A judge on Monday ruled that more than 400 children, taken into state custody from a polygamous community in West Texas, must be given access to phones to contact their attorneys, but refused to rule on a motion to allow breastfeeding mothers to remain with their children.
Judge Barbara Walther called a motion for a temporary restraining order to prevent the mothers from being separated from their children "premature." Lawyers for several mothers had sought the order to keep the mothers and infant children together while the state goes through the difficult process of finding the biological parents of each child.
The mothers' motion also asked the court for privacy while the children prayed, claiming that staff interrupted their prayers with vacuum cleaning and other distractions. And they objected to having state employees monitor the prayers.
Walther ruled that they could pray twice a day and said she would try to find Mormon monitors to ensure that the mothers aren't coaching their kids or discussing the ongoing litigation. "How would I stop someone from practicing their faith?" Walther said.
The court motion came on a day when officials were to begin taking DNA samples from the children. The DNA tests are meant to help determine who the parents of the children are and whether any of the children are victims of sexual abuse. The results are expected back in about a week to 10 days.
Walther ordered the tests for the children and their parents on Friday after state child protection officials, and some lawyers, complained that the children often gave multiple names and may have lied about their ages.
Walther also ruled Friday, after two days of testimony in one of the largest child welfare cases in U.S. history, that the 437 Fundamentalist Church of Jesus Christ of Latter Day Saints children must remain in temporary state custody until they have individual status hearings.
The state Child Protective Services said it had determined that it has 437 children from the fundamentalist sect in custody — not 416, as the state has been saying, since it first took the children into custody more than two weeks ago. The agency said the discrepancy was because 21 women were reclassified as minors.
"The initial count was taken when we had five shelters operating and no way to get an accurate count," said CPS spokesman Daniel Azar. "We have devised ways of differentiating each child and now have a much more accurate count in what is a much more orderly setting."
The children are scheduled to be placed in temporary foster homes after the genetic testing is completed. Many of the mothers have been staying with the children in the San Angelo Coliseum, but after the DNA testing is done, only underage mothers will be allowed to remain with their children, the state has said.
Child welfare officials have said that the children would be at risk of physical or sexual abuse if they are returned to their parents at the Yearning for Zion Ranch. Walther also ordered parents to undergo maternity and paternity testing this week.
If the parents named in the court's order refuse to get the tests, they could be held in contempt of court. They would also lose a chance to prove that a child is theirs, and the child would probably have to remain in state custody.
Three male members of the sect said in an interview aired on CBS's "Early Show" Monday that they would cooperate in DNA testing if it would help them get the children back. Several of the women also testified during last week's hearing that they would do anything, including leaving the compound, to get their children back.
"Whatever we need to do to get them back in their peaceful homes," a man identified as "Rulan" said on CBS.
Rulan said sect members are reconsidering whether girls under 18 should have sex with adult men.
"Many of us perhaps were not even aware of such a law," he said. "And we do reconsider, yes. We teach our children to abide the law."
Several of the women who testified also said they would tell their children to wait until they were 18 to get married.
State prosecutors have argued that the FLDS church encourages underage marriages and births, subjecting children to sexual abuse or the imminent risk of abuse. A child protective services supervisor, Angie Voss, testified last week that children from the sect reported that no age was too young to get married and that they would get married whenever the church's "prophet" told them to.
Voss also testified that investigators were aware of 20 girls who had conceived or given birth while they were underage.
FLDS lawyer Rod Parker, who is acting as a spokesman for the families, said on "Good Morning America" this morning that those 20 examples spanned a 10-year period and not all took place in Texas.
The separation from their families is "a horrible trauma for these children to be forced to experience," Parker said. "There isn't anything in terms of the current circumstances out on the ranch that would justify this kind of attack on these families and traumatizing them."
In addition to helping officials sort out the sometimes complicated family tree of the polygamous sect, the DNA testing could eventually become evidence in a potential criminal case against members of the sect. No charges have been filed.
"Given what we have so far, I think it would be rank irresponsibility for the attorney general of Texas or any of the local prosecutors to fail to prosecute for rape," said Marci Hamilton, a professor at the Cardozo School of Law, and author of Justice Denied: What America Must Do To Protect Its Children.
Parker said he thought the parents would comply with the testing.
"I think if they've been ordered to do it, they probably will comply, unless some of their individual lawyers advise them not to," he said.
The testing, which is expected to last a few days, could be complicated because the sect is made up of only a handful of families who have intermarried for generations, "because the people are from a rather small gene pool, so there are very few differences for telling them apart," said Dr. Harry Ostrer, professor of genetics at NYU School of Medicine.
The state will begin placing the children into temporary foster homes after the testing. They will each have a status hearing before June 5.