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Texas Loses Court Ruling Over Taking of Children

New York Times, USA
May 30, 2008
Ralph Blumenthal
www.nytimes.com

ReligionNewsBlog.com • Friday May 30, 2008

HOUSTON — Bringing polygamist families closer to regaining custody of their children, a divided Supreme Court of Texas agreed Thursday that the state had illegally seized 468 girls and boys from a West Texas ranch last month on unproven grounds of physical and sexual abuse.

State officials said they would move swiftly to return the children.

The decision upholding a ruling of the Third Court of Appeals last week directed a state judge to revoke the custody order taking the children from the Yearning for Zion ranch in Eldorado.

But it gave no timetable for their return and said that the Texas Department of Family and Protective Services could still seek authority to protect any of the children in individual cases.

The decision was supported in full by six justices; three justices dissented in part.

In a statement after the ruling, Patrick Crimmins, a spokesman for the Department of Family and Protective Services, which won custody of the children after a raid on April 3, said, “We are disappointed, but we understand and respect the court’s decision and will take immediate steps to comply.”

The statement added: “Our goal is to reunite families whenever we can and make sure the children will be safe. We will continue to prepare for the prompt and orderly reunification of these children with their families.”

Parents and their lawyers were jubilant. “It’s a great victory,” said Rod Parker, a Salt Lake City lawyer and longtime representative of the Fundamentalist Church of Jesus Christ of Latter-day Saints, which broke with the Mormon Church over the Mormons’ repudiation of plural marriage in the late 19th century.

“They confirmed what the Court of Appeals said, which is that the children were taken from their parents illegally and they must be returned,” Mr. Parker said by telephone from San Angelo, where the custody hearings were held before the children were sent to foster homes across Texas.

In its ruling on May 22, the Third Court of Appeals, in Austin, said the state had failed to establish any immediate danger to the children and called their seizing illegal. The state appealed.

The Supreme Court, in a terse ruling, said, “We are not inclined to disturb the Court of Appeals’ decision.” It added, “On the record before us, removal of the children was not warranted.”

In the partial dissent, Justice Harriet O’Neill said the state had acted reasonably in seeking to remove “demonstrably endangered” pubescent girls but abused its discretion by removing younger girls and boys, too.

In its petition to overturn the appeals court ruling, the Department of Family and Protective Services said girls in the compound had reported being consigned to marriages by a church elder, “Uncle Merrill,” and “no age was too young to marry, and they wanted to have as many babies as they could.” Boys, the agency said, “were groomed to be perpetrators.”

But the Supreme Court ruled that the agency had means short of wholesale removal to protect children in danger.

Some expressed disappointment at the turn of events. Benjamin G. Bistline, a former sect member and a historian in Colorado City, Ariz., said the ruling would encourage the church’s leaders to continue their practice of polygamy and under-age marriages.

“This will embolden them,” said Mr. Bistline, who has written a history of the polygamist community and who is now a member of the mainstream Mormon Church. “It’s definitely a big win for the polygamists.”

Rather than seizing children, Mr. Bistline said, the state should be focused on building criminal cases against sect leaders who are continuing to coerce girls into polygamous marriages.

Others hailed the ruling and the prospect for family reunions.

“There has been a catastrophic emotional and physical trauma to these families, permanent damage that will be left on them for a lifetime,” Willie Jessup, a church spokesman and elder, said at a news conference in San Angelo. “These people and little children will spend their entire life trying to understand what they have been through.”

Cynthia Martinez, spokeswoman for Texas RioGrande Legal Aid, which brought the appeal on behalf of the mothers, said by telephone: “We are extremely happy with the decision. Clearly the Supreme Court found it’s in the best interest of the children to be reunited with their families.

“We are communicating with our mothers right now, letting them know the news. They are one step closer to getting their kids back, and that’s been the most important thing to them this entire time.”

In Hildale, Utah, another sect stronghold, Mayor David Zitting said, “It sounds like good news” but he added he still had questions about the return of the children. Church leaders had moved many of the families from Hildale and Colorado City to the ranch in Eldorado, Mr. Zitting said, and it was unclear where they and their children would go now.

Some lawyers representing children were torn. Mary Jo McCurley, a Dallas lawyer and a former chairwoman of the state bar’s family law section, was appointed legal guardian of three of the children, including a daughter of the church’s prophet-leader Warren Jeffs, who is now in prison. Although the state did not win its case, Ms. McCurley said, it was important to remember that there were signs of abuse uncovered.

State and federal criminal investigations are under way and could still produce criminal charges.

“It’s really unfortunate, because obviously there are some children who have been sexually abused,” Ms. McCurley said. “But this doesn’t keep them from coming back and having another hearing. They could get their proof together, for example have a doctor come in and say this child is 13 years old and she has already given birth to another child, and the father of that child is 46 years old.”

John Dougherty contributed reporting from Las Vegas, and Gretel C. Kovach from Dallas.


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