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Texas Supreme Court Has Conflict of Interest in YFZ Case

2008-07-02 22:20:49

By Donald Richter

 

On June 27, 2008, Willie Jessop and several other FLDS members and supporters attended the meeting of the Texas Supreme Court’s Commission on Children, Youth and Families in Austin. Although the Commission’s rules provide for public comment at the end of meetings and although many of those present had completed comment cards indicating that they wished to speak, Justice Harriet O’Neill abruptly adjourned the meeting without allowing any of the visitors to voice their opinions or to ask questions. 
 
The Commission on Children, Youth and Families was established by the Supreme Court in November of 2007 and is chaired by Justice Harriet O’Neill, who spearheaded the effort for its creation. The opening paragraph of the order establishing the Commission states the all-encompassing power of the courts in child-protection cases:
 
“Approximately 32,000 Texas children are in the conservatorship of the state, more than ever before, and those numbers are projected to increase. Courts play a critical role in determining these children’s future. No child is removed from his or her home, is returned home, or does anything significant in between, without a court order. A judge decides where the child will live, with whom, and for how long. A judge decides whether the child will be allowed to see siblings and other family members, how often, and under what circumstances. A judge approves family service plans and monitors progress to determine whether the family can stay together. And a judge will decide whether a child’s relationship with his or her parents will be terminated forever.”
 
With these sweeping powers, the courts are entrusted with what for Texas families amounts to “life or death” authority. It is of vital importance that the courts maintain their independence and neutrality so that they do not become mere pawns of CPS in rubber stamping their decisions to break up families.
 
The state’s highest court in civil cases, however, through its Commission on Children, Youth and Families, has become a “collaborator” with CPS rather than an impartial check on CPS power. The following is among the needs stated in the Supreme Court order establishing the Commission:
 
“[T]here is a lack of communication, coordination, and collaboration between and among the courts, the Department of Family and Protective Services (the ‘Department’), attorneys, and partners in the child-protection community…”
 
The State Bar of Texas Supreme Court Advisory of November 20, 2007, quoted Justice O’Neill as saying essentially the same thing when she stated the purpose for the newly created Commission:
 
“To champion the needs of children, we must foster collaboration among courts, Child Protective Services and other participants.”
 
In specifying the membership of the Commission, the Order provides for continuing CPS involvement as well as involvement of the executive and legislative branches of the government, thus circumventing the doctrine of separation of powers.  The membership is to consist of a chair, who is a justice of the Supreme Court, the Assistant Commissioner of CPS, and not less than 14 other members appointed by the Court and including representatives of the judiciary, CPS officials, representatives of the business and legal communities, representatives of foundations or organizations with a substantial interest in child-welfare issues, and other state leaders. In addition the Governor, Lieutenant Governor, and the Speaker of the House are each invited to designate a person as an ex-officio member of the Commission who is to serve at the pleasure of the appointing officer.
 
Among the current members of the Commission are the following:
 
Carolyn Rodriguez, Director of Texas Strategic Consulting, Casey Family Programs, Austin
Joyce M. James, Assistant Commissioner, CPS, Austin
Roy Block, Executive Director, Texas Foster Family Association, San Antonio
Trista Miller, Region 07 Youth Specialist, CPS, Austin
 
Noticeably absent from the Commission membership are any parents or parent advocates.
 
A further example of the heavy involvement of the Commission with CPS is the fact that Tina Amberboy, the Executive Director, assisted earlier this year in preparing for the 2008 Youth Permanence meeting convening May 1, 2008, a slide show which glorified CPS and its partnership with Casey Family Programs. Assisting Ms. Amberboy were four CPS officials, one youth specialist from DFPS, and the Senior Director of Casey Family Programs.
 
Some writers who discount the idea of a conflict of interest claim that the Commission exists only as an advisory body. This so-called “advisory body” has taken an active part in events surrounding the YFZ raid since early April. The minutes of the Commission’s April 11 meeting describe a special report on the YFZ raid, which included an overhead presentation by Carl Reynolds. It was noted that Judge Rucker, a member of the Commission, had appointed Vice Chair John Specia as a visiting judge to assist Barbara Walther. Also present in San Angelo was the Commission’s Assistant Director Tiffany Roper.
 
The last action item at the Commission’s April 11 meeting was a motion to “Authorize the Commission’s Executive Director [Tina Amberboy] to approve emergency expenditures with ratification from the Executive Committee related to using CIP [Court Improvement Project] funds to assist the legal community in San Angelo with regards to the FLDS removals.”
 
The Texas Supreme Court Advisory provides additional details of how the Commission’s funds were used in relation to the YFZ case:
 
“Other resources are being provided by the Texas Supreme Court’s recently created Permanent Judicial Commission for Children, Youth and Families, which was formed to help channel resources and train lawyers, child-protection social workers and other staff involved with courts handling child-protection cases…”
 
The Commission has been entrusted with $3.2 million in CIP funds, of which $1.1 million remained at the time of the June 27th meeting.
 
Kurt Schulzke, a Georgia attorney-CPA, has written a very thoughtful article alleging that the Commission’s training of the attorneys ad litem, who represented the YFZ children at the 14-day hearings in San Angelo April 17-18, was a rigging of the hearings to assure that CPS retained custody of the children. Schulzke provides a link in his article to a set of invoices for service training of these lawyers by outside contractors on April 11-12.
 
Strong support for Schulzke’s position is provided by an article at Law.com written on April 10, which discusses Justice O’Neill’s proposed training sessions for attorneys ad litem to represent the children in the YFZ case and indicates that she is working with the University of Texas School of Law’s Children’s Rights Clinic to help provide the training. Jack Sampson, director of the clinic, is quoted in the article along with several other attorneys involved with the YFZ case. The quotations may not reflect the official content of the training sessions, but they are very indicative of the attitudes of those who would be teaching the classes or attending them and, no doubt, describe quite well the overall perception of the FLDS people that participants in these sessions would take away from their classes.
 
Part of the discussion among the attorneys was that children and parents would need DNA testing to determine the biological parents because the children had been raised at a compound. Mere interview with the children and adults would not be sufficient.
 
“They won’t know because the kids don’t know, because they are raised communally,” said one attorney. The ridiculousness of the statement does not deserve comment, and it is only included here to show the type of stereotypes that were disseminated as part of the rationale for concluding that these children were not able to make their own decisions.
 
“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….
 
“’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, [director of the University of Texas clinic involved in the ad litem trainings],…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.’”
 
All right, class, how many can say “Natalie Malonis”?
 
The position of the Supreme Court’s Commission is that the courts, CPS, and the attorneys are professionals and can determine what is best for the children. “Just trust all-knowing Big Brother; we have everything well in hand.” Especially disturbing in this light is another statement from the Supreme Court’s Order establishing the Commission:
 
“Unlike other cases that follow the traditional adversarial process to which civil courts are accustomed, child-protection cases require a collaborative, multi-disciplinary approach.”
 
Is there any indication in this that the 14-day hearings were true adversarial hearings as they were supposed to be?
 
Another aspect of this picture which requires careful consideration is the Supreme Court decision of May 29, 2008, under which the children were returned to their parents. Although this decision seems to support the earlier ruling made by the Third Court of Appeals, it actually shows the Court’s bias in favor of CPS by adding instructions which Judge Barbara Walther was quick to seize upon as a blueprint for the restrictions under which the parents were able to regain custody of their children:
 
“The Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders ‘for the safety and welfare of the child,’ including an order ‘restraining a party from removing the child beyond a geographical area identified by the court.’ The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation….
 
“[The district court] need not vacate those temporary orders without granting other appropriate relief to protect the children.”
 
Compare these instructions with the major restrictions of the order under which the children were returned. The parents:
 
►Must provide identification and be fingerprinted and photographed with their children at the time they pick them up.
 
►Must provide CPS with home address, telephone numbers for parents, and names of all children and adults living in the home.
 
►Must cooperate with ongoing CPS investigations, allowing unannounced visits from CPS workers between 8:00 a.m. and 8:00 p.m.
 
►Must attend and complete parenting classes.
 
►Must allow interviews with the children, including medical, psychological, and psychiatric examinations if CPS deems any of these necessary.
 
►Must notify CPS seven days before any change of residence.
 
►Must not remove children from the state except by court approval.
 
►Must notify authorities if children are to travel more than 100 miles from their home.
 
Public comment apparently was going to be allowed in the Commission’s June 27th meeting until Willie Jessop submitted his comment card requesting 1.5 minutes to speak on the issue of the Court’s conflict of interest. When Justice O’Neill received the card, she quickly passed it to Vice Chair John Specia and Commission member Darlene Byrne. Executive Director Tina Amberboy hastily left the room, and Justice O’Neill adjourned the meeting, claiming that her action was taken in the interest of time and because several of the judges present had pending cases which could not be discussed at that time in public comments. Texas Rangers entered the room to guard the rear exits, and the members of the Commission vanished through the side door, leaving the visiting guests stunned and bewildered.
 
One of those who had desired to make a presentation was Gary Gates, a successful Houston businessman, whose children were seized by CPS several years earlier. Gates has spent untold hours and hundreds of dollars assembling documents which show the Supreme Court’s conflict of interest through its Children’s Commission. Included in his papers are invoices documenting use of CIP funds to pay such anti-FLDS crusaders and organizations as Child Protection Project (Flora Jessop), the Hope Organization, and the Dan Fischer’s Diversity Foundation.
 
When Gates found that he was unable to speak to the Commission, he asked the newsmen covering the meeting to turn their cameras on him and made a brief presentation of his materials to the media. For some reason no news account that we have seen makes any mention of Gates or of his materials.
 

The refusal of the Commission to allow Willie Jessop and others to speak at the June 27th meeting gives us a glimpse of the tip of the iceberg. Far from avoiding disclosure of a conflict of interest, the action of denying any public comment makes the fact even more apparent that such a conflict does indeed exist.


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