By David A. Fahrenthold
Washington Post Staff Writer
Friday, May 23, 2008
A Texas appeals court yesterday ruled that state child-protection officials lacked the evidence to seize children from the compound of a polygamist sect last month, rejecting arguments that the group's belief system is itself a dangerous form of abuse.
The court's decision, issued in Austin in response to petitions from 41 mothers, did not immediately return the 464 children seized at the Yearning for Zion Ranch to their parents. But experts said the state's justification for the raid at the West Texas compound run by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) may have been fatally undermined.
"Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse," the three-judge panel wrote, ". . . there is no evidence that this danger is 'immediate' or 'urgent' . . . with respect to every child in the community."
If Texas officials cannot produce new evidence of abuse or win an appeal to the state Supreme Court, experts and lawyers involved in the case predicted, many of the children eventually could be returned to their parents. The appellate judges directed a lower court to vacate orders that had granted the mothers' children to the custody of the state.
James Paulsen, a professor at South Texas College of Law in Houston, said the court seemed to have demolished a main pillar of the state's argument for seizing all the sect's children, instead of only those for whom there was proof of physical abuse.
"The notion that you can take an 18-month-old child . . . and say that a child that isn't old enough to talk is somehow being influenced by a toxic environment is nonsense," Paulsen said.
David Schenck, a Dallas attorney for some of the mothers, said the state will now have to present evidence that individual children were physically harmed or in danger of harm, instead of seeking to portray the entire sect and its compound as unfit for children.
"It could be that you have wrongdoers somewhere in there. But the thing you have to do is identify them," he said. "You can't just throw a net over 1,000 people."
The Texas Department of Family and Protective Services, which has custody of the children, issued a statement yesterday defending its actions and contending that investigators had found "a pervasive pattern of sexual abuse that puts every child at the ranch at risk."
A spokesman for the department, Patrick Crimmins, said the idea of appealing the decision "is being considered right now. No decision has been made."
In a sign of the murkiness that surrounds the case, Crimmins said child-protection workers are unsure how many of the children belong to the mothers who filed petitions. State authorities have described "a pattern of organized deception" among sect members in which children and adults gave false information or no information about their age or family relationships.
The case began April 3, when Texas authorities raided the 1,700-acre ranch set in scrubland near the town of Eldorado. The raid was triggered by a series of phone calls, made to a domestic violence shelter in nearby San Angelo, by a young woman who said she had been forced into marriage and teenage pregnancy at the ranch.
Later, though, authorities said the calls may have come from a woman in Colorado who had no connection to the ranch and had a history of making similar false claims.
Child-protection officials said after the raid that it did not matter whether the calls were a hoax. They said they found damning evidence of sexual abuse, including underage mothers, on the ranch.
In addition, they said the compound is dangerous simply because of the group's beliefs. The group, part of a decades-old sect whose members consider themselves fundamentalist Mormons though they are not affiliated with the mainstream Mormon church, believes that girls can marry and bear children after puberty. The state argued that these beliefs are so corrosive, for both girls and boys, that children should not be left behind to learn them.
In yesterday's ruling, however, the Third Court of Appeals rejected those arguments.
"There is no evidence that [the mothers] have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse," the judges wrote. "There is simply no evidence specific to [the mothers'] children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a 'pervasive belief system' that condones underage marriage and underage pregnancy."
Yesterday's ruling is not final. The Texas Supreme Court could delay its enforcement or overturn it. But at the very least, said Charles Childress, a clinical law professor at the University of Texas's Children's Rights Clinic, it could require the state to separate the ranch's children into individual abuse cases, with individual burdens of proof.
Attorneys for other children said they believe the ruling creates a precedent that will help win their clients' release. Mary Noel Golder, a San Angelo lawyer who is a legal guardian for 10 children, said she spoke to one of them by phone yesterday.
"Of course, they're very happy," she said. They "want to go home."
But Flora Jessop, executive director of the Phoenix-based Child Protection Project, which helps children who have left polygamist groups, said it would be a bad idea to return the children to the sect, no matter what legal logic dictates.
"If they go back into this, the kids are going to be left in a situation [in which] they have no rights, they have no voice, they have no choice," she said.