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Commentary: Can Texas take the children?

  • Story Highlights
  • More than 400 children being taken from Polygamist ranch by bus
  • Law requires CPS to investigate reports of child abuse to protect children
  • Law enforcement officers obtained a warrant authorizing search
  • CPS doesn't always need a court order to remove children
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By Sunny Hostin
CNN
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Sunny Hostin is a legal analyst on "American Morning."

NEW YORK (CNN) -- It's every mother's nightmare: Someone takes your child.

Well, that is what has happened in the Texas polygamist sect case. We have watched more than 400 children being taken from home by bus.

Most of the children were accompanied by their mothers. But now the sect's mothers and children older than 5 have been separated.

And the question heard around the country is, "Can this happen in America?"

The short answer is yes, and thank goodness.

In fact, in this case, both law enforcement officers and officials from the Texas Department of Family and Protective Services had every right to remove these children.

The long answer?

Well, the impetus for the search of the ranch and the removal of the children were phone calls on March 29 and 30, from a 16-year-old girl named Sarah to a local shelter.

Sarah indicated that she was "spiritually married" to an adult male member of the church and that he had physically and sexually abused her. In addition, she told the shelter she had an 8-month-old child.

State law requires anybody who believes that a child has been abused or neglected to report it to the Child Protective Services program, Texas family protective services or a law enforcement agency.

The law requires CPS to investigate reports of child abuse or neglect for the primary purpose of protecting children. Children are at risk if there is a reasonable likelihood that they will be abused or neglected, as defined by the Texas Family Code, in the foreseeable future. Video See the latest on the fate of the children »

In this case, the sect's leader, Warren Jeffs, was convicted of being an accomplice to the rape of a 14-year-old and is awaiting trial in Arizona on similar charges.

The law also requires CPS to notify law enforcement agencies of all reports of alleged abuse or neglect. The law enforcement agency determines, separate from CPS, whether to conduct a criminal investigation and whether a criminal violation occurred.

CPS doesn't always need a court order to remove children. It can remove children if the person taking possession of the child has sufficient knowledge or reason to believe that there is an immediate danger to the physical health or safety of the child and/or the child has been the victim of sexual abuse.

Law enforcement officers obtained a warrant authorizing a search of the compound. Much has been made of the fact that Sarah has not been identified.

Some, including sect members and their attorneys, have said that the call was not placed by anyone in the compound; that it was placed by a disgruntled member or, worse, was a hoax.

I say it doesn't matter, and the Supreme Court agrees.

Where law enforcement officers illegally search private premises or seize property without probable cause in violation of the Fourth Amendment, the illegally seized evidence will be excluded from evidence.

This rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. And if a police officer has an objectively reasonable belief that a magistrate had probable cause to issue the search warrant, even if an affidavit doesn't provide the magistrate with probable cause, the evidence can still be used.

There is no indication that law enforcement officers in this case did not rely on good faith on the search warrant, so the warrant is good. And, remember, CPS didn't need a warrant; it had to investigate the allegations.

Texas law prohibits marriages before age 16. Texas law also prohibits men older than 19 from having sex with someone under the age of 16.

It is a crime, period.

And so the children were removed, all 416 of them. Initially, their mothers were allowed along.

But later it was determined that it was not in the best interests of the children to remain with their mothers during the investigation. I agree. Video Watch a CPS spokesman explain how the children are doing »

The mothers are part of the problem here. They subscribe to the sect's beliefs. Or maybe they are brainwashed, or victims themselves. But none of that really matters.

What matters is protecting these children, even if that means protecting them from their own mothers.

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So what will become of the children?

We will know more Thursday, when state Judge Barbara Walthers will determine whether they should remain separated from their mothers for now or for a long time. E-mail to a friend E-mail to a friend

All About Warren JeffsFundamentalist Church of Jesus Christ of Latter Day Saints

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