The Texas Supreme Court today upheld the lower appellate court ruling, which ordered the trial Judge Barbara Walther to vacate her order authorizing the removal of all the FLDS children from the YFZ Ranch. You can read the ruling here. The court began by relating some of the history of the raid, and noted interestingly that Texas authorites never even found the alleged 16 year old victim who started the entire fiasco in motion:
The Yearning for Zion Ranch is a 1,700-acre complex near Eldorado, Texas, that is home to a large community associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints. On March 29, 2008, the Texas Department of Family Protective Services received a telephone call reporting that a sixteen-year-old girl named Sarah was being physically and sexually abused at the Ranch. On April 3, about 9:00 p.m., Department investigators and law enforcement officials entered the Ranch, and throughout the night they interviewed adults and children and searched for documents. Concerned that the community had a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children, the Department took possession of all 468 children at the Ranch without a court order. The Department calls this “the largest child protection case documented in the history of the United States.” It never located the girl Sarah who was the subject of the March 29 call.
Of course the court mentioning that Texas never found Sarah is not the basis of the opinion; however, I found it interesting that the court would make note of it specifically in its recitation of the facts. It did not have to do that. And, the fact that it did was telling, in my opinion.
This is a very short opinion, mostly because I believe the supreme court was merely saying: Hey, we’re not going to disturb the lower court’s finding–they (the lower appellate court) was right and Judge Barbara Walther was wrong. The supreme court opinion money quote:
The Department petitioned this Court for review by mandamus. Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders “for the safety and welfare of the child”, including an order “restraining a party from removing the child beyond a geographical area identified by the court”. The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.
The numbers above correspond to the foot notes in the ruling, which you can read in the original. But, in essence, the court points out what the Texas Legislature specifically spelled out in its Family Code, and that is, that CPS may protect the FLDS children (at least those who, based on credible evidence need protecting) by doing any number of things other than herding and rounding them up like Texas Longhorns and sending them to the far reaches of Texas. They can restrain the parents from removing the children from the state; they can require alleged perpetrators to leave the Ranch. In fact, if Texas has evidence sufficient to warrant criminal prosecution for sexual assault, then law enforcement can even arrest the folks against whom they have such evidence.
Finally, sanity and the rule of Constitutional law return to the West Texas prairies.
In this case, the Department of Family and Protective Services presented evidence that “there was a danger to the physical health or safety” of pubescent girls on the Yearning for Zion (YFZ) Ranch from a pattern or practice of sexual abuse, that “the urgent need for protection required the immediate removal” of those girls, and that the Department made reasonable efforts, considering the obstacles to information-gathering that were presented, to prevent removal and return those children home. Tex. Fam. Code § 262.201(b)(1)–(3). As to this endangered population, I do not agree with the Court that the trial court abused its discretion in allowing the Department to retain temporary conservatorship until such time as a permanency plan designed to ensure each girl’s physical health and safety could be approved. See id. §§ 263.101–.102. On this record, however, I agree that there was no evidence of imminent “danger to the physical health or safety” of boys and pre-pubescent girls to justify their removal from the YFZ Ranch, and to this extent I join the Court’s opinion. Id. § 262.201(b)(1).
This is an interesting observation. Justice O’Neill would have upheld Texas’ actions had they limited the roundup only post-pubescent girls; however, where I think the Justice is wrong is her reliance on the FLDS belief system. Again, the First Amendment will protect beliefs, but not necessarily actions. And, the kind of action Justice O’Neill intimates is unlawful sexual contact with minor children. That conduct can and should be prohibited. And, Texas would be correct to do so, if and when there is evidence that it occurs. But, to sweep up all post-pubescent girls I think still runs afoul not only of the Texas Family Code, but also the First Amendment.
The dissent continued by arguing that Texas made a reasonable effort under the circumstances to keep the children together with their families; however, because the families and children would not cooperate with Texas authorities then Texas has no option but to confiscate over 400 children from their homes and families:
Thwarted by the resistant behavior of both children and parents on the Ranch, the Department had limited options. Without knowing the identities of family members or of particular alleged perpetrators, the Department could not have sought restraining orders under section 262.1015 as it did not know whom to restrain. See id. § 262.1015. Likewise, it could not have barred any family member from access to a child without filing a verified pleading or affidavit, which must identify clearly the parent and the child to be separated. See id. § 105.001(c)(3) (“Except on a verified pleading or an affidavit . . . an order may not be rendered . . . excluding a parent from possession of or access to a child.”). Furthermore, the trial court heard evidence that the mothers themselves believed that the practice of underage “marriage” and procreation was not harmful for young girls; the Department’s witnesses testified that although the Department “always wants kids to be with their parents,” they will only reunify children with their parents after “it’s determined that [their parents] know and can express what it was in the first place that caused harm to their children.” This is some evidence that the Department could not have reasonably sought to maintain custody with the mothers. Thus, evidence presented to the trial court demonstrated that the Department took reasonable efforts, consistent with extraordinarily difficult circumstances, to protect the children without taking them into custody. Id.
The problem with this argument, in my view is that it assumes Texas was justified in looking at the YFZ Ranch as a whole, one big family rather than the many, many families which in fact resided at the ranch. Texas should not have taken the Texas sized bite it did, not being prepared for the consequences.
Other media coverage beginning to trickle in:
SAN ANGELO, Texas – The Texas Supreme Court today turned down the state’s request to overturn a lower court’s ruling that hundreds of FLDS children were taken into custody improperly.
In doing so, the high court rejected the Texas Department of Families and Protective Services’ plea to overturn the Third Court of Appeals ruling that the children should be returned to their parents.
The opinion was met with delight by attorneys representing the FLDS families. Kevin Dietz of Texas RioGrande Legal Aid said he would work with the courts and state Child Protective Services to do what’s in the best interest of the children.
“Right now, that means reuniting these families,” he said.
In its brief opinion, the court decided by a six-to-three justice majority that “we are not inclined to disturb the Court of Appeals’ decision. On the record before us, removal of the children was not warranted.”
The state had argued the appellate decision left it unable to guard the children’s safety from what it had deemed imminent danger of sexual and physical abuse due to the Fundamentalist Church of Jesus Christ of Latter Day Saints’ practice of polygamy.
In early April, 51st District Judge Barbara Walther authorized the raid and subsequently ruled the children would remain in state custody. The state Supreme Court, however, found that Texas’ family code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care or shelters. For example, the lower court could have issued a restraining order barring the children from being taken out of state or ordering the removal of any perpetrators from their homes, the justices said.
The Deseret News has an excellent article on the opinion (read the whole article):
The Texas Supreme Court has ruled that the removal of FLDS children from the YFZ Ranch was unwarranted — and the decision to take them was an abuse of judicial discretion.
The decision today comes after Texas RioGrande Legal Aid filed a writ of mandamus in the Third Court of Appeals on behalf of 38 mothers.
In its ruling, the high court said that state law gave the lower court broad authority to protect children “short of separating them from their parents and placing them in foster care,” including removing alleged perpetrators from a child’s home and preventing the removal of a child from the jurisdiction of the investigating agency.
Those options were not embraced, the court said.
“This is decision in an important step in reuniting these families,” said Texas RioGrande Legal Aid attorney Kevin Dietz who is leading the group of attorneys working on the case. “It’s great to see that the court system is working in the interest of justice.”
The decision gives the mothers new hope that their families will be reunited relatively soon. Although the decision only applies to the 38 mothers named in the case, the decision will likely influence all the families, Dietz said.
Texas officials had no right to remove about 460 children from a polygamist sect, the state Supreme Court ruled Thursday.
The Texas Supreme Court agreed with a lower court’s ruling, that Child Protective Services did not present ample evidence that the children were being abused.
The high court ruling could possibly clear the way for the children to be returned to their families. They were removed in April from the Yearning for Zion (YFZ) Ranch, near Eldorado.
“We are not inclined to disturb the court of appeals’ decision,” the ruling said. “On the record before us, removal of the children was not warranted.”
The court’s 6-3 ruling came in the case of 38 mothers who had appealed the removal of their children, but attorneys in the case have said the reasoning behind the court rulings can be applied to the removals of all the children from the Yearning for Zion Ranch raid which began on April 3.
About 460 children were removed, although 20 were later found in court to be adults.
The Texas CPS folks have posted this statement on their website:
Today the Texas Supreme Court issued a decision on the YFZ child custody case. The decision can be found on the Texas Supreme Court web site.
We are disappointed, but we understand and respect the court’s decision and will take immediate steps to comply. Child Protective Services has one purpose in this case – to protect the children. Our goal is to reunite families whenever we can do so 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. We also will work with the district court to ensure the safety of the children and that all of our actions conform with the decision of the Texas Supreme Court.
Disappointed eh? That’s it? That’s the best they can do after disrupting the family life of over 400 children and wreaking the heartache and despair they have brought about because of their own incompetence? One purpose–to protect the children? Wow!
The New York Times has now posted this story on its website:
The Texas State Supreme Court on Thursday ruled that the removal of children from a polygamist religious group’s ranch by child welfare authorities was unwarranted and that the children should be returned.
The court’s ruling upheld a decision issued last week by the Third Court of Appeals in Austin finding that a state district court judge had not been justified in allowing the Texas Department of Family and Protective Services to remove hundreds children from a ranch complex near Eldorado in April.
In Thursday’s decision, the Supreme Court noted that while “the district court must vacate the current temporary custody orders as directed by the court of appeals,” the district court judge could impose conditions to protect the children including preventing their removal from beyond a geographical area.
Although the Supreme Court on Thursday instructed the district court to vacate its original order approving the children’s removal, it did not set a timetable under which they should be returned. Thursday’s decision involved 126 of the children, but a lawyer for representing one of the children seized from the ranch has said previously that the decision would effectively apply to all of the children taken into state custody.The Supreme Court said state child welfare officials must meet several legal standards concerning the safety of the children in order to justify removal — such as proving that state officials made a reasonable effort to enable the children to return home but that there was a substantial risk of continuing danger if the children were returned.
“Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision,” the Supreme Court ruled. “On the record before us, removal of the children was not warranted.”
Grits For Breakfast is beginning to post as well. Grits, a Texas Blogger focusing on the Texas criminal justice system has been following this story rather closely.
So, what does it all mean? I don’t know. I suppose in part it means, that the Founding Fathers, back in the day of this country’s infancy, were indeed inspired men, raised up by God to enshrine God given rights in our Constitution and Bill of Rights. In part it means that the rule of law is still paramount even today, even when a state is investigating an extremely unpopular religious movement. In part, I think it means that we should be grateful that the passions of the moment are subject to later review by cooler and calmer minds.
But, I suppose one of the more important meanings is that soon, hopefully very soon, mothers, fathers, and children will soon be reunited as families. That’s a pretty important meaning, in my view.