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

By Erwin, Andrew T. | William and Mary Law Review, December 2009 | Go to article overview

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


Erwin, Andrew T., William and Mary Law Review


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. …

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