NOTE: Be sure to read the disclaimer at the end of this post.
What happens when a government agency is allowed to operate outside the Rule of Law?
The answer: Justice is not served and individuals who live outside the social norm, however harmless their choices, are targeted, and the agency, once set on a particular course will not back down.
In all states that I am aware of, various versions of New Mexico's Children, Youth and Families Department operate outside the Rule of Law. That is they may make whatever accusations they please or accept anonymous accusations of child abuse, and act on them by invading the sanctity of the people's homes and remove children, all without being required to follow the normal constitutional procedures that protect the rights of the accused. The excuse for this blatant use of state power without protections is that it is 'to protect the children.' However, removing children from their parents for neglect often places those children in the more dangerous foster care system and leaves them vulnerable to abuses far more severe. In addition, in many such cases, the harm done to the children by removing them is greater than the alleged harm they are exposed to in their families. And of course, in the cases where the accusations are unfounded, the children have been traumatized and the innocent parents have been subjected to a very frightening tyranny from which they can never properly recover their good names. In such a situation, it would sensible for an agency to have to prove that removing the child is actually the least harmful option, and the rights of the accused ought to be fully protected.
We have seen the pattern I am about to discuss several times this year.
In the most notorious, the State of Texas removed hundreds of children from their parents based on one anonymous accusation called in from Colorado. They did so without discrimination based on any evidence that a particular child was being abused, thus literally tearing nursing babies out of the arms of their mothers.
What was the crime of these mothers? They were not legally married to the fathers of the children because they practiced polygamy. Now polygamy is against the law in Texas but these parents weren't being arrested for that. They were accused of child abuse and/or neglect simply because of the people they were associated with. I am not arguing the merits of polygamy here, nor am I saying that forcing underaged girls into marriages is not statutory rape. I am simply pointing out that for most of the removed children, no such marriages occured. Rather, these children were removed from their families because abuse might occur in the future. It brings to mind Phillip K. Dick's short story The Minority Report.
Since all parents might abuse or neglect children in future, we ought to be worried. After all, if this is standard of decision, then all parents ought to have their children removed now, as soon as possible, so that they will be placed in the state foster care system--where the chances of that might increase astronomically. (Of course, I am being facetious).
I suspect the real crime of these FLDS parents was that they had an edgy lifestyle; they lost their children because they have chosen to turn their backs on the majority culture.
Oh, and they homeschooled their children.
This Sunday I read about another, even more egregious case in the Albuquerque Journal.
This one is not likely to get the national attention of the FLDS fiasco. Instead of hundreds of children, there are three. Instead of numerous pioneer matrons, there is only one father. And since strange marriage practices are not involved, the case is not as titillating. But injustice against one is injustice for all.
Michael Travalino a.k.a. Michael Eagle Feather is an American Indian and he practices Shamanism. He is a medicine man, and he was treating a woman using these practices. The country sherriff was called by one of this woman's family members who was worried about her. Again, I am not arguing the merits of shamanistic medicine here, nor do I recommend it. But being a medicine man is not even illegal so long as he does not pretend to be an allopathic doctor or give prescriptions without a license.
When the sherriff's deputies arrived at Eagle Feather's house (according to the ABQ Journal--"on a warm June night") they found it to be "ice-cold" (in June in southern New Mexico?), and the situation "wasn't normal." So they stepped inside--without a warrant. Eagle Feather's children were in this not "normal" situation --there were herbs around and a big copper pyramid in the living room, for heaven's sake--how much more abnormal could it be? So CYFD was called in and the children were removed for suspected child neglect.
Again, what is the standard here? I suspect that "not normal" means an alternative lifestyle to that of the majority culture.
Once again, this person's crime is choosing to be different.
Oh, and guess what? Travalino homeschools his children, teaching them in traditional Native American skills and culture.
To make a long story short the state was unable to demonstrate that the children were in fact abused or neglected. In such a case, it would seem sensible to give the kids back and say "sorry." But that's not what happens when crusading do-gooders with state power are on the job. Now they are trying to remove Eagle Feather's parental rights for "educational neglect." The only problem is that New Mexico does not have a legal definition for "educational neglect." If they make such a definition now, then Eagle Feather would lose his children because he did not follow a standard that didn't exist when he was supposed to be following it. In a normal, constitutionally-based criminal case, this is called ex post facto law, and a citizen may not charged with violating such a law.
I suggest that although this case may have started out as one about abuse and neglect, it has become about the CYFD winning at any cost. Even the destruction of a family, however different, is less important than this winning.
Eagle Feather is arguing, through his lawyer, that this case ought to be taken to his Tribal Court, but that has been nixed because his tribe--although it exists--has not been recognized as a "real" tribe by the BIA. Don't get me started about the BIA, my blood pressure can't take it. I will say this, first the United States violated nearly every treaty made with these tribes, and now the United States claims the right to define who they are? Just saying.
I don't know what the judge is at liberty to do, but real justice would be met by letting the tribal courts determine if the legally defined abuse and neglect has taken place, because that court holds the standard for that community.
And as for the undefined "educational neglect," I think a state with a graduation rate that hovers between 30 and 40 percent (the state has difficulty with the definition of graduation rate) ought to awefully careful about placing a definiton of educational neglect on the books. If they develop a reasonably accurate one, then parents could begin suing the state. For educational neglect.
DISCLAIMER: (Added July 11, 2008): Please read the above carefully before you get angry that I am killing your particular sacred cow. I am NOT saying that children should not be removed when there is evidence of immediate, life-threatening danger. I am NOT saying that all foster homes are abusive. I AM saying that in the absense of immediate life-threatening danger, the proper constitutionally guarranteed rights of the accused should be observed. I AM saying that the whole state-custody situation is terribly broken, and that there are enough bad apples in it, that children are being placed in greater danger by being put into the system than they may have been in within their own families--except in cases of severe abuse.
I did NOT even begin to address the developmental damage and educational neglect that can be done to a child by removal from his or her own family. These are not factors that should be taken lightly. There is some evidence that, EXCEPT in the case of severe abuse, the damage done to the child by removal is greater than the damage caused by problems in the child's home. I wish the child-savers had the same oath as doctors: FIRST, DO NO HARM.
Perhaps we ought to be having a conversation about what kind of system would work better than what we now have.
Also someone has asked for a link to this story. It is from the Albuquerque Sunday Journal, Sunday July 6, 2008. Although I have linked, the Albuquerque Journal has a subscription only access via internet. To read the actual story, you will have to get a trial subscription.