In re Tex. Dep’t of Fam. & Protective Health Servs., No. 08-0391 (orig. proceeding)
Filed: May 23, 2008
This afternoon, the Texas Department of Family & Protective Health Services sought mandamus relief from the Texas Supreme Court to overturn yesterday’s decision of the Austin Court. The State also sought an emergency stay.
The Austin paper has this brief post, as well as links to the Department’s petition for mandamus and its motion for emergency relief.
Update 5-24: Here is the response to the State’s motion. The Court’s docket sheet is now also online, as is a page with the electronic versions of the briefs (which should be updated if more briefs are filed).
On reading through the State’s papers, I was struck that they are sticking to their argument that — for most of these children — the FLDS belief system is sufficient evidence for the State to take custody. That seems like a dangerously thin argument, especially given the constitutional problem with relying on religious beliefs as the motivating basis for a government decision. As far as I can tell, “belief” is the booster that the State uses to turn pregnant teenagers into an assumption that each pregnancy resulted from child abuse (which is not the assumption the State makes about pregnant teenagers in Texas high schools; there is no mass movement to seize custody of them on some assumption that their parents’ peers rather than their own were the fathers). And “belief” is also the glue used to try to transform the evidence about those pregnant children into evidence of a risk to all other children — including those too young (or too male) to themselves become pregnant anytime soon.
If you piece together the State’s argument, it is: “Any reasonable person would be appalled at these beliefs and find them dangerous. The appellate court can’t second-guess that.”
I wouldn’t be terribly surprised if the Court granted emergency relief just to have a few days to process this request but then rather quickly denied review. The dilemma would be how long would be fair to consider the merits — the harm, after all, is the separation.
1 response so far ↓
1 Doug Conley // May 24, 2008 at 1:05 pm
I implore parents of Texas to take the time to read Justice Puryear’s masterful analysis of the interests of parents, children and the state in this concurring opinion: http://www.3rdcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=13928
Puryear takes a further step in this concurring opinion: http://www.3rdcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=14083
and states that in these circumstances, he would require “clear and convincing†proof from the trial court and conduct a “legal and factual sufficiency†review of the trial court’s order.
In my humble opinion, Justice Puryear’s dicta is strongly persuasive and should be followed.
“dicta may be followed if sufficiently persuasive but are not binding.†Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey’s Executor v. United States, 295 U. S. 602, 627 (1935).
In In re Steed: http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=16865 the panel did, in fact conduct a “legal and factual sufficiency†review of the order when seeking support for the requirements of Tex. Fam. Code 262.201 http://tlo2.tlc.state.tx.us/statutes/docs/FA/content/htm/fa.005.00.000262.00.htm#262.201.00 however they stopped short of declaring that to be the standard of review for mandamus issue to correct the abridgment of these monumental rights pendente lite.
Legal and factual sufficiency was merely used as a tool by the 3rd Court of Appeals to reach a finding of “abuse of discretionâ€:
“The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators’ children with the Department. Consequently, the district court abused its discretion in failing to return the Relators’ children to the Relators.â€
The standard of review is a large part of the state’s argument. It isn’t unprecedented to conduct a legal and factual sufficiency review in assessing whether the trial court abused its discretion:
“Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the district court abused its discretion.” See, e.g., Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.–El Paso 2001, no pet.).