among courts, the Department, attorneys, and partners in the child-protection community;
• endeavor to increase resources and funding needed for improvement, and maximize the wise and efficient use of available resources;
• promote adequate and appropriate training for all participants in the child-protection system;
• institutionalize a collaborative model that will continue systemic improvement beyond the tenure of individual Commission members;
• oversee the administration of designated funds, including the Court Improvement Program (CIP) grants; and
• provide an annual progress report to the Court.27
Notice that the directives mention nothing about justice. A review of the materials created by this commission lauds the collaboration of judges with CPS and other stakeholders. Once per quarter, a Supreme Court Justice, family law judges, CPS, and CASA (Court Appointed Special Advocates who serve as guardian ad litems) meet with each other, and other "stakeholders," to collaborate. Note that CPS and CASA are parties to the suits that these judges have been tasked to hear. There are no parents who've been wronged by CPS on this commission.
I stumbled upon this because I saw references to this commission preparing a training session for those lawyers appointed as attorney ad litems for the FLDS children. I examined the training material and found that the contents were virulently critical of the FLDS religion and practices. I also found that, after the children had been taken, a PowerPoint presentation was shown to the commission members at one of its meetings. Many of the judges present at that meeting went on to preside over hearings concerning those children.
I have attended a few of the commission's meetings, and the worldview being fostered there is disturbing. During a meeting held in August 2009, one of the judges asked that the commission come up with ideas to support the ratification of the United Nations' Declaration of the Rights of the Child.
At that same meeting, the commission was discussing a database it has set up that will be available to judges. CPS would input data, which has not been admitted into evidence, and judges hearing cases would have access to it. This appears to me to be a violation of the Sixth Amendment right to confront witnesses. One attorney, who sometimes represents parents, stood up and stated as much and expressed shock that the judges and attorneys in the room had not considered this. Crickets chirped.
This commission is considering ways to accelerate putting children into permanent placement. This would influence courts to run roughshod over parents in order to fulfill this edict coming from the top. In fact, the commission seems to be determined to reach into local courts in order to control how these cases are heard. I am certain that there are local courts that are inefficient and fail to run their dockets in conformance with what this commission considers "best practices," but the fallibility of men doesn't justify building such a Tower of Babel.
Follow the Money
Prior to the forming of this commission, proponents admitted that some might see this collaboration as undermining the impartiality and independence of the judiciary. Even the proponents of the commission acknowledged that it may raise concerns.28
Why would the Texas Supreme Court risk the impartiality and independence of the judiciary by creating a commission wherein judges would collaborate with some who repeatedly appear as litigants in the court? The short answer is ... money. As documented in the publication of the newsletter of the commission, collaboration and judicial involvement in the "process" (outside of the traditional role of judging) is "mandated as a condition for receiving federal Court Improvement Program (CIP) grants."29 The newsletter goes on to state:
"As judges, we need to see ourselves as part of the system-as true partners," said Judge Rucker, who is a member of the newly formed Supreme Court Permanent Judicial Commission for Children, Youth and Families, that now administers Texas' CIP grants. "Judicial leaders are taking collaboration seriously, and not just every few years when the CFSR comes to town," he said. Among other activities, commission members and staff conduct weekly meetings with state-level CPS officials as well as Office of Court Administration staff, Texas Center for the Judiciary staff, and others. More recently, Texas Legislature representatives have begun attending. Judge Sage volunteered her time during the on-site review by participating as a member of the Texas CFSR Review Team, as has Tina Amberboy, Executive Director of the Commission.30
Given the financial incentives, it is probable that the independence and impartiality of the judiciary is threatened in other states as well. To students of jurisprudential history, this may not be surprising.
Usurpation of Power
Many of us decry activist judges who usurp powers reserved to other branches of government. However, we should equally fear it when the executive branch usurps the powers and authorities of the judicial branch.
An informative writing on this subject is the Introduction to Harold J. Berman's masterpiece Law and Revolution: The Formation of the Western Legal Tradition. Professor Berman exposes the threats to Western jurisprudence and liberty in the form of the executive branches' usurpation of the role of independent judges interpreting and enforcing the laws. Rather, as stated by Gary North in his comments on this book:
He argued that the West is moving into a new tyranny. We are losing the old system in which independent judges interpret the law. Instead, executive bureaucracies interpret the laws, which they then enforce. The advent of the administrative law judge is the mark of this transformation. The legal system is becoming an extension of state planning. This state is expanding at the expense of liberty.31
Although CPS cases are presently heard by judges who are not employed within the agencies, I submit that the CIP grant requiring "collaboration" is an attempt to capture the judiciary to do the bidding of the agency. It is a hallmark of "capture" that judges are receiving information from the agency that is outside both the record and the knowledge of the parents and their attorneys.
Professor Berman traces the transformation of Western jurisprudence to the Russian Revolution of 1917, which "inaugurated a new era in which ‘socialist' law is replacing bourgeois or capitalist law" as the Soviets sought to control all economic life.32 In his view, that Revolution has profoundly affected Western jurisprudence, and not just in the economic realm. He states:
The fundamental changes have taken place throughout the West not only in what has traditionally been called public law and private law but also in what might be called social law, including family law as well as laws affecting race relations, class relations, and relations of the sexes and of generations. Marriage and divorce have increasingly become largely a consensual matter, while parental power over children has been substantially reduced.33
Professor Berman attributes these changes to "radical centralization and bureaucratization of economic life,"34 shifting judging from an independent judiciary to administrative judges employed by the agencies who are parties to the dispute. He notes that this shift is spilling over to other areas such as family law.35 What more cogent example of this than the specter of a state Supreme Court organizing a commission that seeks to centralize power over lower courts in order to standardize court practices?
Because federal grants, coming from the executive branch at the federal level, require the courts to shed independence in favor of collaboration with state agencies, I submit that we are seeing a shift in jurisprudence in CPS courts from traditional, Biblically inspired and based Western jurisprudence to a centralized, bureaucratized system that will heavily favor state power over the authority of the family. "The wicked frame mischief using law" (Ps. 94:20).
I am so disturbed about all this that I am creating a not-for-profit dedicated to protecting families from these depredations. I hope to establish a network of Christian lawyers dedicated to advancing His Kingdom and protecting the authority of the family against the state. As Rushdoony has stated, we are in a state of war "between heaven and humanism, war between the Almighty God and the totalitarian state."36 We must never despair in this battle, for agencies such as CPS are ultimately doomed:
God will not share His glory nor give it to another. Even as the builders of the Tower of Babel were confounded and scattered, even as Pharaoh and his host were destroyed and his troops swallowed up in the Red Sea, even as God declared His judgment on Amalek-and Amalek is gone-even as Assyria and Babylon, and the empires of old, were brought down to dust, so those who today deny His infallible word and ascribe infallibility to the things of man shall be brought low by the Lord of Hosts. "This is the victory that overcometh the world, even our faith."(I John 5:4)37
1. Carole Keeton Strayhorn, Texas Comptroller, Forgotten Children, a Special Report on the Texas Foster Care System, 205.
2. R. J. Rushdoony, Sovereignty (Vallecito, CA: Ross House Books, 2007), 10.
3. Ibid., 8.
4. Amy Joi O'Donoghue and Ben Winslow, "Attorneys agitated about FLDS family plans; judge questions why Books of Mormon were removed," May 19, 2008, Deseret News, http://www.deseretnews.com/article/700227301/Attorneys-agitated-about-FLDS-family-plans-judge-questions-why-Books-of-Mormon-were-removed.html.
5. Gates v. Texas Department of Protective and Regulatory Services, U.S. App (5th) 1675.
6. Texas Home School Coalition, http://www.thsc.org/Categories.aspx?Id=Government_Agency_Directives.
11. Sarah Foster, "Sweet Victory: Texas Governor Vetoes ‘Take Away Your Child Act,'" NewsWithViews.com, June 24, 2009, http://www.newswithviews.com/NWV-News/news151.htm.
12. Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws, Child Welfare Information Gateway, U.S. Department of Health & Human Services, http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.cfm.
13. Charles Davis, "Losing a Baby Over a Poppy Seed," Criminal Justice, November 2, 2010, http://criminaljustice.change.org/blog/view/losing_a_baby_over_a_poppy_seed.
14. Tracy Vedder, "Two months of turmoil: State tries to take couple's ‘miracle baby,'" KATU.com-Portland, Oregon, November 15, 2010, http://www.katu.com/news/local/108257989.html.
15. "The Corrupt Business of Child Protective Services," November 16, 2007, from the legislative desk of Senator Nancy Schaefer 50th District of Georgia, Georgia General Assembly, http://fightcps.com/pdf/TheCorruptBusinessOfChildProtectiveServices.pdf.
17. Mashaun D. Simon and Aaron Gould Sheinin, "Murder-suicide possible cause of deaths of former state Sen. Schaefer and husband," Atlanta Journal-Constitution, March 27, 2010, http://www.ajc.com/news/georgia-politics-elections/murder-suicide-possible-cause-408021.html.
18. Gary Demar, Myths, Lies & Half Truths: HowMisreading the Bible Neutralizes Christian (n.p.: American Vision, 2004).
19. Ibid., 81.
20. Brian West, "Chairman says Texas CPS workers mistreated FLDS," Deseret News, May 14, 2008, http://www.deseretnews.com/article/700225591/Chairman-says-Texas-CPS-workers-mistreated-FLDS.html.
21. Rosemary Shinohara, "Social worker picks up wrong kids at elementary school," Anchorage Daily News, November 19, 2010, http://www.adn.com/2010/11/18/1562091/social-worker-picks-up-wrong-kids.html#disqus_thread.
22. R. J. Rushdoony, Systematic Theology (Vallecito, CA: Ross House Books, 1994), 7.
23. DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=489&invol=189, also at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0489_0189_ZS.html.
24. Rushdoony, Sovereignty, 134.
25. Vivek Sankaran, "Procedural Injustice: How the Practices and Procedures of the Child Welfare System Disempower Parents and Why it Matters," The Michigan Child Welfare Law Journal (Fall 2007).
28. Scott McCown, "Proposed Judicial Commission on Children, Youth, and Families," Center for Public Policy Priorities, September 25, 2007, http://www.cppp.org/research.php?aid=716&cid=4.
29. Better Courts for Kids and Families: Newsletter of the Permanent Judicial Commission for Children, Youth and Families, vol. 1, no. 1, April 2009, 6.
31. Gary North, "Four Articles That Will Change Your Thinking, I Hope," November 18, 2010, published at www.garynorth.com.
32. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition.
33. Ibid., 35, 36.
34. Ibid., 34.
35. Ibid., 34.
36. Rushdoony, Systematic Theology, 7.
- Jerri Lynn Ward
Co-founder of Garlo Ward, P.C., Jerri Lynn Ward provides legal representation in the areas of business and commercial litigation, including complex healthcare and regulatory litigation, and health facility operational matters. Her background and prior experience also includes litigation work in the areas of insurance defense, employment, toxic tort, products liability, medical malpractice, business and commercial, as well as criminal matters.