Court Sides with FLDS

May 23, 2008 permalink

A Texas appellate court has ruled that the FLDS children were not in imminent danger and there is no legal justification for their seizure under pretext of child protection. We have a press report below, and you can read the original Texas Court of Appeals decision (pdf). The court found that growing up among teachings promoting early marriage for girls did not place them in imminent physical danger. It did not deal with the issue that the phone call initialing the raid was a hoax.

expand

collapse

The New York Times

May 23, 2008

Court Says Texas Illegally Seized Sect’s Children

By RALPH BLUMENTHAL

HOUSTON — A Texas appeals court ruled on Thursday that the state had illegally seized up to 468 children from their homes at a polygamist ranch in West Texas. The decision abruptly threw the largest custody case in recent American history into turmoil.

LM Otero/Associated Press
Fundamentalist Church of Jesus Christ of Latter Day Saints members left the courthouse on Thursday after a ruling in their favor in San Angelo, Tex.

Although the court did not order the children’s immediate release, it raised the prospect that many of them would be reunited with their families, possibly within 10 days. The children have been in foster homes scattered across Texas since early April, making their parents travel hundreds of miles to visit them.

Officials of the State Department of Family and Protective Services, which led the raid on the ranch in Eldorado, defended their actions as being taken in the children’s interest and said they were considering their next steps.

The unanimous ruling by three judges of the Third Court of Appeals in Austin revoked the state’s custody over the children of 38 mothers and, by extension, almost certainly the rest, for what it called a lack of evidence that they were in immediate danger of sexual or physical abuse.

One mother, Martha Emack, 23, said she was “totally thrilled” by the ruling. “Everyone is totally overjoyed to tears,” she said in a telephone interview.

Ms. Emack said both of her children had been seized — one just turned a year old and the other 2. “It’s been very emotional, very traumatizing,” she said.

When asked whether she ultimately wanted to return to the ranch with her children, Ms. Emack said quickly, “I do want to go back.”

The court said the record did “not reflect any reasonable effort on the part of the department to ascertain if some measure short of removal and/or separation would have eliminated the risk.”

It said that the evidence of danger to the children “was legally and factually insufficient” to justify the removal and that the lower court had “abused its discretion” in failing to return the children to the families.

The ruling, an unusual opinion granting relief in a case not yet decided, was issued on the custody challenge by the 38 women and an additional 54 who filed a second action. Lawyers said the burden was on the state to show why it should not apply to the rest of the children, as well.

Custody hearings under way before five judges in San Angelo were canceled.

Susan Hays, a lawyer in Dallas who specializes in appellate law and who is the lawyer for a 2-year-old taken from the ranch, said the children might begin returning home as early as next week.

“Right now, there is an order saying return the children,” Ms. Hays said. “It technically does not apply to all the women’s children. But practically it does.”

She said the state would have to file a motion for emergency release quickly that asks the court to stay the order.

“If they don’t,” Ms. Hays said, “then we’re done. The children could be returned as soon as next week, or not depending on what happens with the high court.”

The case began on April 3, when Texas investigators, saying they were responding to a girl’s call for help, raided the 1,691-acre Yearning for Zion ranch of the Fundamentalist Church of Jesus Christ of Latter-day Saints in Eldorado, about 45 miles south of San Angelo.

The caller was never found, and investigators now suspect that the call was a hoax.

The polygamous sect broke away from the Mormon church decades ago over the Mormons’ condemnation of plural marriage and began building its secluded compound in Eldorado in 2003.

The sect’s leader, Warren Jeffs, was sentenced last November in Utah to 10 years to life in prison for forcing a 14-year-old girl to marry her 19-year-old cousin and to submit to sexual relations against her will,

In a statement after the ruling on Thursday, the Department of Family and Protective Services said: “Child Protective Services has one duty: to protect children. When we see evidence that children have been sexually abused and remain at risk of further abuse, we will act.”

The agency said it removed the children “after finding a pervasive pattern of sexual abuse that puts every child at the ranch at risk.” The officials said interviews “revealed a pattern of under-age girls being ‘spiritually united’ with older men and having children with the men.”

“We will work with the Office of Attorney General to determine the state’s next steps in this case,” the department said.

The appeals judges who ruled, Chief Justice W. Kenneth Law and Justices Robert. H. Pemberton and Alan Waldrop, all Republicans, said removing children from their homes was “an extreme measure” justifiable only in the event of urgent or immediate danger.

Instead, the court said, the state argued that the “belief system” at the ranch condoned under-age marriage and pregnancy and that the whole ranch functioned as a “household” in which sexual abuse anywhere threatened children in the entire community.

But in reality, the judges said, there was no evidence of widespread abuse, and they faulted the district judge, Barbara Walther, for approving the children’s removal based on insufficient grounds.

David Schenck, a Dallas lawyer who represented one mother, Marie Steed, said that the appeals court had asked the state to respond to the women’s motion by last Monday and that the state had asked for more time.

“This was the court’s answer,” Mr. Schenck said.

The ruling was hailed by the Liberty Legal Institute, which litigates cases of religious freedom.

“One message from this decision is clear,” the group said. “The rights of every Texas parent will be taken seriously, no matter who you are.”

Jim Cohen, a law professor at Fordham University, said it was highly unusual for an appeals court to intervene in a continuing case, especially one involving child protection.

“It showed the proof was really weak, not a close call at all,” Professor Cohen said.

Tim Edwards, a lawyer in San Angelo who represents four mothers, said: “This is a wonderful day. It confirms not only my feeling, but the feeling of many, many attorneys involved in the case, that Child Protective Services failed to meet their burden of proof to justify a court order to remove more than 400 children from their homes for the last six or seven weeks.”

Mr. Edwards said even if the children went home soon, the effects were likely to linger.

“You’re talking about a situation that is traumatic to many people,” he said, “and the recovery from that trauma may be slow in coming.”

Cynthia Martinez, a spokeswoman for Texas RioGrande Legal Aid, which represents many of the women, said sentiments varied. Many mothers, Ms. Martinez said, voiced “a general concern that the ranch had lost its purpose because the mothers and children’s last memory is of the ranch being raided, and that is a huge concern for a lot of these parents.”

Ms. Hays said she was surprised by the judges, whom she described as among the most conservative on the court. “This ruling restored my faith in the rule of law,” she said. “This is an opinion based on law and not politics.”

Laura Nugent, a lawyer in Austin who represents four of the children, said she was thrilled. “I feel this is the correct way to rule on the evidence,” Ms. Nugent said. “I felt all along that the department did not bear their burden of proof.”

Ms. Nugent, whose clients are 6, 10, 11 and 12, said she was unsure whether the ruling applied to all the children she represented and was awaiting details.

“They all want to go home,” she said. “They are emphatic that they want to go home and be reunited with their parents and their siblings.”

This is not the first time a raid on polygamists may have backfired. In 1953, Arizona authorities under Gov. Howard Pyle raided a fundamentalist community, Short Creek, which is now Colorado City, Ariz., and Hildale, Utah, taking about 160 children into custody. The custody ruling was overturned on appeal in 1955.

Reporting was contributed by John Dougherty in Las Vegas, Dan Frosch in Denver and Gretel C. Kovach in Dallas.

Source: The New York Times

Texas DFPS Public Information Officer Marleigh Meisner, April 2008

Addendum: It is easier to get a court to give a favorable decision than to get child protectors to pay attention to it. Texas child protectors are appealing the decision invalidating their seizure of over 400 children from the FLDS ranch. Even if the courts are against them after appeals are exhausted, we can expect a long period of foot-dragging before the children are returned. We enclose two articles, one on the appeal and another indicating that a small number of children will be reunited with their families.

expand

collapse

Texas fights return of FLDS kids

Top state justices to mull case

By Ben Winslow and Brian West, Deseret News, Published: May 24, 2008

SAN ANGELO, Texas — The day after FLDS mothers celebrated an appeals court decision ordering the return of their children, child welfare officials went to the Texas Supreme Court to prevent it.

The Texas Department of Family and Protective Services asked the Supreme Court to stay the 3rd Court of Appeals order and keep the children where they are, in foster facilities, until the high court considers its arguments. Attorneys argued the more than 450 children will "suffer irreparable harm" if the appellate court order is followed and says the children "will be at risk of sexual and emotional abuse" if returned to their parents.

Attorneys for dozens of FLDS mothers wasted no time responding, filing papers with the high court just hours afterward. The mothers argued any delay returning the children will cause "continuing, irreparable harm every day that they are separated from their parents."

Ostler McCarthy, staff attorney for the Texas Supreme Court, said the justices requested the trial record Friday from the 3rd Court of Appeals — an indication that it plans to work on the case over the weekend.

Rod Parker, a Salt Lake attorney representing the Fundamentalist LDS Church, said the state's appeal will be an uphill battle for Texas authorities.

"They ought to take a step back and think about what they're doing here and if it's really best for the children in the face of what's happened to them so far and their inability to produce any evidence," he said.

"This is an agency that's out of control."

In the first paragraph of its appeal, attorneys for DFPS wrote: "This case is about adult men commanding sex from underage children; about adult women knowingly condoning and allowing sexual abuse of underage children; about the need for the department to take action under difficult, time-sensitive and unprecedented circumstances to protect children on an emergency basis ... "

It also questions the appeals court's order to return the children "without giving the court the opportunity to determine which parents are entitled to possession of which children."

DFPS has complained that children switched names and both children and mothers have refused to answer questions about identities or family relationships, making it difficult to determine which child belongs to which parents.

"The children have a constitutional best interest right to know with absolute certainty who their parents are. Due to the orchestrated conspiracy of silence, neither the department nor the trial court was able to match alleged parents with the children," state attorneys argued, adding that it was important to establish relationships to determine potential risks of sexual abuse.

"This is a desperate argument on behalf of the state," countered attorney Amy Warr, who helped write the response to the DFPS appeal.

"The matching of children with parents did not become a problem for the department until a court decided that it had to give the children back," the response by Texas RioGrande Legal Aid states. DFPS knows the correct identities, the mother's attorneys argued, especially since the department allowed the mothers to visit their children, participated in status hearings and presented service plans that name the children and their parents.

The appeal by Texas authorities repeats allegations of a "pattern of girls reporting that there was no age too young" to be married and boys at the ranch are groomed to be "perpetrators."

DFPS identified five underage girls from "Bishop's Records" who are pregnant or had conceived a child, including one girl who was 13 when she conceived.

"By necessity, the record establishes that not only children as young as age 13 were pregnant but also that men must have engaged in the sexual abuse of children at least nine months before, if not at an even earlier age," the court document states.

The department justifies the removal of babies from the ranch, citing a Child Protective Services supervisor's statement that "the little boys, the babies, the girls, what I have found is that they are living under an umbrella of belief that having children at a young age is a blessing and therefore any child in that environment would not be safe."

Thursday's decision from the Court of Appeals "offers a poor analysis of misstated facts," and that court overstepped its authority in ordering that the children be returned, DFPS attorneys argued.

The department said it would not be safe for any child to return to the ranch "because the adults on the ranch expressed that they 'aren't doing anything harmful to their children.'"

In its response, Texas RioGrande Legal Aid attorneys said the appellate court decision to return the children does not mean Texas child welfare workers would no longer have oversight.

"The practical effect of this order is to allow the children to go home while the department continues its investigation. The department's suit regarding the children remains pending in trial court, which could issue any appropriate orders to protect the children's safety and ensure their continued presence in the state."

Attorneys for the FLDS mothers asked the Supreme Court to deny Texas' request to issue a stay of the appellate court order.

"Right now these children are experiencing the irreparable harm, pain and distress of enforced separation from their parents (and, in many cases, siblings)," the response states.

"By denying the stay and allowing the court of appeals order to take effect, this court would halt the only harm that everyone is certain is occurring. As the court of appeals correctly determined, there is no evidence of any equivalent harm — including abuse — that could justify the stay."

Contributing: Amy Joi O'Donoghue

E-mail: bwinslow@desnews.com; bwest@desnews.com

Source: Deseret News

---

CPS agrees to reunite 12 FLDS children with parents for now

May 23, 2008

SAN ANGELO, Texas (AP) — State child welfare authorities have agreed to reunite 12 children from a west Texas polygamist sect with their parents until the state Supreme Court rules on their custody case.

Teresa Kelly, a spokeswoman for the parents' lawyer, says Child Protective Services agreed on Friday to allow the parents to live with their children in the San Antonio area under state supervision.

An appeals court ruled Thursday that CPS was wrong to seize more than 440 children from a ranch run by the Fundamentalist Church of Jesus Christ of Latter Day Saints. The state appealed that ruling to the Texas Supreme Court on Friday.

CPS said it took the children into foster care because the sect pushes girls into underage marriage and sex and raises the boys to be perpetrators.

Source: Associated Press hosted by Google

Addendum: A knowledgeable source says that the families of the twelve children consented to a deal with CPS under which they will get their kids back, but be subject to impositions such a visits, counseling, parenting classes and such. They also forfeit the right to sue CPS for damages.