Elmer Smith: In Philly, 'We err on the side of caution'

IF YOU THINK the law can protect children when their parents won't, a state court ruling in Texas yesterday may make you think again.

The Third Circuit Court of Appeals in Austin ruled yesterday that Texas' Child Protection Services had no right to seize hundreds of children in an April 3 raid on a poly-gamous sect, despite credible evidence that girls as young as 12 years old were being forced to marry men.

A three-judge panel ruled that child welfare authorities didn't do enough in a series of custody hearings last week to make the case that most of the seized children were in imminent danger.

The fact that minors as young as 13 are pregnant or have had babies already is not enough.

The fact that this sect has a long and sordid history of exposing young girls to sexual abuse by men is not enough.

Even a showing that the Fundamentalist Latter Day Saints enforce adult sexual relationships on their children, the court ruled, does not by itself justify the mass removal of children from the sect's Yearning For Zion Ranch in Eldorado, Texas.

You know what? The court may be right.

I rooted for the raiders when they removed more than 400 children from they YFZ ranch last month. I felt the anguish of those mothers who were forcefully separated from children they love. But my concern is for those children that they failed to protect.

I respect their religious convictions, even though they make no sense to me. I wouldn't want the government making decisions about my family just because they don't believe what we believe.

But when the invisible line separating parental authority from society's responsibility to protect children has been breached, the rites of a church cannot supersede the rights of its children.

It's never that neat, though. This case started to break down when the state could not identify the 16-year-old mother whose anonymous allegation of sexual abuse prompted the raid.

It got even shakier when they tried to justify seizing infants or boys on the grounds that they were being trained as future perpetrators.

Ultimately, the scope of the raid indicted the government even more than the sect's "unfit" mothers.

Dr. Arthur Evans, who runs the Philadelphia Department of Human Services, listened as I expressed my frustrations. Then he welcomed me to his world.

"When my colleagues in other cities bemoan what we're going through," he said, "our only solace is that at least we're not in Texas.

"There are many things children are exposed to that I personally think are bad. We end up intervening when they come into our system.

"But when they're not in the system yet, it's none of the government's business. Even the issue of the age of consent is one where society has its norms and some families have their own.

"In Philadelphia, we're dealing with things like substance abuse. But if we take every child from parents who drink too much or use drugs, we'd be taking millions of children from their parents.

"The law says we have the right to intervene sometimes even in [cases involving religious beliefs]. But do you go after people who don't buy into the larger society's norms? It's a complicated issue.

"One of the fallacies is that it's always safe to remove children. But this is not a neutral act. Removing them can be more harmful to the children than leaving them in place with added protections."

Evans had not read the ruling. But his feeling - that something short of seizing all of the children should have been tried first - mirrored the court's findings.

So, what now? What do you do when there is clear evidence that some of the children being returned to the ranch will become victims?

"We err on the side of caution," Evans said. "If we take one child and leave the others and something goes wrong, the broader community will say, 'You knew the others were in danger.' "

We do know. But we also know that the same laws that protect children from abuse sometimes protect them from us. *

Send e-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith