The Houston Chronicle reported today that FLDS members were called to testify before a grand jury today. Members may face indictment on charges of child abuse. However, the women called in to testify are refusing to do so by pleading the fifth amendment. For background information on this case, please check out our page, Yearning for Zion Ranch (FLDS) Cases.

The Houston Chronicle Article:

Female members of the polygamist sect are refusing to answer questions before a grand jury in West Texas meeting this morning to consider criminal child abuse charges against the group.

About nine women have been subpoenaed and about half have made it into the meeting room on the Schleicher County courthouse square, but all come out quickly after telling the grand jury nothing, said a 25-year-old member of the sect who would only identify himself as “Ben.”

“They are all taking the fifth,” he said as he and another member of the Fundamentalist Church of Jesus Christ of Latter Day Saints were snapping photos of government officials from inside their SUV in the courthouse parking lot.

Those called to testify have the right to invoke their Fifth Amendment privilege if the information they give could be used against them. Only one male member of the sect has been subpoenaed: Willie Jessop, the former bodyguard of jailed president and sect prophet, Warren Jeffs.

“It’ll all come out,” Willie Jessop said as he waited in the Schleicher County Courthouse to be called before grand jurors.

Asked if he expected members of his church to be indicted, he said. “I don’t know. I hope not.”

Jessop was stopped early today in Eldorado by law enforcement and handed a subpoena.

When asked how FLDS members were doing, he said: “Hopefully, they can answer that for themselves.”

One of the women who was called before the grand jury today was a 16-year-old at the center of a civil battle over which attorney represents her. The teen was married at 15 to 34-year-old Raymond Jessop, the son of Jeffs’ chief deputy, Merrill Jessop. She was the third girl from the Jeffs family to marry Raymond Jessop.

Two of her sisters were also married to Jessop. Also called before the grand jury were:

* Leann Jeffs, 17, who has a 1-year-old daughter.

* Veda Keate, 19, who was forced to give a third DNA sample to the Texas Attorney General’s Office earlier this month. It is not clear why another was needed. She has a 2-year-old daughter.

* Sarah Barlow Draper, 37, registered nurse and mother of four. She now works at an Abilene hospital where she lives with her children. She was once misclassified as an underage teen-ager by Texas Child Protective Services but proved to a court she was not. She is the former wife of ousted FLDS member Daniel Barlow, who was once mayor of Colorado City, Ariz., where the FLDS is mostly based.

* Annette Jeffs, Warren Jeffs first wife and the mother of the 16-year-old who was also called to testify.

Grand jurors filed into their meeting room shortly before 9 a.m. There, they will listen as lawyers from the Texas Attorney General’s Office present evidence that could result in indictments against members of the nation’s largest polygamist group for their role in arranging underage marriages.

The state of Texas in April raided the FLDS-owned Yearning For Zion Ranch north of Eldorado after receiving information that girls under age 18 were being placed in “spiritual marriages” with men.

Attorney General Greg Abbott entered the grand jury room at about 9 a.m. He is expected to oversee the presentation of evidence by his staff attorneys, Angela Goodwin and prosecution chief Eric Nichols.

Abbott’s presence at the proceeding is interpreted by those close to the investigation as an indication that indictments are imminent. However, a key issue today will be whether the state’s reliance on members of the FLDS, including several young girls, will stymie the pursuit of criminal charges.

During the grand jury’s first meeting on this matter in June, sources familiar with the proceedings have said, the girls took advantage of their Fifth Amendment rights to not answer questions on the basis that the information they gave could incriminate them.

Grand jury proceedings are closed to the public. A grand jury is made of local residents who consider the prosecution’s evidence and determine whether it is sufficient to charge defendants.

Even if indictments are returned, it is likely that the names of those indicted will be kept secret until after arrests have been made.

Since the April raid at the FLDS’s Yearning For Zion Ranch, church members have given different names and information to authorities, slowing the investigation process.

More than 400 children were removed from the ranch by Texas Child Protective Services after the raid, but they were returned a month later after the Texas Supreme Court said the agency did not prove that the children were so in danger that removal was the only option.

The FLDS began moving hundreds of its members to the 1,700-acre Yearning For Zion Ranch in 2004, about the time their president and prophet, Warren Jeffs, became wanted by police for his role in forcing young girls to marry in Utah.

The FLDS claims the twin border cities of Hildale, Utah, and Colorado City, Ariz., as home with satellite settlements in South Dakota and other states and in Canada.

Jeffs was convicted last year on two counts of being an accomplice to rape for his role in forcing a 14-year-old sect member to marry her 19-year-old cousin.

Since the raid on the ranch, the FLDS has announced it will no longer allow the marriage of girls younger than 18.

The FLDS is not affiliated with mainstream Mormonism, which denounced polygamy more than 100 years ago.

The New York Times Magazine also wrote an interesting article that discusses what some of the FLDS women have been going through.

A boy, was ordered by a rural school district (Needville ISD) located outside of Houston to cut his waist length hair due to its violation of the school district’s dress code. However, as reported by the Houston Chronicle, Michelle Betenbaugh, the boy’s mother, says that cutting his hair would conflict with his Native American religious beliefs and culture. The Chronicle reported yesterday that the family appealed to the Needville school board, but the board unanimously ruled against them. In response, lawyers for the family are debating whether to take the issue to court.

A court case would be quite interesting if it visits the two broader issue potentially at stake: the appropriate place of religious expression of students in public schools and the balance between students’ individual rights and the need for schools to ensure an ordered environment for education. Two previous Supreme Court cases come to mind that somewhat address both of these issues respectively: West Virginia State Board of Education v. Barnette and Tinker v. Des Moines Independent Community School District.

West Virginia (1943) is one of the so-called “Jehovah’s Witnesses Cases” from the 1930s and 1940s that helped to define more clearly which rights the First Amendment protects. This case was brought by Jehovah’s Witnesses who objected to the compulsory pledge of allegiance recitation in public schools. The Supreme Court agreed with the plaintiffs, stating that forcing public school students to recite the pledge of allegiance violated the establishment clause of the First Amendment.

Probably more on point, Tinker (1969) dealt with public school students who were suspended for wearing black armbands with the peace sign on them to school in protest of the ongoing Vietnam War. The Supreme Court ruled in favor of the students, stating that the school could not punish the students for wearing the armbands without evidence that this action was required to ensure order in the school.

Does this particular rule of restricting the length of boys’ hair pass the “Tinker Test?” That will (potentially) be for the courts to decide.

The most recent Huston Chronicle article:

The school board of this rural Fort Bend County school district denied a request to let a 5-year-old boy with long hair attend kindergarten this fall.

The parents of Adriel Arocha want the boy to wear his hair long for religious reasons, but his shoulder-length locks are in conflict with the district’s hair code.

The board voted unanimously to uphold an earlier decision made by district administrators who said the child must cut his hair if he wants to attend school in Needville.

The parents of the child, Michelle Betenbaugh and Kenney Arocha, decided to appeal that ruling to the board, which heard the case Wednesday night.

Betenbaugh told the school board that Native American religions have no books or Bibles to consult but said the practice of boys and men not cutting their hair is well-known.

Kenney Arocha said he was proud of his heritage and asking him to cut his son’s hair would be like asking him to give up his constitutional rights.

“Which rights would you take next?” he said.

But Needville Superintendent Curtis Rhodes said the child is not actually a student in the district, and it was premature to present the issue to the school board Wednesday night.

Nevertheless, Rhodes urged the board to deny the parents’ appeal of the administration’s earlier decision.

The family owns land in Needville and is in the process of moving to the city. They plan to register the child at the elementary school.

The attorney for the boy and his parents, Hal Hale, said he will discuss the matter with his clients before deciding what legal action to take. Hale said he might seek a temporary injunction asking a judge to force the district to let the child attend school. Or, Hale said, legal action might be delayed until the child actually enrolls in the district and tries to attend class with long hair.

Needville has strict rules about long hair on boys.

Betenbaugh is in the process of moving from Meadows Place to Needville and told school officials in May she planned to register her son for kindergarten and that he had long hair.

According to legal experts, courts have repeatedly backed educators in numerous lawsuits brought by students and parents regarding dress codes. But the same courts have granted students and parents some rights when it comes to hairstyles tied to religion.

Legal rulings regarding challenges to hair codes on religious grounds give school districts the ability to grant exceptions.

Betenbaugh said she has consulted lawyers about the issue and plans to take the matter to court.

On our previous post, Assessing Culpability for Parents Who Neglect Treating Sick Kids, author and journalist Shawn F. Peters tipped us off on the New York case of Barbara and Gideon Hershberger that he’s following on the Religious Convictions Blog, based in part on the reporting of WWNYTV in Amish Couple Accused Of Medical Neglect Of Toddler.

The Hershberger’s one year old son Eli, suffers from Tetralogy of Fallot, a congenital heart defect that while not immediately fatal, carries an estimated survival rate of 30% by ten years without corrective surgery. Prognosis with the surgery is generally a good one, the chance to lead a normal life, albeit with increased risk of cardiac arrest. The Hershberger’s, however, are Amish. As Peters notes in his post Developing Amish medical neglect case in New York, the Hershberger’s are objecting to the invasive nature of the heart surgery on religious grounds -

“The Amish religion does not forbid its people to seek modern medical care. When necessary, the Amish can have surgical procedures, dental work, anesthesia, or blood transfusions. Organ transplants are permitted, except for the heart. The Amish believe the heart is the soul of the body. (Exception: Pediatric patients who have not been baptized can receive a heart transplant.)”

Young Eli’s case is somewhat different than many of the medical neglect cases that have made headlines recently in that he’s not currently symptomatic and does not appear to be in any immediate medical danger, though the probability of death increases with each year to a statistical near-certainty. In these cases the court’s job is to weigh the rights of parents to raise their children as they see fit, including religious freedom, against the state’s significant interest in safeguarding the health and welfare of the child. Social Services has petitioned the court to have Eli removed from the home and placed in foster care in order to have the surgery.

ABC News and the ABA Journal reported today that a Massachusetts woman is being charged with child endangerment after she failed to pick up medications and take her 8 year old son to follow up treatments for his non-Hodgkin’s Lymphoma. At the time he was diagnosed with the disease, doctors indicated the boy would likely have a 90% chance of survival. However, due to lack of treatment, the boy’s cancer has returned, and doctors now say that his chance for survival has dropped down to 10%.

This case is pretty straightforward; however, it seems somewhat reminiscent of a less straightforward case reported by The Wall Street Journal three weeks ago about the debate over the right of parents to reject medical treatment for their children due to religious reasons.

The recent death from untreated diabetes of an 11-year-old Wisconsin girl has invigorated opposition to obscure laws in many states that let parents rely on prayer, rather than medicine, to heal sick children. Dale and Leilani Neumann of Weston, Wis., are facing charges of second-degree reckless homicide after their child, Madeline Kara Neumann, died on Easter after slipping into a coma. The death, likely preventable with insulin, has renewed calls for Wisconsin and dozens of other states to strike laws that protect parents who choose prayer alone in lieu of medical treatment.

Of course any decision would require states to walk a fine line between the freedom of parents to practice their religion and the responsibility of parents to take care of their children’s needs. Although they vary widely by state, 45 states currently have some sort of legal protection for parents who use spiritual healing. Some provisions uniformly protect parents from prosecution for solely pursuing spiritual healing for their children while others only protect parents from prosecution for said actions in misdemeanor cases. However, the article notes that states are slowly starting to rethink these statutes, opening parents who rely solely on spiritual healing to possible prosecution for child neglect and, in the Wisconsin case, reckless homicide. Some of these laws leave an important question hanging that states must resolve: “If a state permits people to employ prayers for healing, can it then hold a parent criminally liable if those prayers fail?”

Sources:

Wall Street Journal: A Child’s Death And a Crisis for Faith

ABC News: Mom Accused of Withholding Son’s Chemo