“Can They Do That?”: Why Religious Parents and Communities May Fear the Future Regarding State Interests and Custodial Law

I. INTRODUCTION "To rip up hundreds of parents and children and put them in a makeshift prison while you investigate to see if they did anydiing wrong is un-American," according to attorney Dick DeGuerin.1 "You shouldn't be allowed to search a whole village on the basis of a phone call[,] and not only search the area where there might be evidence but search every residence in the village[.] That's never happened in American jurisprudence," stated Tucson attorney Mike Piccarreta.2 These comments referenced the State of Texas's April 2008 actions toward die Fundamentalist Church of Jesus Christ of Latter-day Saints ("FLDS"), where Texas law enforcement officers and the Texas Department of Family and Protective Services ("DFPS") raided the FLDS's Yearning for Zion Ranch ("YFZ Ranch") location in search of an allegedly sexually abused 16-yearold female.3 Although the supposed victim was never found, Texas officials eventually took 468 children4 from the YFZ Ranch, allegedly because of an "immediate" and "urgent" need for removal5 based upon the community's common belief system and living style. DFPS's invasion of the YFZ Ranch community constituted an almost unprecedented child removal operation. Although past attempts against similar communities have occurred,6 this focus on child removal apart from polygamy7 was unique and may cause parental concern regarding state removal and termination actions within a religious context.8 Undoubtedly, physical, sexual, and psychological child abuse constitute deplorable activities, and suspected occurrences should be investigated and potentially prosecuted.9 A child found within that situation should be assisted and provided protection (within constitutional statutory guidelines).10 However, are state actions toward protecting children from potential abuse (as happened at YFZ Ranch) justified in an immediate removal of virtually all children living within a religious community upon the basis that the potential practice of the community's "pervasive belief system" perpetuates an abusive situation and can be imputed to every parent within the community?11 Other religious parents and communities may be understandably concerned with the potential for similar governmental actions and accompanying justifications focused on religious belief. These parents and communities may wonder how DFPS actions comport with typical child removal and termination standards, and how diese standards apply in a religious context.12 There may be legitimate fear that child removal and termination of parental rights could occur based on specific religious beliefs seen as "pervasive" throughout a religious community.13 This fear may escalate if a religious community's pervasive beliefs could be assumed as belonging to every parent within the community, thus implying that each parent will practice every tenant of those beliefs, especially if this created an immediate and urgent need for child removal in the eyes of the State. In other words, can a child be removed, and parental rights terminated, for religious reasons? This Comment explores child removal and parental right termination standards in order to determine whedier either action can overtly or covertly occur under a religious pretext, and what potential protections religious parents and communities would have in such a situation. Ultimately, this Comment concludes that, although DFPS's actions at the YFZ Ranch could cause alarm for religious parents and communities, parents' religious beliefs and actions concerning their children likely will not warrant removal and/or termination absent a clear and convincing showing that the effect of such belief causes significant abuse.14 Therefore, judicial and legislative protections are in place to determine whether removal and termination can occur under perceived arbitrary state action within a religious context.15 However, despite these protections, religious parents may maintain some apprehension because removal and termination actions for religious reasons could potentially still be justified under broad statutory definitions and judicial interpretations based on potential subjectivity often inherent in terms such as "abuse," "social good," "welfare," and "aggravated circumstances. …