A Texas appeals court has absolutely gutted the state's rationale for removing more than 460 children from the ranch of a polygamous sect, saying the group's “pervasive belief system” was not sufficient evidence of physical danger to the children.
The state contends the families who belong to the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) are in effect a “single household” united by the common belief that it is acceptable for girls to marry, have sex, and bear children as soon as they reach puberty.
During the April 3 raid on the FLDS' Yearning for Zion (YFZ) ranch in Eldorado, Texas, child welfare officials found five pregnant minors living there.
But 38 of the mothers at the ranch challenged the removal of their children. And in granting their petition for a writ of mandamus, the Third Court of Appeal in Austin soundly repudiated the state's “where there's smoke, there's fire” logic.
“The existence of the FLDS belief system as described by the [child welfare] Department's witnesses, by itself, does not put children of FLDS parents in physical danger,” the court said in a per curiam opinion, and
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, there is no evidence that this danger is “immediate” or “urgent” as contemplated by section 262.201 [of the Texas Family Code] with respect to every child in the community.
Section 262.201 says children can only be removed on an emergency basis from their homes if the state shows that there was a danger to their health and safety and that there was an urgent need for their protection which required their removal.
That showing, the court said, must be tailored toward whether the FLDS' beliefs have put “specific individuals” in danger. But the Texas Department of Family and Protective Services
failed to offer any evidence that any of the pubescent female children of the Relators [who filed the writ petition] 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 decision gives the trial court 10 days to vacate its orders granting temporary custody of the children to the state. An attorney for the mothers predicted it will become a precedent for other FLDS mothers at the ranch whose children have been taken from them.
“It's a great day for families in Texas,” said Julie Balovich of Texas RioGrande Legal Aid. “It's a great day for justice in Texas.”
The appeals court issued a similar order today in a case brought by three other FLDS mothers. In re Louisa Bradshaw.
The state will almost certainly appeal. But the removal of the YFZ children appears to be turning into as big a fiasco for law enforcement as the raid on the FLDS community of Short Creek, Ariz., in July 1953.
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UPDATES
The state filed an appeal May 23 with the Texas Supreme Court, arguing that "there was sufficient evidence ... that the household to which each child would be returned included a person(s) who had sexually abused another child." Another brief requests an emergency stay on the appeals court's order.
The Texas Supreme Court denied the state's appeal in a May 29 decision, finding that "On the record before us, removal of the children was not warranted." In a partial dissent, Justice Harriet O'Neill said "the trial court did not abuse its discretion as to the demonstrably endangered population of pubescent girls."
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By Matthew Heller
5/22/08 
