FLDS win big victory

Impact: Hearings halt as state regroups

Published: Friday, May 23 2008 12:00 a.m. MDT

ELDORADO, Texas — As Julie Balovich stepped out of her car here at the gates of the YFZ Ranch, a woman from the Fundamentalist LDS Church ran up and hugged her, crying softly.

It was huge court victory Thursday for the mothers of more than 450 children taken in the raid at the FLDS Church's sprawling ranch. Austin's 3rd Court of Appeals ruled that Texas child welfare authorities acted improperly in removing the children and suggested that the FLDS belief system alone does not constitute abuse to children.

"This is huge," said Balovich, a lawyer for a group of FLDS mothers, smiling widely. "It's exciting. This is a great day for families!"

The ruling does not mean that the children will be immediately returned to their parents. Technically, it only applies to 38 mothers who were plaintiffs in the appeal. However, it could be interpreted more broadly and open the door for other legal challenges on similar grounds.

The decision by the appeals court halted the massive status hearings that were to continue today in a San Angelo courthouse, where five judges were simultaneously holding hearings to wade through the huge custody case.

The Texas Department of Family and Protective Services was deliberating how it would respond.

"We are assessing the impact it may have on our case. Any decision regarding an appeal will be made at a later date," said agency spokeswoman Marleigh Meisner.

The ruling

The ruling means Judge Barbara Walther has 10 days to follow the judicial order and return the children to their parents — perhaps with certain conditions or restrictions — or the appeals court will do it for her. Texas Child Protective Services could also appeal the decision.

It was Walther who ordered all of the children removed from the YFZ Ranch after an April 3 raid by law enforcement and Texas Child Protective Services workers.

The Texas Rio Grande Legal Aid Society, currently representing 48 FLDS mothers, challenged the judge's decision. Walther also ordered the children to remain in state custody after a massive hearing last month.

"The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required" for the state to maintain custody of the children, the 3rd Court of Appeals said in its ruling. "Consequently, the district court abused its discretion in failing to return" the children.

The court said that removing children from homes should only occur "when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary."

Texas CPS officials argued that there were five girls at the ranch who became pregnant at 15 or 16 years old and said all children were in danger because of the FLDS belief system condoning underage marriage and pregnancy. CPS also considered the entire YFZ Ranch as a single household and argued children shouldn't be returned there because sexual abuse had occurred in that household.

The appeals court said CPS failed to present evidence of physical danger to children who hadn't reached puberty, nor evidence that pubescent female children were in physical danger other than the "pervasive system of belief" condoning polygamy and underage females having children.

"The existence of the FLDS belief system ... by itself, does not put children of FLDS parents in physical danger," the court said. "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 ... "

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