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Brian Connelly, Associated Press
FLDS member Willie Jessop, left, and Rod Parker, a Salt Lake City attorney acting as a spokesman for the FLDS, hail Thursday's court ruling. "It is time for the children to come home," Parker said.

SAN ANGELO, Texas — Plans are being made to return children seized in the raid on the Fundamentalist LDS Church's YFZ Ranch to their parents after a ruling by the Texas Supreme Court devastated the case by child welfare authorities against the polygamous sect.

The Texas Supreme Court ruled 6-3 that it was an abuse of judicial discretion to take hundreds of children in what has become the nation's largest-ever child custody case.

"On the record before us, removal of the children was not warranted," the justices said in a brief ruling handed down late Thursday.

FLDS faithful were happy — and hopeful.

"I'm happy as soon as all the children are back to their mothers and we're home," Martha Emack said outside the Texas Capitol in Austin shortly after the ruling came down.

Emack was visiting her two children, ages 2 and 1, in a children's shelter when she got word of the ruling.

Texas child welfare authorities were disappointed with the high court's decision.

"We are disappointed but we understand and respect the court's decision and will take immediate steps to comply," said Marleigh Meisner, a spokeswoman for the Texas Department of Family and Protective Services. "Child Protective Services has one purpose in this case — to protect the children. Our goal is to reunite families and make sure the children will be safe."

The ruling

In its ruling, the high court said that state law gave the lower court broad authority to protect children "short of separating them from their parents and placing them in foster care," including removing the alleged perpetrators from the home and preventing the removal of a child from the jurisdiction of the investigating agency.

Those options were not embraced, the court said, affirming a ruling by Austin's 3rd Court of Appeals. The Supreme Court said that although there are "important, fundamental issues concerning parental rights and the state's interest in protecting children, it is premature for us to address those issues."

While they agreed the trial court erred in removing boys and pre-pubescent girls from the ranch, the dissenting justices issued an opinion saying teenage girls remain in jeopardy at the YFZ Ranch because of a pattern of sex abuse.

The dissenting opinion cited several teenage girls on the ranch who were pregnant or had given birth, religious leaders who had "unilateral power to decide when and to whom they would be married" and that documents seized showed "several extremely young mothers or pregnant wives" on the ranch.

"This evidence supports the trial court's finding that there was a danger to the physical health or safety of pubescent girls on the ranch," the dissenting opinion stated.

In addition, the dissenting justices wrote that child welfare investigators were hampered in getting birth dates and identifying information, and officials discovered a shredder that had been used to destroy documents just before CPS officials arrived.

"Thwarted by the resistant behavior of both children and parents on the ranch, the department had limited options," Justice Harriett O'Neill wrote.

Just hours before the ruling, the American Civil Liberties Union filed a friend-of-the-court brief siding with the FLDS mothers, expressing concern that Texas was targeting a religious culture. A Dallas child-abuse lawyer filed her own brief supporting Texas.

Investigation

The decision does not mean that the CPS investigation goes away, but it gets the children out of foster-care facilities as soon as it can be coordinated.

FLDS member Willie Jessop said church members are willing to cooperate — within reason — with any child welfare investigation. Contrary to claims by CPS, Jessop said they tried to cooperate early on, to no avail.

It was a phone call by someone claiming to be a 16-year-old girl named "Sarah" that sparked the April 3 raid. She claimed to be pregnant and in an abusive relationship to an older man. That led Texas CPS workers to respond to the FLDS compound with law enforcement. What they saw at the ranch prompted Judge Barbara Walther to order all of the children to be placed in state protective custody. It was a hearing en masse that led to the children being scattered in foster-care facilities all over the Lone Star State.

Lawyers for dozens of FLDS mothers challenged the court's decision. The 3rd Court of Appeals sided with the mothers, saying that the state failed to show the children were in immediate danger and ordered them to be returned to their mothers immediately. Texas child welfare officials appealed, saying the children were in danger of abuse in a culture that groomed little girls to become child brides and boys would grow up to become sexual perpetrators.

The appellate court said Texas child welfare authorities had only identified five pregnant teenage girls as victims of sexual abuse but had no evidence of anyone else. Texas had claimed there were as many as 31 girls but later reclassified many of them in court hearings as adults.

"There have been many many allegations and insinuations. The FLDS people I am acquainted with do not allow their children to be married without at least a legal age. We do not understand where this is coming from," Jessop told reporters outside the courthouse here.

Rod Parker, a Salt Lake City attorney acting as a spokesman for the FLDS, called on Texas authorities to "lay down arms."

"End this nightmare and end this torture that they're putting these families through," he said Thursday. "These children have suffered enough at the hands of the state of Texas. It is time for the children to come home."

Reunion

Any reunion depends on an order signed by either Judge Walther or the 3rd Court of Appeals. Walther could sign an order — with conditions — as early as today, clearing the way for parents to retrieve their children from foster-care facilities.

Texas CPS officials urged the Supreme Court to keep the children in foster care, saying they feared that FLDS families would flee the state. The high court said restrictions could be placed on the families, including preventing them from leaving the state and removing alleged perpetrators from a home.

The mothers are not opposed to any restrictions, as long as they are treated like individuals and not a group, said Doug Alexander, a lawyer for some of the FLDS women.

"One of the clear messages from the court is that CPS has got to stop treating these people as a crowd," he said. "The clear message from the court is it's time for these kids to go home now."

Texas authorities were already preparing for reunification.

"We will continue to prepare for the prompt and orderly reunification of these children with their families. We will also work with the district court to ensure the safety of the children and that all of our actions conform with the decision of the Texas Supreme Court," Meisner said.

D'Ann Johnson, a lawyer for Texas RioGrande Legal Aid, which represents 38 FLDS mothers in the case, said the families are anxious to see their children.

"One of the fathers I talked to just started sobbing and saying how grateful he was," she said of the ruling. "They want to know when they can get their children."

Asked what a reasonable time frame would be to return children to mothers, Johnson said, "Yesterday."

Other families were trying to figure out what the ruling means for them. The case before the court technically only affects about 139 children of 41 FLDS mothers, but it can be applied to all of the children. Attorneys for other parents may also file their own papers with the court to have their children returned.

A lawyer for Joseph and Lori Jessop, who have three children in state custody, was trying to figure out if they could go back to the YFZ Ranch. The Jessops struck a deal with CPS that allowed their children to be returned to them, as long as they remained in the San Antonio area.

"We are all very very happy with the ruling. It vindicates what we have said from the beginning. The children should never have been taken from their home and families and kept from their families for such a long time," said the Jessops' lawyer, Rene Haas.

Haas said the Jessops have every intention of "continuing to live in peace in Texas, which was their hope when they moved here three years ago."

Aftermath

The families are emerging from a nightmare, Jessop said.

"I know that there is hope and it will be a great, great day when there are fathers and mothers hugging little children that were ripped away from them," he said.

Texas Gov. Rick Perry was reviewing the ruling and had no comment, a spokeswoman told the Deseret News.

The ruling could open the door for a civil action against Texas over the decisions made to remove the children.

Asked if a civil lawsuit was being actively pursued, Parker told the Deseret News, "I can't say."

Parker sent letters last month to the Texas Department of Family and Protective Services and Schleicher County authorities, warning them to preserve all communications and other evidence for use in a possible civil lawsuit.

The results of DNA testing to determine family relationships are also expected back today or next week, the Texas Attorney General's Office said. A criminal investigation remains under way, with Tom Green County prosecutors saying they are considering a number of options — including a bigamy prosecution. Jessop called it a "war on religion."

The raid on the YFZ Ranch will be forever ingrained in the history of the FLDS people, who endured a raid on their enclaves in Hildale, Utah, and Colorado City, Ariz., in 1953.

"In the Short Creek raid, the officials had enough of a heart that they at least let little children be with their mother," Jessop said. "The emotional damage of this far exceeds the damage done in the '53 raid. Only God can mend a broken heart."


Contributing: Angela Curtis, Amy Joi O'Donoghue, Linda Thomson, Lisa Riley-Roche

E-mail: bwinslow@desnews.com