SAN ANGELO, Texas Texas child welfare authorities have filed an appeal with the Texas Supreme Court challenging yesterday's appeals court decision that ordered the return of children seized from the Fundamentalist LDS Church's YFZ Ranch.
Attorneys representing 38 FLDS mothers told the Deseret News they are already drafting a response.
Rod Parker, a Salt Lake attorney representing the FLDS Church, said any appeal by the Texas Department of Family and Protective Services would be an uphill battle.
"They ought to take a step back and think about what they're doing here and if it's really best for the children in the face of what's happened to them so far and their inability to produce any evidence," he said.
"This is an agency that's out of control."
In the first paragraph of its appeal, attorneys for DFPS wrote: "This case is about adult men commanding sex from underage children; about adult women knowingly condoning and allowing sexual abuse of underage children; about the need for the department to take action under difficult, time-sensitive and unprecedented circumstances to protect children on an emergency basis ... "
It also questions the appeals court's order to return the children "without giving the court the opportunity to determine which parents are entitled to possession of which children."
The department has complained that children switched names and both children and mothers have refused to answer questions about identities of family relationships, making it difficult to determine which child belongs to which parents.
The Texas department asks the Supreme Court to stay the appeals court order and keep the children where they are in foster facilities until the high court considers their arguments. It argues the more than 450 children will "suffer irreparable harm" if the appellate court order is followed and says the children "will be at risk of sexual and emotional abuse" if returned to their parents.
The appeal repeats allegations of a "pattern of girls reporting that there was no age too young" to be married and boys at the ranch are groomed to be "perpetrators."
DFPS identified five underage girls from "Bishop's Records" that are pregnant or had conceived a child, including one girl who was 13 when she conceived a child.
"By necessity, the record establishes that not only children as young as age 13 were pregnant but also that men must have engaged in the sexual abuse of children at least nine months before, if not at an even earlier age," the court document states.
The department justifies the removal of babies from the ranch, citing a Child Protective Services supervisor's statement that "the little boys, the babies, the girls, what I have found is that they are living under an umbrella of belief that having children at a young age is a blessing and therefore any child in that environment would not be safe."
In a separate filing asking for emergency relief, CPS said if the appellate decision were allowed to stand "the department will be compelled to return approximately 124 children from YFZ Ranch to approximately 34 alleged mothers."
The department went on to say it was important to establish family relationships in order to determine potential risks of sexual abuse. Allowing the children to return to the ranch would impede that investigation. "In addition, the children have a constitutional best interest right to know with absolute certainty who their parents are. Due to the orchestrated conspiracy of silence, neither the department nor the trial court was able to match alleged parents with the children."
The ruling the agency argued would force the return of these children to an environment in which adversarial hearings clearly established that there is a practice of forcing under-aged girls into marriages with older men. Such practice, the agency argued, is "an institutional practice, a practice that was supported by the alleged mothers. This would subject the children to continuing sexual and emotional abuse."
The state agency also argued that the Court of Appeals ignored long-standing precedents from previous court rulings. In order to show that the trial court abused its discretion, the appeals court judges would have to have found that Judge Barbara Walther's decision to place the children in state custody was "so arbitrary and unreasonable" that she committed a prejudicial error of law.
Thursday's decision from the Texas 3rd Court of Appeals "offers a poor analysis of misstated facts," and overstepped its authority in ordering that the children be returned, DFPS attorneys said.
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The department said it would not be safe for any child to return to the ranch "because the adults on the ranch expressed that they 'aren't doing anything harmful to their children.'"
Meanwhile, CPS lawyers were back in court in San Angelo this afternoon for a hearing involving Louisa Jessop, who gave birth two weeks ago to a son while in state protective custody. Judge Barbara Walther must determine what will happen to the child. That decision has been made more complicated by Thursday's appeals court decision.