Texas Lawyer
By John Council
Tom Vick is looking for about 100 lawyers willing to volunteer for what likely is the biggest family law case in Texas history.
Their mission will be to represent hundreds of children recently removed by Child Protective Services from a secretive polygamist compound in West Texas.
The removal petitions CPS filed on April 7 will test the state's civil justice system in an unprecedented way because of the sheer volume of litigants, five family lawyers say.
As of Texas Lawyer's presstime on April 10, CPS had filed 123 separate removal petitions in the 51st District Court, one of which is In the Interest of 330 Children From the YFZ Ranch, says Dean Rucker, presiding judge of the 7th Administrative Judicial Region, which includes Schleicher County. That's where the "Yearning for Zion" ranch of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) is located.
Vick, a partner in Weatherford, Texas' Vick Carney & Smith, is one player in a statewide effort to prepare for the unwieldy litigation that includes the State Bar of Texas, the Office of Court Administration, the Texas Supreme Court and the Texas Legislature. Those state entities are finding volunteer lawyers to serve as ad litems for the children, training the ad litems on how to represent children, equipping a district clerk's office to handle a large volume of motions and providing emergency funding necessary to handle the many removal petitions.
The Department of Public Safety began a search of the many buildings on the FLDS' Eldorado, Texas, compound on April 3 after a 16-year-old girl there called a local family violence shelter to report that her 50-year-old husband allegedly beat and raped her. The girl was 15, and her husband was 49, at the time of their "spiritual marriage," as alleged in YFZ Ranch.
Gerry Goldstein, a partner in San Antonio's Goldstein, Goldstein & Hilley who represents leaders of the FLDS church in connection with the search warrant at the ranch, did not return a telephone call seeking comment before presstime.
By last week CPS officials had removed more than 400 children from the compound and placed them in state custody, housing them in a historic fort in neighboring Tom Green County.
Gary Banks, managing attorney for the Texas Department of Family and Protective Services in San Angelo who filed the CPS removal petitions, did not return a telephone call seeking comment before presstime.
The Texas Family Code requires that a district court hold a hearing within 14 days after CPS removes a child from a home. In what is known as a "14-day hearing" or an "adversary hearing" to establish temporary managing conservatorship of a child, the state must show why the child should not be returned to his or her parents. The hearing in YFZ Ranch is scheduled for April 17 in 51st District Judge Barbara Walther's San Angelo, Texas, courtroom. Walther's jurisdiction includes Schleicher, Tom Green, Coke, Irion and Sterling Counties.
Vick is seeking the names, addresses and phone numbers of family lawyers willing to volunteer as ad litems in the CPS removal actions. The case is so large that the 120 lawyers in San Angelo, the city with the most attorneys near tiny Eldorado, can't possibly handle it, Vick says.
Vick serves on the Access to Justice Commission, which was created by the Texas Supreme Court to address the legal needs of the poor. Vick says he began gathering the names of lawyers at the request of Emily Jones, the executive director of the commission.
"The court's not ready to appoint lawyers yet," says Vick, a member of the State Bar of Texas board of directors and a former chairman of the Bar's Family Law Section. "We're just trying to amass an army, so when we're called upon we'll be ready to do the job."
On April 9, Vick started making phone calls and sent e-mails to 30 family lawyers around the state, asking if they're willing to serve as ad litems for the FLDS children. So far the response has been heartening, he says.
"Every one of the lawyers I've talked to about this, all family lawyers, they have said, 'Yes, I'll help.' And not one of them have asked if they're going to get paid," Vick says. "It's a real tribute to them actually."
While Vick gathers the names, addresses and phone numbers of lawyers willing to serve as ad litems, Legal Aid of Northwest Texas is providing lawyers for the indigent parents in the case, Vick says.
Jesse Gaines, CEO of Legal Aid of Northwest Texas, did not return a telephone call seeking comment before presstime.
Rucker says the local judiciary is gearing up for the massive litigation.
"Certainly it's a historic and monumental undertaking," Rucker says. "But the judicial branch is being responsive to the need for resources at the local level to handle the cases."
It is Rucker's job as presiding judge of the region to appoint jurists to hear cases for a variety of reasons. He's not sure at this point whether Walther will need help adjudicating the removal cases. Walther did not return a telephone call seeking comment.
"It will be a challenge -- very difficult but not impossible" for Walther to handle the removal cases by herself, Rucker says. "A lot of that will be determined once the adversary hearing occurs and the judge has a better grasp on the breadth of the litigation."
SENDING IN HELP
Two years ago, the Texas Supreme Court created the Permanent Judicial Commission for Children, Youth & Families to improve how the judicial system treats abused and neglected children. Commission members will have their work cut out for them with the FLDS removal cases.
"Thank goodness we had a structure in place," says Texas Supreme Court Justice Harriet O'Neill, chairwoman of the commission. The commission studies how to improve child protection in Texas and oversees funding to help courts better deal with abused and neglected children.
Last week, O'Neill sent commission staff member Carl Reynolds, executive director of the Office of Court Administration, to West Texas to help the Schleicher County district clerk's office process the numerous court documents being filed related to the removal petitions. Rucker, vice chairman of the commission, also sent commission member John Specia, a former Bexar County state district judge, to West Texas to assess the county's judicial needs. Specia did not return a telephone call seeking comment.
While there are thousands of family lawyers in Texas, not all of them have ad litem experience. The Texas Family Code requires that lawyers have continuing legal education training before they represent children as ad litems in family court cases.
O'Neill says she is looking into obtaining federal grant money to fund training sessions for lawyers on how to handle the ad litem issues in the FLDS removal cases and is working with the University of Texas School of Law's Children's Rights Clinic to help provide the training. O'Neill expects that a video of the training sessions will be posted on the State Bar's Web site. Jack Sampson, director of the clinic, says a three-hour training session was to be held in San Angelo on April 11, after Texas Lawyer's presstime.
Removal cases "are in our courts in Texas every day. And our courts don't have the resources we need," O'Neill says. "And this [the FLDS removal cases] just emphasizes and highlights the importance of these courts and what they do."
Reynolds say Schleicher County's small district clerk's office is not equipped to handle the volume of motions expected to be filed related to the FLDS removal cases. So he's working on an agreement between Schleicher and Tom Green counties so that the Tom Green County district clerk's office can process all of the motions related to the litigation.
"Tom Green County has e-filing, and Schleicher County does not, and we need a special agreement to make that work," Reynolds says.
Several family lawyers say the FLDS removal cases will present numerous challenges and difficult legal issues.
Lawyers will first need to determine who the biological parents of the children are -- a daunting task in cases involving a polygamist sect, Vick says, that will involve more than interviewing the children and adults who live at the compound.
"They won't know because the kids don't know, because they are raised communally," says Toby Goodman, a family lawyer and partner in Arlington's Goodman & Clark. "So they are going to have to do DNA testing."
In family law cases judges typically appoint attorneys to serve jointly as guardians ad litem, who represent the children's best interests, and as attorneys at litem, who represent the wishes of the children in court, says Christina Melton Crain, a Dallas solo who does ad litem work.
The next difficult issue for lawyers who accept ad litem appointments is balancing a child's wishes against a child's best interests, says Christine Tharp, a San Antonio family law solo who has volunteered to serve as an ad litem in the removal cases. Because CPS alleges in the removal petitions that some minor teenagers entered into "spiritual marriages" in the isolated compound and had children, those teenagers may not know that the marriages were illegal, Tharp says.
The Texas Family Code does not recognize "spiritual marriages," two family law experts say. A parent can't consent to the marriage of a child under age 16, and Texas does not recognize the common-law marriages of children under age 18.
"Suppose you have a mother that's 13 ... . They are home-schooled. They have no media, no radio, no nothing," Tharp says. The children may not realize they're being abused by adults.
"There could be a conflict if you have a 16-year-old child that wants to go back to their old life. You have a duty to represent the best interests of your client," Tharp says. "You do what's best for them, but there's a different layer of advocacy that can be involving."
Professor Sampson, who teaches family law at the UT law school, says the ad litems also must determine if the children are mature enough to make decisions about their own best interests.
"Where the pinch comes is: When is the client old enough to determine that? The lawyer has to determine whether the child is competent," Sampson says. "The lawyer is bound to follow the client's objectives, unless the lawyer determines the child is too young. You can substitute your own judgment. That could be at 2, 5, 7, 8 or 10. It's the lawyer's choice."
The Texas Family Code does not specify an age for when a child can make decisions about his or her own best interests, Sampson says.
That's why it's going to be best for experienced family lawyers to volunteer to represent kids in the FLDS removal cases, says Barbara Nunneley of Hurst, Texas' Nunneley Family Law Center. Nunneley, president-elect of the Texas Chapter of the American Academy of Matrimonial Lawyers, is asking members of her group to help.
"Experience is important here. If these kids have been removed from their parents for no statutory reasons, they need to be returned," Nunneley says. "We're asking our membership of 200 lawyers in Texas to take time out of their schedules and accept the representation of a child. We certainly welcome other lawyers too, but the issues are complex, and we're going to have to have some pretty skilled family trial lawyers for these kids."
The removal cases will also prove difficult for Walther, the only district court judge who serves Schleicher County, Goodman says. Under the Texas Family Code, Walther can't transfer the cases to another district court even if she wants to, Goodman says. Rucker says other judges in Tom Green County have agreed to take over Walther's caseload while she handles the FLDS removal cases.
"The Family Code gives a court exclusive continuing jurisdiction based on the residency of the child/parent. Well, in this case, all of these kids and their parents resided in Schleicher County," says Goodman, who helped rewrite the Family Code when he served as a state representative in the Texas Legislature.
"So under the Family Code there's only one court who has jurisdiction over those cases and these kids, and that's the district court in Schleicher County," he says. "The only way you can transfer from one court to another is if the child has been removed and has been gone for six months."
But Goodman doesn't see six-month transfers happening in the FLDS removal cases, because they would be akin to forcibly detaining children for the sole purpose of court transfers, which wouldn't make sense, he says.
The next worry for Walther will be to resolve the removal cases quickly, several family lawyers say. Once CPS files a removal case with the court, the clock starts ticking, and if the case is not completed within a year, or 18 months in some cases, the child must be returned to the parents, according to the Family Code.
"Under the law, once a termination case is filed it has to be tried within a certain amount of time or it has to be dismissed," Tharp says. "That is going to be an administrative nightmare on its own."
If parents oppose their child's removal, that will add to the litigation time, says Brad LaMorgese, a family law associate with McCurley Orsinger McCurley Nelson & Downing in Dallas. In the removal cases, LaMorgese expects FLDS parents to argue the issue of religious freedom and raising their children as they see fit. Criminal defense lawyers representing the compound's leaders have said the search of the compound is akin to a raid on The Vatican.
The potential for freedom-of-religion claims in the removal cases makes Hiram Sasser, director of litigation for the Plano, Texas-based Liberty Legal Institute, shudder. Sasser's nonprofit group represents a variety of organizations in religious freedom cases.
Sasser fears that some of the parents may try to "use religious freedom as a shield and a reason why the children should remain in their care and custody."
"And if courts are not careful, they are going to create a lot of bad precedent for other religious freedom cases," Sasser says. "What we would ask the court is to see through bogus religious claims. Don't let it be."
