'Mulligan' sought over FLDS evidence

SAN ANGELO, Texas — Child Protective Services wants a do-over.

After months of not providing required evidence of abuse and neglect to lawyers representing parents of the hundreds of children taken in the raid on the Fundamentalist LDS Church's YFZ Ranch, CPS acknowledged the case is so overwhelmingly big that full evidence discovery is nearly impossible.

"The biggest thing the department is asking for is, basically, a mulligan," CPS attorney Charles Childress said in a court hearing Thursday in San Angelo. "There was no intentional deceit, no intentional plan to deny evidence to parents or attorneys."

Tired of waiting to receive copies of any state evidence against their clients, lawyers representing 13 FLDS mothers took CPS to court to force the issue. They sought to set aside a judge's July order suspending discovery until a proper plan to provide it could be put in place, alleging that CPS had improper communication with the court in getting the discovery halted.

It is of their own making they have so many cases that they have, Texas 51st District Judge Barbara Walther said of CPS custody case. We have to balance the problem and come up with a realistic solution.

But 160 days later, do we really know why they have a case against Martha Emack, Julie Balovich, a lawyer for the Texas RioGrande Legal Aid Society, asked about one of her clients. They havent even interviewed her.

Walther pushed both sides to come to an agreement on discovery, even as the number of cases still pending in the nation's biggest custody case involving the Utah-based polygamous sect is winding down. Already, more than half of the children involved have been "nonsuited." On Thursday, more children were dropped.

The case involves hundreds of thousands of pieces of evidence and hundreds of lawyers and caseworkers from all over the Lone Star State that have clogged the court system in this rural Texas county.

Responding to a phone call alleging abuse, CPS caseworkers and law enforcement went to the YFZ Ranch in April to investigate. Once there, they claim to have seen other signs of abuse, prompting Walther to order removal of all the children.

The 440 children were ultimately returned to their parents after two Texas courts ruled the state acted improperly. A criminal probe into abuse has already led to six grand jury indictments, including two against FLDS leader Warren Jeffs.

CPS said its investigation is ongoing.

"If we are going to be filing amended petitions, we will be doing it in the next few weeks," Childress said, while revealing that currently there are no plans to seek to terminate any parental rights of FLDS parents.

After a brief huddle, both sides came up with a series of deadlines and deals. CPS will hand over evidence and TRLA attorneys will decide if they want to pursue depositions before going to trial.

TRLA then pushed for sanctions against CPS.

"This case has been on the docket for five months and we have a problem getting documents," TRLA lawyer Rebecca Flanigan said. "It's not simply enough the parties are going to play by the rules. If that were the case, we wouldn't be here."

While agreeing that all sides should follow court rules, Walther declined to issue sanctions. Outside of court, Flanigan hoped the agency would begin complying.

"That remains to be seen," she told the Deseret News. "If they don't, we'll all be back."

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E-mail: bwinslow@desnews.com