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Protective cases involve two questions: Is the child at risk of parental abuse or neglect? Must the child be removed from her parents' care to protect her? In Texas, Child Protective Services must also show that "reasonable efforts have been made to prevent or eliminate the need to remove the child from the child's home."

A Texas judge considered the situation of more than 400 children of the Fundamentalist Church of Jesus Christ of Latter Day Saints in just two days and found that all the children were at risk of abuse or neglect and that all needed to be removed from their homes.

Few would question the appropriateness of both findings for the girls who had been victims of sex crimes (rape, statutory rape or incest) and whose parents had condoned it. Siblings of these girls might also be at risk of abuse or neglect. But if there were families that had not supported underage "marriages" (as recent news stories have related), it is not clear why the court found their children at risk of parental abuse or neglect.

Just as children whose neighbors and relatives use illegal drugs are at risk of being introduced to drug use, they are not suffering parental neglect at the YFZ Ranch if their parents provide proper supervision and guidance.

Likewise, it is difficult to imagine that the court needed to remove pre-teen children from their homes in order to protect them from sexual exploitation as teens. Much has been made about nursing infants, but toddlers (ages 1 to 4) are probably most put at risk for emotional harm by being removed from their primary caregivers.

After CPS takes custody, a "family service plan" is required. The state must make "reasonable efforts" to reunify the parents and children except in limited "aggravated circumstances." If the child is a victim of "sexual abuse" inflicted by a parent or another person "with the parent's consent," then services to return that child are not required.

If a family cannot be reunited, the law provides for a "permanency hearing" that might terminate parental rights and place the child for adoption.

This statutory scheme raises further questions about what the court and CPS have done. For the girls who have been victims of sexual abuse, CPS need not provide a service plan to attempt to reunite them with their parents. But perhaps it should.

Will it be easier on these teen mothers to live independently in the world away from their families? Might it be better to reunite them with their mothers and provide both with supportive social services to assist them in avoiding abusive relationships?

With respect to the younger children who have not been sexually abused, Texas must make "reasonable efforts" to reunite them with their families. In typical protective cases this involves getting the parent treatment for any underlying problem - drug abuse, alcoholism, mental illness - and training in appropriate caretaking.

What services will be proposed for the FLDS mothers of young children? Given suspicions that these mothers may suffer from low self-esteem or depression, and thus permit themselves and their children to be mistreated, perhaps some mental-health assessment, counseling and training about abusive relationships should be offered. But why must young children be separated from their mothers for such counseling to be provided?

After the fact-finding hearing (where the judge found the children at risk and placed them in foster care) there is no right to appeal. Nor can the follow-up status hearings be appealed. Only after the permanency hearing - when the judge terminates parental rights and releases the child for adoption - is there an appeal. At that point it is far too late to correct any initial mistake of breaking a toddler's bonds to his mother.

It is possible to seek permission to bring an "interlocutory" appeal after the fact-finding hearing. The lawyers for Legal Aid have sought such an appeal. It is also possible to bring an independent action (a "mandamus") asking an appellate court to order the trial court to conduct a proper hearing.

Counsel for parents and children who have strong claims to be reunited might take that approach to get individual consideration. It is also possible that a federal civil rights suit might be attempted.

Perhaps Texas officials pursued mass placements because they were unsure about parent-child relationships. Hopefully, once DNA testing is completed, each individual child's situation will be reassessed and properly addressed.

If there are families within the FLDS community who do not impose under-age "marriages" on their children, the CPS workers should return their children to them and solicit their help to change this dynamic within the community.

Such an approach would more likely lead to eradicating what society clearly considers abusive than will a full-scale assault on the community's practice of plural marriage.


* LINDA F. SMITH is a professor and clinical program director at the University of Utah's S. J. Quinney College of Law.