Treating children as property
By Randy Burton
Children are not property and parents relinquish their "right" to be a parent the minute they abuse a child.
But two recent court actions have given me cause for concern.
The first incident began last spring when Child Protective Services was called to investigate the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) compound in El Dorado, Texas.
CPS found pregnant children living in a remote, guarded compound.
They had no choice but to remove the children from the dangerous environment. CPS' actions were supported at the trial level, but appellate courts subsequently returned the children to the men who molested them.
The Texas Supreme Court held that the rights of the parents overshadowed the rights of the child and the duty of society to protect the children, even from their own parents.
CPS is legally mandated to remove all children from the family when felonious abuse is suspected.
Given that the FLDS members do not recognize a traditional definition of the family, going so far as to remove mothers and children from one man and "reassign" them to another, how can the government or the courts determine where the family starts and where it ends?
The second example of our judiciary's wrong-headedness occurred last summer. Several years ago, CPS removed children from a home in Brazoria County. The father, a Mr. Gates, went on a crusade to punish CPS and filed a civil suit against CPS because he felt CPS abused its power. Gates lost in trial court, lost on appeal and lost again in the 5th Circuit Court of Appeals three months ago. That's where the case went terribly wrong.
Even though the 5th Circuit ruled against Gates, it took the opportunity to write an opinion that essentially said that CPS should follow procedures like those law enforcement follows when investigating crimes. The court failed to recognize the extraordinary powers we have given to CPS to protect children.
The opinion in the Gates case is an example of a disturbing trend to legislate children's rights as though children were property. The right to be safe from a warrantless search and the 4th amendment prohibition on unlawful "search and seizure" is being used to protect a parent's "right" to treat their children like property.
The problem is that this protection comes at the expense of children's rights—the right to be protected by the state from parental abuse.
The Gates case is troubling for two reasons:
This opinion has had a chilling effect on CPS. The CPS workers I have talked to say they now feel that they have no power to protect children.
Hogwash! We cannot allow the protections for children we have in place to be eroded by courts that treat children as if they are property.
Randy Burton is the founder of the national child advocacy group Justice for Children and a partner at the Houston law firm Burleson Cooke, LLP. Read additional guest dispatches by Mr. Burton:
© Copyright 2008 Houston Chronicle. All rights reserved. Reprinted with permission.
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