By David A. Fahrenthold
Washington Post Staff Writer
Friday, May 30, 2008
The Texas Supreme Court affirmed yesterday that state officials should not have seized scores of children from the ranch compound of a polygamist sect, agreeing with an appellate court that the group's beliefs were not, by themselves, proof of abuse.
The decision, issued yesterday afternoon in Austin, did not immediately bring the release of the more than 460 children of the Fundamentalist Church of Jesus Christ of Latter Day Saints compound near Eldorado, Tex. But it did seem to make that outcome very likely. Child-protection authorities said yesterday evening that they would comply if the trial court judge ordered the children returned.
"We are disappointed, but we understand and respect the court's decision and will take immediate steps to comply," a statement from the Texas Department of Family and Protective Services read in part. It added: "We will continue to prepare for the prompt and orderly reunification of these children with their families."
Because the case involves state law, not federal statutes, legal experts said the Texas Supreme Court was as high as an appeal could go. That court agreed with a decision last week by the state Court of Appeals for the Third District, which rejected arguments at the heart of the state's case.
"On the record before us, removal of the children was not warranted," the nine-judge Supreme Court ruled. The court found that the protective services department had removed all the children after an April 3 raid, disregarding less-drastic options. "The Family Code gives . . . broad authority to protect children short of separating them from their parents and placing them in foster care."
In Texas yesterday, legal experts said the next step in this case would be in San Angelo, where a trial court judge must now reconsider rulings that put the sect's children in the custody of the state.
Law professors said that if child-protection authorities wish to retain custody of some children -- such as teenage girls believed to be at the most risk of sexual abuse -- they must make their case child by child.
"Their failure to individualize the children, to look at the 4-year-old boy as being different than the 12-year-old girl, is the thing that both the Court of Appeals and the Supreme Court weren't able to abide," said Charles G. Childress, a clinical law professor at the University of Texas.
This case, one of the largest child-abuse investigations in the history of Texas or any other state, began April 3 with a huge law-enforcement raid on the sect's compound. Sect members, who consider themselves "fundamentalist Mormons" but are not affiliated with the mainstream Mormon church, believe that men may take multiple wives, including girls just past puberty.
The raid was triggered by a series of telephone calls to a domestic-violence shelter, in which a girl claimed to have been abused at the ranch. Authorities did not find her at the group's Yearning for Zion Ranch and later said the caller may have been a Colorado woman with a history of making false abuse claims.
But they did find evidence that several girls at the ranch were pregnant, or had been pregnant, while underage. The state received a judge's permission to keep all the children, arguing that the group's beliefs were too toxic to let them stay. The state's logic was that the beliefs made young girls future victims and young boys future abusers.
Two groups of mothers from the compound, 41 women with 139 children between them, filed petitions asking higher courts to intervene. They did: The two higher courts called for District Court Judge Barbara Walther in San Angelo to reconsider the cases and look for individual threats of physical or sexual abuse.
"The extraordinary step of removing . . . a parent from a child, and the even more extraordinary step of removing all 400 from their parents, really requires the showing that nothing else can be done," said David Schenck, a Dallas attorney for some of the mothers who filed petitions. "And the state didn't show that."
In Texas, legal experts say the court's ruling regarding the 139 children would be a precedent for releasing many of the others.
"They're probably not going to be going right home this afternoon," John Kennedy of Legal Aid of NorthWest Texas, said yesterday. His organization has helped some of the compound's mothers. "But I don't think the department is going to have any choice."
But at the University of Texas Law School, Professor John J. Sampson said a dissenting opinion released yesterday could provide justification for retaining custody of girls whom the sect considers old enough to marry. Three justices argued in that opinion that, while the state had no cause to seize boys and prepubescent girls, it could have been justified in seizing these girls, who seem in greatest danger of abuse.
"I don't think all the kids go back," Sampson said. "Post-pubescent girls -- seems to me the court will maintain temporary [custody orders] for them specifically."