Photo LM Otero/Associated Press
Justice is finally rearing its head in the ugly West Texas raid on the FLDS YFZ ranch. The Salt Lake Tribune is reporting that a Texas appeals court has ruled that Texas did not have sufficient evidence to seize all 400 plus children in its ludicrous actions last month:
SAN ANGELO, Texas — It is not yet clear how soon children from a polygamous sect’s ranch will return home, now that a Texas appeals court has ruled child welfare officials did not have the right to seize them.
The Third Court of Appeals in Austin has ruled the state did not have sufficient evidence that more than 400 children on the ranch were in immediate danger.
In its ruling, the appellate court summarized the evidence upon which Texas relied :
In this case, the Department relied on the following evidence with respect to the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:
* •Interviews with investigators revealed a pattern of girls reporting that “there was no age too young for girls to be married”;
* •Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
* •Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
* •Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen; (5)
* •The Department’s lead investigator was of the opinion that due to the “pervasive belief system” of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
* •All 468 children (6) were removed from the ranch under the theory that the ranch community was “essentially one household comprised of extended family subgroups” with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch “household”; and
* •Department witnesses expressed the opinion that there is a “pervasive belief system” among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this “pervasive belief system” poses a danger to the children.
As I, and many, many others have commented in previous posts, this evidence was meager at best, and not likely sufficient to meet the statutory requirement.
The appellate court also listed the undisputed evidence established at the trial court level:
In addition, the record demonstrates the following facts, which are undisputed by the Department:
* •The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department’s assertion that the “pervasive belief system” of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
* •There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
* •While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, 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 girls were living in an FLDS community with a belief system that condoned underage marriage and sex; (7)
* •There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
* •With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
* •The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators’ children are among the five the Department has identified as being pregnant minors; and
* •The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because “there is a mindset that even the young girls report that they will marry at whatever age, and that it’s the highest blessing they can have to have children.”
The appellate court then set forth its ruling and rationale that Texas simply did not carry its evidentiary burden at the trial court level. In other words, Texas was not justified in taking every single child from their mothers, fathers, and homes at the ranch:
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.
Of course, the appellate court is exactly correct in this analysis. This was such an easy finding to make. The fact that Judge Walther did not make the finding speaks volumes of her poor judicial analysis at the trial court level, and frankly I think her level of incompetence in this case. The appellate court immediately picked up on the fact there was absolutely no evidence supporting the allegation that all 400 plus children were in immediate physical danger. They also pointed out that targeting the FLDS belief system was not sufficient to meet the statutory requirements.
The appellate court did not buy the state’s argument that the entire FLDS ranch was one household and that the fact that a few minor girls appeared to be pregnant, or who had given birth necessitated the removal of every child at the ranch:
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.
For those who have followed this saga through the posts and comments over here, you will recall that in prior discussions I highlighted the legal requirements (see also here) the Texas Family Code sections required before children could be removed from their homes and families. These sections also mandated that the state make every effort possible to avoid that drastic measure. The appellate court noted the state made essentially no effort to comply with that statutory requirement. Again, this was a no brainer. Judge Walther failed miserably in her handling of this matter at the trial court level:
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.
The appellate court concluded its opinion by noting that not only did the state not carry its burden of proof, but that the trial court, Judge Walther, abused her discretion in making the findings and rulings that she did. Judge Walther could and should have returned those children when she conducted what turned out to be a kangaroo court. Judicial Smackdown!
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.
The Washington Post (linked below) column quotes Julie Balovich, an attorney with Texas RioGrande Legal Aid:
In its ruling, the appeals court directed a district court to vacate its temporary orders granting custody of the children to the Department of Family and Protective Services. The department can appeal the decision, however, and attorneys for the mothers said it was not immediately clear when they might be reunited with their children.
“It’s a great day for families in Texas,” said Julie Balovich, an attorney with Texas RioGrande Legal Aid, which represents the 48 mothers in the case. “It’s a great day for justice in Texas.”
She told reporters that the appeals court decision gives the trial court 10 days to comply. The decision “covers only the mothers we represent,” Balovich said. Ultimately, however, “I believe that it’s going to apply to all the children and all the mothers,” she said.
In short, this is very much a victory for the FLDS mothers who brought the appeal. More important, it is a victory for due process, which was sorely lacking in this case. It is a victory for the rule of law. It is a victory for the First Amendment. It is a victory for these innocent children who did absolutely nothing wrong, yet were wrenched from their lives, families and homes by the State of Texas because of what their parents believed and practiced as a religion. Let’s hope the children are reunited as quickly as they were yanked away from their mothers by Texasl
Texas Defends Actions:
In a surreal response to the appellate court’s ruling, Texas officials still defend their gestapo like tactics and the removal of every single child from the ranch. From the Salt Lake Tribune:
SAN ANGELO, Texas – Child welfare authorities are defending their seizure of more than 400 children from a polygamous sect’s ranch near here and deciding their next move, following an appeal courts’ sharp rejection Thursday of the removal.
In a statement on its Web site, the Department of Family and Protective Services recounts the evidence it felt showed the children were in danger. But it concludes: “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.”
This is the nonsense Texas’ Department of Family and Protective Service listed on its website today:
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.
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.
Breath taking! They provide shallow conclusions emphatically rejected by the appellate court. And, they still provide absolutely no credible evidence to support those baseless allegations. Despite the CPS chant over and over again of a pervasive pattern of sexual abuse out at the ranch, not one–repeat–not one individual has been charged with any crime. It makes my head spin.
Texas concedes 15 mothers adults (Salt Lake Tribune) Oops!
The Local Crank (A Texas Family Lawyer’s Blog)
Appeals Court Supports FLDS (Artemis at Feminist Mormon Housewifes–Thanks Artemis for your posting this over at fMh)
FLDS Justice is Served (Simple Utah Mormon Politics)
Volokh Conspiracy (Follow and read his links–all very good)
Yearning for Evidence (Slate)