Thursday, May 22, 2008

Texas Third Court Of Appeals Rules That Texas DFPS Grounds For Removing FLDS Children Were "Legally And Factually Insufficient" Under The Law

On May 22nd, 2008, justice returned to Texas. The Third Court of Appeals in Austin ruled that the grounds for removing the children were "legally and factually insufficient" under Texas law, although they did not immediately order the return of the children or any other remedy. National stories provided by CNN and ABC News.

Texas media stories published by the Austin American-Statesman, the San Angelo Standard-Times, and the Houston Chronicle.

Utah media stories published by the Deseret News (186 public comments already posted), the Salt Lake Tribune, and KSL Channel 5 (300+ public comments already appended to this story).

The Texas Third Court of Appeals ruled 51st District Judge Barbara Walther's court "abused its discretion" by relying on "legally and factually insufficient" evidence to maintain custody of children whose parents are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. The immediate ruling applies to 48 of the mothers, but by extension, attorneys expect it to apply to nearly all the roughly 455 cases.

Click HERE to read the complete court decision. Hat tip to VNN Forum for posting the link. Here are the court's significant findings:

The Department failed to carry its burden with respect to the requirements of section 262.201(b). Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9) The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child-rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children.
(10) There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy. Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, (11) there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl.
(12) After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.

We find that the Department did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children
(13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.

Applicable Footnotes Referenced In The Excerpt:

- (9). The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children--much as there are differences of opinion regarding the details of religious doctrine among other religious groups.

- (10). The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.

- (11). The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.

- (12). The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.

- (13). The children referred to are those children reflected on Appendix I to Relators' reply brief and who are still in the custody of the Department.

Judge Barbara Walther has ten days to respond to the appeals courts' ruling, if she intends to appeal.

The Texas Rio Grande Legal Aid Society (TRLA) represented 48 FLDS mothers. TRLA attorney Julie Balovich said, "The way that the courts have ignored the legal rights of these mothers is ridiculous. It was about time a court stood up and said that was, has been happening to these families is wrong."

Patrick Crimmins, A spokesman for Texas Child Protective Services (CPS), relased a statement saying, "We just received the information from the court of appeals, and it's being reviewed. We are trying to assess the impact this will have on our case. Any decision regarding an appeal will be made later." And here is the full statement, posted on the Texas Department of Family and Protective Services website:

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 Department of Family and Protective Services removed children from the Yearning for Zion Ranch in Eldorado after finding a pervasive pattern of sexual abuse that puts every child at the ranch at risk. [Ed. Note: And here's the problem - they are presuming EVERY child is at risk. This violates the customary American presumption of innocence - and it cost them in court today.]

The very first interviews at the ranch revealed a pattern of underage girls being “spiritually united” with older men and having children with the men. Investigators also observed a pattern of organized deception in those first interviews. Women and children frequently said they could not answer questions about the ages of girls or family relationships. Children were moved from location to location in an apparent attempt to prevent investigators from talking to them. Investigators observed numerous girls who had small children, and girls told us that marriages could occur at any age.

An examination of evidence found at the ranch further confirmed the pervasive pattern of sexual abuse. A Bishop’s Record detailing family relationships listed 13 girls who were ages 16 and 17, including nine living at the YFZ Ranch. All nine of the girls living at the ranch were listed as wives in the document, which was entered into evidence during the 14-day hearing in San Angelo.

While our only duty is to the children, we respect that the court’s responsibility and view is much broader. We will work with the Office of Attorney General to determine the state’s next steps in this case.

For all other information on the Eldorado situation, please visit our
Eldorado Information home page

The woman who helped send FLDS leader Warren Jeffs to prison said she has mixed feelings about fundamentalist children returning to the parents. Elissa Wall said she feels for the FLDS children in Texas protective custody but believes this could hamper the state's investigation. She also stated, "And the sad thing is, is these people is so sequestered, and they are so secret that we don't know if these children will just disappear now, once they go back."

The former FLDS child bride told KSL's "Doug Wright Show" that she worked with officials in the Lone Star State and says this may have never happened if members of the ranch would have been upfront and honest. She believes CPS officials did the right thing after entering the ranch.

Child welfare officials removed the children on the grounds that the sect pushed underage girls into marriage and sex and trained boys to become future perpetrators. Their implication was that merely living in an FLDS environment constituted a danger to the children. However, the appellate court ruled the chaotic hearing held last month did not demonstrate the children were in any immediate danger, the only measure of taking children from their homes without court proceedings.

Good decision by the Texas appeals court - my faith in the state has been somewhat restored. While protection of children is important, we have long since breached a property balance between liberty and safety. We cannot allow the Constitution to be ripped to shreds in the name of so-called "child safety". We cannot allow the state to continue to escalate their loco parentis powers.

For more from the FLDS perspective, continue to monitor the CaptiveFLDSChildren website and the FLDS View blog.

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