"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," state attorneys argued, adding that it was important to establish relationships to determine potential risks of sexual abuse.

"This is a desperate argument on behalf of the state," countered attorney Amy Warr, who helped write the response to the DFPS appeal.

"The matching of children with parents did not become a problem for the department until a court decided that it had to give the children back," the response by Texas RioGrande Legal Aid states. DFPS knows the correct identities, the mother's attorneys argued, especially since the department allowed the mothers to visit their children, participated in status hearings and presented service plans that name the children and their parents.

The appeal by Texas authorities 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" who are pregnant or had conceived a child, including one girl who was 13 when she conceived.

"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."

Thursday's decision from the Court of Appeals "offers a poor analysis of misstated facts," and that court overstepped its authority in ordering that the children be returned, DFPS attorneys argued.

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.'"

In its response, Texas RioGrande Legal Aid attorneys said the appellate court decision to return the children does not mean Texas child welfare workers would no longer have oversight.

"The practical effect of this order is to allow the children to go home while the department continues its investigation. The department's suit regarding the children remains pending in trial court, which could issue any appropriate orders to protect the children's safety and ensure their continued presence in the state."

Attorneys for the FLDS mothers asked the Supreme Court to deny Texas' request to issue a stay of the appellate court order.

"Right now these children are experiencing the irreparable harm, pain and distress of enforced separation from their parents (and, in many cases, siblings)," the response states.

"By denying the stay and allowing the court of appeals order to take effect, this court would halt the only harm that everyone is certain is occurring. As the court of appeals correctly determined, there is no evidence of any equivalent harm — including abuse — that could justify the stay."

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Contributing: Amy Joi O'Donoghue
E-mail: bwinslow@desnews.com; bwest@desnews.com