This article was updated May 30 to include a ruling by the Texas Supreme Court. On June 2, the state of Texas began returning the children to their parents.
A little boy, maybe 3 years old, walks past row after row of cots arrayed in a sports coliseum in Texas, carrying a little pillow. “I need someone to rock me,” he says. “I just want to be rocked, I want to find a rocking chair.” Two adults, whose job is child protection, are following him. But they make no move to comfort him. They just follow him and write in their notebooks.
Other children, with their mothers, are jammed into a building dating to the 1800s, with no air conditioning and no indoor plumbing. Chicken pox quickly spreads; many children come down with diarrhea, some are hospitalized. At night, hostile overseers keep the women awake with their loud conversations and sometimes shine lights in their eyes.
More than 400 children and their mothers endured those conditions in the first days after Texas Child Protective Services raided the Yearning for Zion Ranch in Eldorado, according to the only independent eyewitnesses–mental health professionals brought in by the State of Texas. (Their statements were published in the Salt Lake Tribune.) The state alleges that because some of the mothers are underage, all of the girls are at risk of sexual abuse and all of the boys are at risk of being “groomed” to be abusers.
The physical conditions under which the women and children were held ultimately improved, but the emotional conditions deteriorated, as the children, even toddlers, were separated from their mothers.
Indefinite detention without meaningful hearings, inadequate defense counsel, standards of proof that range from low to nonexistent and, in most states, secret tribunals, may sound like the Bush Administration’s war on terror. In fact, it’s all standard operating procedure as part of America’s war on child abuse. But mass detention is new. And now, with its raid on the compound of the Fundamentalist Church of Jesus Christ of Latter-Day Saints in Eldorado, the State of Texas has filled that last gap–complete with their own private Guantánamo.
A Texas appeals court ruled May 22 that the state had no right to take many of the children. But the children remain scattered throughout Texas, as CPS appeals the decision.
On one point, defenders of this indefinite detention are right. The issue on which this massive detention turns is not religion–the issue is alleged rape. But the allegations against the detainees at Guantánamo also are serious and real. There, the issue also is not religion but terrorism. What’s happening in Texas may be worse than Guantánamo. For starters, the victims are children.
When children are needlessly put into foster care, they lose not only mom and dad but often brothers, sisters, aunts, uncles, grandparents, teachers, friends and classmates. For a young enough child, it’s an experience akin to a kidnapping. One recent study of foster care “alumni” found they had twice the rate of post-traumatic stress disorder of Gulf War veterans and only 20 percent could be said to be “doing well.”
Another study comparing outcomes for 15,000 children found that even maltreated children left in their own homes with little or no help fared better, on average, than comparably maltreated children placed in foster care.
And in the case of the Eldorado 400+, even the State of Texas doesn’t claim most children actually were abused; officials say they took the children because they might be abused at some point in the future.
None of this means no child ever should be taken from her or his parents. It means that foster care is an extremely toxic intervention that must be used sparingly and in small doses. In the case of the Yearning for Zion ranch, Texas prescribed megadoses of foster care.
There is one group of foster-care children for whom the trauma of separation is even worse: those taken from battered mothers who allegedly “failed to protect” them from abuse. Taking children under these circumstances is, in the words of one expert, “tantamount to pouring salt into an open wound.” “Failure to protect” is the only allegation against the mothers of Eldorado. The way Texas has handled the Eldorado case can be boiled down to a single sentence: Pass the salt.
Emotional harm often occurs to children even when foster homes are good. The majority are. But the rate of abuse in foster care, both in family foster homes and in institutions, is far higher than generally realized and far higher than in the general population. Texas institutions are particularly notorious; they were the subject of two scathing reports issued in 2004 by the former State Comptroller. And if the Eldorado detentions go on long enough, many children who probably never were abused on the Yearning for Zion ranch probably will be abused in foster care.
And, arguably, some have been mistreated already. Texas authorities repeatedly have said one reason they separated the children from their mothers was to make it easier to get the “real stories” out of the children–a tactic that amounts to emotional waterboarding. There also are allegations that authorities pretended to believe some adults they held–including a 27-year-old who produced a driver’s license and birth certificate–were minors, in order to question them without their lawyers present.
All this suffering is unnecessary because, from the beginning, there has been an alternative. It may have been necessary to take some of the children from the ranch. But none needed to be taken from their mothers.
Meanwhile, back at the ranch, claims made to justify the raid are eroding. Remember the reports that a document had been found on the ranch concerning cyanide? It turned out to be part of a first-aid manual. Remember the claims about young children with broken bones? Looks like the proportion of such children is about the same as in the general population. And every day more “underaged” mothers turn out to be adults.
Through it all, Texas CPS has made one point over and over: aside from the size of the case, there is nothing unusual here. We treat all families this way.
They’re right. If anything, the families of the Eldorado 400+ are getting better treatment than the overwhelming majority of families who lose children to state child welfare agencies every year.
Those families are overwhelmingly poor and disproportionately minority. If they get legal representation at all it’s likely to be from an overworked public defender who just met them in the hallway five minutes before the hearing. Texas is one of relatively few states where these hearings are public. In most states, children’s fate is decided behind closed doors.
At the moment, the fate of the Eldorado children rests with the Texas Supreme Court, but every day foster care is prolonged, more damage is done. The fate of the 300,000 of other American children taken from their parents every year rests with all of us. The usual answers from the left, “more money” and “more training,” won’t fix this. The Eldorado children could have been put up in five-star hotels and the separation from their mothers still would have been devastating. No one says the solution to Guantánamo is better-trained guards.
Neither money nor training is a substitute for due process. At-risk children will be safer when we demand open hearings, higher standards of proof, and meaningful legal representation for indigent families. They will be safer when we demand civil liberties without exception. Shortcuts that bypass civil liberties will win neither the war on terror nor the war on child abuse.
Upholding an earlier appeals court ruling, the Texas Supreme Court ruled May 29 that the Texas Child Protective Service had no right to take many of the children, and the decision is widely seen as applicable to all of them. The vote was six to three, but even the three dissenting justices said the state had shown enough evidence to take only girls who had reached puberty. For the boys and the younger girls, the decision was unanimous.
A spokesman for the state child welfare agency says the agency “will take immediate steps to comply.” But in the world of child welfare, “immediate” is a flexible term. For now, the children remain where they have been since April 3–in foster care, almost all of them with strangers, most of them in institutions.
Some commentators have suggested that the courts served as a check and balance on CPS and so, the system worked. It didn’t. More than enough time has passed to risk traumatizing some of the children. And it isn’t over.
One prominent family law professor in Texas already told the Wall Street Journal that “the return of all the children is certainly not mandated.” He said CPS may try to keep custody of some of the older girls.
In addition, the Supreme Court gave CPS and the trial court broad latitude to impose conditions on the families once they are reunited. Imposing some conditions in some cases makes sense. But give anyone enough hoops to jump through and they’re bound to miss one. At that point Texas CPS could take a family’s children again, on its own authority, with no hearing beforehand, and again force the families to fight for their return–though this time it would be one family at a time. So there are likely to be many more hearings as families challenge conditions imposed on them.
The Supreme Court also reminded CPS that instead of taking away the children, “the court may also order the removal of an alleged perpetrator from the child’s home,” meaning, in this case, the men. That would be in keeping with best practice in child welfare, where the motto is “Remove the risk, not the child.” But in child welfare, as in many fields, “best practice” is a long way from typical practice, and the ordeal of the Eldorado 400+ is a long way from over.