ELDORADO — The attorney for the polygamist group that has seen all 416 children removed from its West Texas compound said Saturday that the sect’s followers may pursue more legal action after a judge’s ruling Friday that keeps the kids in state custody.
Rod Parker, an attorney for the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), said District Judge Barbara Walther’s custody hearing ruling went too far in keeping all of the children from their mothers.
“There needs to be an appeal,” Parker said.
But Parker, a Salt Lake City attorney who did not represent any of the sect’s members in court, said it would be up to the Texas attorneys who represented the children to decide what legal recourse to take. He also questioned the judge’s order for DNA paternity testing.
“To me, it seems very intrusive,” Parker said. “I don’t know if every single child has a birth certificate out there, but most of them do. This could have been handled without instructing every single person to undergo testing.”
The Texas Department of Family Protective Services applauded the judge’s ruling, which leaves the children under state jurisdiction for at least the next two months, because it “stops the abuse and keeps all the children safe” without compromising freedom of religion.
“It is not a decision about religious freedom,” the department said in a statement late Friday. “The children will be allowed to worship freely. We respect and value the strong sense of faith these children have.
“We are not trying to change them; we are trying to keep them safe.”
DNA paternity testing
In making her ruling, Walther said a mobile lab would be taken to the Tom Green County Coliseum and Wells Fargo Pavilion on Monday for the women and children currently in shelters and to the Schleicher County Courthouse on Tuesday for the men and women living in the compound near Eldorado.
Sampling will probably take more than two days to complete, Darrell Azar, a spokesman for Child Protective Services, told The Associated Press. Results could take more than a month.
As sampling is completed, the agency will begin moving the children from the San Angelo coliseum and fairgrounds to other sites, and mothers 18 and older will no longer be allowed to stay with them, Azar said. Adult mothers of children ages 4 and younger had been allowed stay together since the state took custody of the children from the ranch.
CPS will also try to keep siblings together, he said.
“We’re going to make these transitions as easy as possible,” Azar said. “We want to keep them together as much as possible so they don’t feel they’re completely isolated from their culture or the people they know.”
Will Walther’s ruling stand?
Dallas family law attorney Mary Jo McCurley, whose firm represents three of the children from the sect, said attempts to appeal the judge’s ruling would likely face an uphill climb.
“They could go to federal court and try to get them to say that the state statute is overly broad or is unconstitutional on freedom of religion grounds, but I think that would be a stretch,” McCurley said. “Or they could ask the state court of appeals to overturn [the judge’s ruling], but I doubt they’d succeed. So, I think we’ll have to watch and see what happens over the next 60 days.”
Jack Marr, a Victoria attorney who is president of the Texas Family Law Foundation, called the order requiring DNA paternal testing highly unusual even in a case that appears to set new boundaries nearly every day for what is usual in a child custody case.
“I’m not saying that the judge has no legal authority for ordering the mass paternity tests, I’m saying I’m not aware of any authority for her doing so,” Marr said in a telephone interview. Such tests are more commonly ordered, he said, when someone is either seeking to establish himself as a father or seeking to prove he is not.
Marr, who is not involved in the case involving the sect, said the judge’s ruling was probably in keeping with public sentiment and follows the normal response when complaints of abuse inside a household are presented.
“Judges typically err on the side of taking the child out of what might be an abusive situation,” Marr said.
The judge’s ruling also raises what could prove to be a far-reaching question of what constitutes a dwelling. Under Texas law, he said, a dwelling is not defined but is generally considered to be a house or apartment.
If the children removed from their families because at least some abuse occurred at the children’s dwelling place — in this case the YFZ (Yearning For Zion) Ranch — families in apartment complexes where youngsters often roam from unit to unit where a variety of caregivers look after them from time to time could find themselves in similar circumstances if abuse is alleged.
“I think this case could have far-reaching implications,” Marr said.
Will the men show up?
Outside the FLDS compound, it was quiet Saturday with the exception of a few media representatives camped outside YFZ Ranch gates.
In Eldorado, local residents expressed skepticism that all of the men ordered to take the paternity tests will show up at the courthouse.
“Good luck with that one, judge,” joked Eldorado Mayor John Nikolauk, who had just returned from taping the Dr. Phil television program. “Based on their actions so far, I don’t see that happening. They are reclusive.”
Questions and answers
Can the judge’s ruling be appealed?
The Friday ruling can be challenged by a procedure referred to as “mandamus.” A mandamus is an order from a higher court to the lower court to correct a ruling if it is found that the lower court ignored existing law. The ruling may also be subject to challenge in a federal court on the basis of a denial of due process or a violation of other constitutional liberties.
What’s next for the children?
Within 60 days, a status hearing must be held to review the case and develop a plan for the next phase. The plan may state whether the goal is to return the child to the parents or whether the parents’ rights should be terminated and the child placed for adoption.
When is a final determination on custody made?
Within 12 months after the date the child was removed the home. Upon request, a six-month extension may be granted, but by law the case will be dismissed if there’s no determination after 18 months.
Source: The Texas Family Law Foundation, www.texasfamilylawfoundation.com
By the numbers
416: The number of children in state custody.
Unknown: The number of boys and girls.
139: Number of mothers at the YFZ Ranch
60: Number of men believed to be on the ranch
Source: Texas Department of Public Safety, Child Protective Services