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Lawyers Fight to Be Heard in CPS Removal Cases Involving FLDS

Texas Lawyer
By JOHN COUNCIL

As some of the parents of the 416 children that Child Protective Services removed from a West Texas polygamist compound looked on, 51st State District Judge Barbara Walther tried her best to maintain control over the April 17 hearing. But with 300-plus attorneys involved in the CPS removal cases, it was a difficult task. Attorneys representing the parents as well as lawyers serving as ad litems for the children all wanted to ask questions of the witnesses presented by government lawyers.

The children were removed from the Fundamentalist Church of Jesus Christ of Latter Day Saints' "Yearning for Zion" ranch in Eldorado after Texas Department of Public Safety officers began a search on April 3. The search was launched after a 16-year-old girl living on the ranch called a local family violence shelter to report that her 50-year-old husband allegedly beat and raped her. CPS has not yet identified the girl. The girl was 15, and her husband was 49, at the time of their "spiritual marriage," as alleged in one of the removal petitions.

CPS subsequently filed more than 100 removal petitions in the 51st District Court in Schleicher County, which is where the YFZ ranch is located. Walther's jurisdiction includes Schleicher County, but she moved the hearing to Tom Green County, because it has a larger courthouse.

At the hearing on April 17, lawyers for the Texas Department of Health and Human Services (DHHS), which oversees CPS, tried to prove why the judge should give them temporary managing conservatorship of the children. Even before DHHS lawyers put on any evidence, lawyers representing the parents and the children started objecting.

As of Texas Lawyer's presstime on April 17, the hearing was ongoing, and Walther had not reached a decision on whether the state had proven by clear and convincing evidence why the children should not be returned to their homes. While the Texas Family Code mandates that a "14-day hearing," or "adversary hearing" as it is sometimes called, commence within 14 days after CPS removes a child from the home, the law does not require that the hearing conclude in one day, several family lawyers say.

"We are not going to have people jumping up and down shouting at the court," Walther told the lawyers on April 17. Because so many attorneys were at the hearing, hundreds of them were forced to watch the proceedings in the San Angelo City Auditorium via two-way feed. At one point, the hearing stopped for nearly an hour while lawyers in the courtroom gathered around copies of medical records DHHS lawyers introduced into evidence.

Later that day, some lawyers became confused about who their clients were after a Department of Public Safety officer testified about a list discovered at the ranch that contained the names, ages and relationships of many of the people who live there. Two lawyers who wanted to question the officer about the list represented girls who had identical names; many FLDS members have the same last names at the ranch.

From that point forward, Walther had ad litems state their clients' dates of birth before asking questions so they could keep their clients straight.

Early in the April 17 hearing, Polly Rea O'Toole, a partner in Dallas' Atkins O'Toole & Briner who is serving as an ad litem, tried to stop the hearing on due process grounds, because she contended the process did not allow her client to adequately confront witnesses. But Walther denied her objection.

"Nothing of this magnitude has been attempted before," O'Toole said in an interview during a break in the hearing, which she called "tedious, cumbersome and untenable."

"It's too big," O'Toole said. "Anyone who thought they would put over 200 lawyers in one place and be able to accomplish much of anything in eight hours was not thinking clearly."

Betty Luke, a professor at South Texas College of Law in Houston who also is serving as an ad litem, agreed with O'Toole. "It's ugly any way you cut it," said Luke, who oversees the law school's six direct representation clinics. "It's a very firm statutory hearing that has to be an adversarial hearing. And is each side getting a bite at the apple? I don't know."

But Luke had not forgotten why she came hundreds of miles to San Angelo - to represent the best interests of a frightened 7-year-old girl. Luke met with her client on April 16 in the San Angelo Coliseum that was closely guarded by police, where many of the mothers have remained with their children.

"I thought she was a real trooper. It took a while for her to get relaxed," Luke says of her client. "She's hanging on her mother the whole time, and she's scared. She's afraid that she's going to be taken away from her mom, and that's a logical fear."

Jesse Gaines, chief executive officer of Legal Aid of Northwest Texas in Fort Worth, says 20 lawyers from his organization represent at least 80 of the mothers from the FLDS ranch who cannot afford attorneys.

To meet the needs of the mothers, Gaines had to call on lawyers from legal aid offices all over West Texas, including some from Texas Rio Grande Legal Aid in South Texas, to handle the April 17 hearing.

"There's a lot of complex issues and a lot of things we're going to have to work our way through," Gaines says. "We have experienced lawyers who are capable."

Low-income individuals typically turn to legal aid organizations for free legal help when CPS removes children from homes, Gaines says. "It's something that we have done throughout our history."

The State Bar of Texas helped gather the names of more than 400 lawyers who flooded into San Angelo on April 16 and April 17 to represent the 416 children CPS removed earlier this month from the FLDS ranch. So many lawyers volunteered that Bar officials had to turn some of them away from the April 17 hearing, says Tom Vick, a partner in Weatherford's Vick, Carney & Smith who is helping organize the volunteer lawyers.

"I'm not surprised that that many lawyers volunteered. I am surprised that we could get this many lawyers together at one time in one place. That's what we do as lawyers," says State Bar president Gib Walton, a partner in the Houston office of Vinson & Elkins.

Walton says the Bar paid for dinner April 16 for the 400 volunteer lawyers and found homes for them to stay in, since vacant hotel rooms were scarce in San Angelo because of the hearing on the removal cases.

The Bar also is setting up a fund and accepting donations from attorneys to help compensate the volunteer lawyers for their travel expenses. The State Bar's Litigation Section already has donated $5,000 to the fund, he says.

"There are a lot of lawyers that said they couldn't go. They wanted to help and contribute funding to hopefully reimburse the lawyers out of pocket for travel expenses," Walton says.

While most lawyers who volunteered haven't asked to be reimbursed for the ad litem work, a lawmaker is making sure that they will be. State Sen. Robert Duncan, R-Lubbock, says state officials have approved spending state money to compensate Schleicher County for costs associated with the removal cases, including ad litem fees. Duncan says it is unclear how much money the county will need pay for the litigation.

Toby Goodman, a partner in Arlington's Goodman & Clark and a former state representative, estimates that court-appointed ad litems make about $100 per court appearance.

On April 10, Gov. Rick Perry, Lt. Gov. David Dewhurst and Speaker of the House Tom Craddick sent a letter to State Comptroller Susan Combs instructing her to allow the Texas Department of Human Services to pay for emergency costs associated with the litigation, including ad litem costs.

"In Schleicher County, their total budget is $1.6 million, and that was spent the first day. There's just not a manual on how to do this one," says Duncan, a partner in Lubbock's Crenshaw, Dupree & Milam, whose senatorial district includes Schleicher County. "The commitment is there to make it work, and I was pleased the leadership of the state stepped up, because the commitment is there."

Jim Paulsen, a South Texas College of Law professor who teaches family law and civil procedure, says the Texas Legislature passed a series of laws in 2005 aimed directly at the FLDS ranch and its members - statutory changes he teaches his students about.

"What I teach mainly is that we amended large parts of the Texas Family Code to combat polygamy,'' Paulsen says.

"The legislative package included raising the minimum age of marriage, with or without parental consent; banning first-cousin marriages; banning ex-step parent, ex-step child marriage; amending the bigamy statutes, including eliminating the husband-wife testimonial privilege in bigamy prosecution; eliminating the presumption that the spouse of the polygamist entered into the relationship innocently; and much more," Paulsen says.

But those laws probably won't affect the CPS removal cases, he says.

"I don't see that the statutory changes have much real effect on these hearings. Unless a child bride happened to be the first spouse of one of these polygamists, the new laws have no relevance, which to my mind would avoid the constitutional arguments that might otherwise arise," Paulsen says.

FLDS spokesman Rod Parker, a partner in Salt Lake City's Snow, Christensen & Martineau, did not return a telephone call seeking comment.

Volunteer Spirit

Texas Supreme Court Justice Harriet O'Neill, chairwoman of the Permanent Judicial Commission for Children, Youth & Families, which is helping organize the volunteer lawyers and the training needed for ad litems, says she hopes the spirit shown by the lawyers who volunteered will endure once the FLDS removal cases fade from the news headlines.

"I hope that any voluntary representation continues. These children represent less than 1 percent of all the people in foster care. It's a systemic need," she says.

Betsy Branch, an associate with Dallas' McCurley Orsinger McCurley Nelson & Downing where she charges $325 an hour, wanted to volunteer as an ad litem in an FLDS removal case, so she asked the partners, who said yes. Partner Mary Jo McCurley said, "I think you're the one who's perfect for this," Branch says. McCurley joined Branch at the hearing on April 17 where they both represented several children.

Branch is a former Bexar County assistant district attorney in the family violence section and a former Texas assistant attorney general where she was in the child support enforcement section. "I feel like I understand high-volume government work, family-violence issues and that includes sexual assault of children. To me it's almost like most of my experience has led me to feel like I'm qualified to be there."

"I believe the firm would not have allowed me to do this if the firm wasn't committed to see me through," Branch says. "I've been here four years, and I plan on being here for the rest of my career. And there's no statute of limitations on taking care of children."

http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1208435393880

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