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 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 ... "
The court said CPS did not make reasonable efforts to consider options other than removing the children.
The FLDS have denied any abuse, but Rod Parker, an attorney who is acting as their spokesman, acknowledged there may be a few instances of girls pregnant under the age of 18.
The YFZ Ranch
Many members of the FLDS Church found out about the ruling as they were headed to court in San Angelo for the marathon custody cases involving their children. Balovich and her co-counsel, Amanda Chisholm, drove to the FLDS property to deliver the good news to their clients.
"That's encouraging," said a woman named Annette, who learned of the decision from a Deseret News reporter at the gates of the YFZ Ranch. "I'm waiting to see if it's really going to happen."
Outside the courthouse in San Angelo, FLDS women hugged and cried with joy upon hearing the news.
"Praise the Lord," said Ilene Jeffs.
"We're grateful for that," said Sarah Barlow, a mother of two whose children are in state custody.
"Anything positive," Jeffs added as she walked up the courthouse steps for a hearing involving three of her children.
Willie Jessop said their faith has carried them through this trial.
"The people had an opportunity to put things in the Lord's hands and when he grants your prayers, you acknowledge him first," he told the Deseret News. "The people turned to their faith and acknowledged him when the children were first taken and we acknowledge him now."
On Wednesday, Texas child welfare workers and a pair of law enforcement officers attempted to return to the YFZ Ranch to search for more children believed to be there. They were denied access without a warrant and FLDS leaders accused them of plotting a second raid. Texas CPS officials did not say if they planned to return to the property.
"There is justice in America," said another FLDS woman outside the courthouse Thursday.
She was standing with William Crouse, a parenting instructor from the House of Yahweh, which is another polygamous sect in Texas that has come under scrutiny by state officials. Criminal charges have been filed against members of that group alleging it is a "sex cult."
"People are finally starting to see through it," Crouse said. "They're attacking these people for what they believe in. It's nothing but malarkey."
The Texas Department of Family and Protective Services issued a statement on Thursday defending the raid.
"When we see evidence that children have been sexually abused and remain at risk of further abuse, we will act," it said.
The agency reiterated it found "a pervasive pattern of sexual abuse" at the ranch that puts every child there at risk and referred to a "pattern of organized deception" from FLDS members during their investigations. The statement also spoke of the "Bishop's Record" it seized that refers to nine girls who were 16- and 17-years-old and living at the ranch who were listed as wives in the document.
"While our only duty is to the children, we respect that the court's responsibility and view is much broader. We will work with the Office of the Attorney General to determine the state's next steps in this case," the statement said.
The raid was sparked by a phone call from someone claiming to be a 16-year-old girl who was pregnant and in an abusive marriage to a 49-year-old man. Texas authorities are investigating whether the call was a hoax.
The appeals court's ruling will not affect an ongoing criminal probe into activities at the ranch involving the FLDS Church or its members.
"I expect those investigations to go on independently," Parker said.
Texas Gov. Rick Perry is reviewing the court order.
"We are being briefed by DFPS, who is determining the next step," governor's spokeswoman Krista Piferrer said, making it clear the governor was not named in the legal action.
Thursday's ruling calls into question an agency's action that has already cost the state millions of dollars. Texas lawmakers met this week in a finance committee to hear the grim news about the fiscal impact of the raid that is now under a higher court's scrutiny and some public criticism.
"They didn't have enough evidence to remove the children," said attorney Gonzalo Rios. A criminal defense attorney for 16 years, Rios was approached by residents of the YFZ Ranch to represent some of the mothers. He said he didn't necessarily agree with the FLDS lifestyle, but got on board because of some of the constitutional issues that concerned him.
"Today it is this group. Tomorrow, it could be anybody. We're doing this to preserve our rights as an American people," he said.
James and Nancy Dockstader, who appeared in court for a hearing for five of their children, remained hopeful about the future.
"It's definitely moving in the right direction," he said.
"We are so grateful someone will actually listen to the facts and look at us as individual families," Nancy Dockstader added.
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