AUSTIN – A state appeals court ordered many though perhaps not all of a polygamist sect’s children returned to their parents Thursday, saying Texas failed to prove they were in physical jeopardy and urgently needed to be separated from their families.
The mere existence of a belief system that may condone polygamy and “spiritual marriages” involving underage girls is not by itself enough evidence to justify the removal of some 460 children from the sect’s ranch, said a three-judge panel of the Austin-based 3rd Court of Appeals.
In their unanimous opinion, Republican judges Kenneth Law, Robert Pemberton and Alan Waldrop said Child Protective Services had to show every individual child was at imminent risk of physical harm and simply had to be swept into foster care. CPS instead offered only sketchy evidence to a trial court last month – and none about whether it explored less intrusive ways of protecting kids, the judges said.
CPS, represented by the attorney general’s office, could appeal to the Texas Supreme Court. Both state agencies were tight-lipped about their plans late Thursday.
On its Web site, CPS said, “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.”
Meanwhile, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints and their lawyers exulted.
“It’s just the most unbelievable … ,” sect spokesman Willie Jessop, reached moments after he learned of the court’s decision, said, his voice breaking with emotion. “It’s beyond words right now.”
Although sect members “are elated,” Mr. Jessop said, there “won’t be any celebration until little children are hugging their parents.”
In their nine-page opinion, the appellate judges refrained from blistering CPS but nonetheless demolished its legal rationale for removing all children from the sect’s Yearning for Zion ranch in Eldorado after an April 3 raid.
CPS showed that 20 sect females had become pregnant between the ages of 13 and 17. The judges said 15 of them now are adults. The five who remain minors “are alleged to have become pregnant at the age of 15 or 16,” the judges said.
They said, though, that “there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation” that the sect “condoned underage marriage and sex.”
CPS presented no evidence that sect boys or the group’s girls who have not reached puberty were victims of sexual or physical abuse, or likely to be, the judges said.
They also said removing hundreds of children under such circumstances is an “extreme measure” and that CPS didn’t make a reasonable effort “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.”
They said the 51st District Court in San Angelo – presided over by Judge Barbara Walther – “abused its discretion in failing to return the children” to their mothers after CPS put on such an insufficient amount of evidence before her last month.
CPS “did not carry its burden of proof” at so-called adversary hearings before Judge Walther on April 17 and 18, the judges said.
In San Angelo, hearings that have been held all week on what sect parents need to do to get their children back were immediately halted – at least until after the holiday weekend.
“It is a great day for families in the state of Texas,” said lawyer Julie Balovich of Texas RioGrande Legal Aid.
Martin Guggenheim, a child welfare and constitutional law expert at New York University, said the decision is “vital to civil liberties,” and that CPS – though acting in good faith – clearly didn’t present enough evidence to justify removing the sect children.
“This is about whether we allow state officials to do what they wish when they are doing it with good intentions, or whether we say that’s not really enough,” Mr. Guggenheim said. “I’m proud of a court that says that’s not really enough.”
Lawyers said that even if CPS doesn’t appeal, the ruling, at least initially, affects only 41 sect mothers.
They include 38 who are represented by Ms. Balovich’s Austin-based group and who last month sought an order freeing their children; and three others who on May 9 filed a similar request.
Dallas corporate appellate lawyer David Schenck – who wrote the second group’s request, known as a petition for a writ of mandamus – said he expects all of the estimated 140 mothers affected by CPS’ raid to now ask Judge Walther to return their youngsters.
“I think she likely will comply with it, unless the Texas Supreme Court does something,” said Mr. Schenck, who volunteered his time to help Fort Worth-based Legal Aid of Northwest Texas, which represents 58 sect mothers.
CPS said it respects the judges’ authority, though it expressed no regrets.
The agency posted to its Web site a statement saying child-abuse investigators found “a pervasive pattern of sexual abuse that puts every child at the ranch at risk.” It said sect records listed “as wives” nine girls who are 16 and 17 and who until last month lived at the ranch.
Gov. Rick Perry said through a spokeswoman he’s “confident that the state’s lawyers will review the appropriate next steps in this case to ensure the safety and welfare of the children involved.”
Experts on civil procedure said Attorney General Greg Abbott would have to seek immediate review by the state Supreme Court if Texas has any hope of keeping custody of the children.
Lonny Hoffman, a University of Houston law professor, said if the Supreme Court decides to hear any appeal brought by Mr. Abbott, it probably would leave the children in CPS custody – for fear of doing “irreparable harm” – while justices consider the case.
“If the 3rd Court of Appeals is wrong, and those kids are in danger, [returning them to their families] is something they can’t repair,” Mr. Hoffman said.
Alexandra Albright, a civil procedure expert at the University of Texas law school, said the state is probably already working on its request to the Supreme Court, and that the court would probably act fast to accept the case. She agreed the state would probably maintain custody of the children pending resolution of the case.
“This case – there’s a lot of press, a lot of kids involved,” she said. “We all know what the considerations are. I’m sure they would act pretty quickly.”
One expert on the sect said there’s a chance some children, if freed, would be moved across state lines while others would return to the ranch.
Ben Bistline, a Utah-based author and former sect member who left the breakaway Mormon group voluntarily, predicted that the children with monogamous parents would probably return to the ranch, while those living in polygamous households would be forced to scatter.
“Those afraid of being arrested will leave with their families,” he said. “They’ll just come back here, or go to another compound in Colorado City, in South Dakota, in Idaho.”
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