SAN ANGELO, Texas The devil is in the details.
The judge who ordered hundreds of children removed from the Fundamentalist LDS Church's YFZ Ranch abruptly walked off the bench late Friday, throwing the nation's largest-ever custody case into chaos again.
Judge Barbara Walther refused to sign an order to return the children when lawyers for a group of FLDS mothers challenged the changes she had made to a negotiated deal to return some of the children home as early as today.
The move left members of the FLDS Church frustrated.
"There's no relief. There's no way of knowing when relief will be here. There's no way to get cooperation out of the legal system to fix what they did on April 3," FLDS member Willie Jessop said outside the courthouse.
Lawyers for some of the families are expected to go to Austin's 3rd Court of Appeals on Monday. The court had said that if Walther would not sign an order to return the children, it would do it for her.
"It essentially incarcerates our children and the mothers of our children for at least another 48 hours and probably longer than that, given the circumstances," said Laura Shockley, an attorney representing children and a group of young women in a dispute with Texas over their ages.
Both Austin's 3rd Court of Appeals and the Texas Supreme Court ordered the children to be returned, ruling that child welfare authorities did not have proof that there was an immediate danger to justify removing more than 400 children from the FLDS property last month. The courts also ruled that Walther's court overstepped its authority in placing all of the children in foster care facilities scattered across the Lone Star State.The Texas Supreme Court did allow Walther to place restrictions on the families while Child Protective Services continues an abuse investigation.
Details of the deal
A deal had already been tentatively reached between Texas child welfare authorities and lawyers for the FLDS families when the hearing began Friday afternoon.
The deal would have required that FLDS parents take parenting classes, cooperate in ongoing investigations, allow CPS caseworkers to make unannounced home visits from 8 a.m. to 8 p.m., and notify welfare workers who lives in the ranch homes. The tentative agreement included an injunction prohibiting the families from leaving Texas before Aug. 31.
But Walther had concerns about the injunction. She also sought to get more specific about requirements for the parents.
"The court believes it's important to specifically set out what the department can and can't do in its investigation," the judge said.
After a recess, she came back with her own proposed order. It required specific addresses for everyone in a household, unlimited access to the YFZ Ranch for caseworkers, the ability to remove children for interviews and order psychological and medical tests and blocked anyone in the custody case from leaving Texas while the investigation is ongoing.
Her proposed order said that anyone from the ranch, seeking to travel within Texas, must give 48 hours notice to CPS before traveling more than 60 miles.
Nancy DeLong, an attorney for several mothers, had numerous objections.
"This is a global order for everyone," she said. "The language is overbroad. We need individual hearings before any changes are made. There is no basis for any of these orders. It is not necessary. The court of appeals found there is no evidence to take these children."
So many attorneys objected at one point, they drowned each other out.
"I'll make some modifications," Walther said, taking another recess.
A proposed final order was circulated throughout the courtroom, but lawyers for the FLDS mothers still had objections, saying there were concerns specific to their individual clients.
"I understand y'all did not agree to this, but this is what I am going to sign and y'all can seek appropriate remedies," Walther said.
Lawyers again objected, saying that the language was not part of the deal they had made with the Texas Department of Family and Protective Services.
"The court does not have the power, with all due respect, to enter any other order (other than vacating the original order)," Julie Balovich of the Texas RioGrande Legal Aid Society argued over the telephone.
She said there was no evidence justifying the additional restrictions the judge was proposing.
Walther said that if they wanted the original order signed, they would have to get signatures from all of the mothers and the attorneys involved before she'd sign it. That is something the families' lawyers said would be impractical to do over the weekend.
Walther said she believed the Supreme Court's decision gave her the authority to impose whatever conditions she felt were necessary.
"The Supreme Court does say this court can place restrictions on the parents. I do not read that to say this court is required to have another hearing to do that," she said. "You may interpret it however you choose."
With that, the judge walked off the bench, saying she would await any submitted orders. Lawyers in the courtroom and over the phone were stunned.
"What did she say?" one attorney asked.
"Do we have another hearing?""What did she order?"
Kids' welfare first
Lawyers for the Texas Department of Family and Protective Services left the courthouse without saying much.
"I'm going to do what the court directed," agency attorney Gary Banks said.
In a statement, the department only said that "DFPS worked with the attorneys for the children and parents' attorneys on a plan for reunifications that was presented to the court.
"Judge Walther asked that we continue to finalize this plan together to ensure the prompt and orderly return of the children."
The Texas RioGrande Legal Aid Society, which represents mothers who successfully challenged the original decision, did not say if they will go to the appellate courts to get the order signed.
"We are determined to do what is in the best interest of these families and that means working to reunite children with their parents as quickly as possible," spokeswoman Cynthia Martinez said in an e-mail to the Deseret News. "We are going to continue to work with the courts and CPS to get that done."
Andrea Sloan, a lawyer representing a group of young women considered by the state to be minors, said it came down to a competing balance of how invasive Texas CPS caseworkers can be when the children go home and the FLDS right to freedom in their lives.
"At the end of the day these children need to be home with their parents," Sloan said. "Two courts above this court have said that."
Asked if she had confidence in Walther, Sloan replied that she had confidence in the Texas court system."One way or another these children will be returned to their homes," she said.