Texas child welfare authorities today appealed a court ruling that the state had no right to seize more than 400 children taken from a polygamist sect, indicating the state won't give up custody of the children without a fight.
Even as the state attempted to overturn that decision, which threatens to unravel the largest child custody case in U.S. history, lawyers for some of the families said 12 sect children would be temporarily reunited with their families as early as tonight.
The lawyers for fathers Leland Keate, Rulon Keate and Joseph Jessop said Texas Child Protective Services agreed to allow the children to live with their parents pending a June 9 custody hearing.
A Child Protective Services spokeswoman said she did not know if the children would be returned and declined to comment further.
The decision to return the children comes a day after the 3rd Court of Appeals in Austin ruled in a separate case that the state Child Protective Services did not present enough evidence during an April hearing to show that the hundreds of children taken from the sect ranch were in immediate danger of abuse, which would have justified keeping them in state custody.
In its emergency appeal filed today, the state argued that the appeals court decision would force the return of 124 children to the ranch and would probably affect many of the other sect children in state custody.
Returning the children would subject them to continuing sexual abuse, because, protective services argued in its appeal, the sect forces underage girls to marry older men.
"This case is about adult men commanding sex from underage children; about adult women knowingly condoning and allowing sexual abuse of underage children," the state wrote.
The state also argued it could not identify the parents of the 124 children because it had not completed maternity and paternity testing, making any order to return the children difficult to carry out. From the outset, the state argued, its investigation was thwarted because the children and mothers refused to cooperate, giving investigators different names at different times.
From a legal standpoint, the state argued that the 3rd Court of Appeals in Austin applied the wrong standard of review when it held that there was not enough evidence of an immediate danger of abuse to continue holding the children in state custody.
The appeals court was supposed to determine whether Judge Barbara Walther's order keeping the kids in state custody was so arbitrary and unreasonable as to be a clear abuse of discretion. Instead, Texas argued, the appeals court seemed essentially to rehear the entire case.
The state raided the Fundamentalist Church of Jesus Christ of Latter Day Saints compound last month and took more than 450 children into state custody after Texas authorities received a call from someone who claimed to be a 16-year-old who was trapped in the sect's compound and said she was being physically and sexually abused.
During a massive hearing last month in which hundreds of lawyers were jammed into the courtroom and in a nearby overflow room connected by closed circuit TV, judge Walther ruled that all the children should be placed in temporary foster homes.
The 3rd Court of Appeals, in response to motions from 41 sect mothers, ruled that Walther abused her authority in keeping the children in state custody. It ordered her to release the children within 10 days.
The sect's children were removed from their sprawling 1,700-acre compound because state officials charged that underage girls were being married off to older men and the sect's boys were being raised to be sexual predators.
Thursday's decision was a huge defeat for Child Protective Services, which claimed it had evidence of widespread sexual abuse within the sect. Though the ruling was technically limited to the children of the 41 mothers who appealed, its logic appeared to apply to nearly all of the children in state custody.
The fate of the children, who remain in foster homes scattered across the state, was still unclear. The Court of Appeals ordered Walther to release them from state custody within 10 days.
Lawyers for the sect planned to ask Walther to sign an order releasing them today. But, it appeared unlikely she would sign the order until the Supreme Court decides whether to grant the state's appeal.
In the April court hearing, Child Protective Services said it had found at least five girls who became pregnant when they were under 17, and said that the FLDS culture encouraged young girls to marry older men.
On Thursday, however, the appeals court found that Child Protective Services offered no evidence that the children of the 41 mothers who appealed were in immediate danger.
None of those children had gotten pregnant, none of the underage pregnancies had occurred in their families and the mere "existence of the FLDS belief system" does not put kids in physical danger, the court said.
"Removing children from their homes and parents on an emergency basis … is an extreme measure," the court wrote. "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 … there is no evidence that the danger is 'immediate' or urgent.'"
The Department of Family and Protective Services issued a statement defending the raid, saying it removed the children "after finding a pervasive pattern of sexual abuse that puts every child at the ranch at risk."
"Child Protective Services has one duty — to protect children. When we see evidence that children have been sexually abused and remain at risk of further abuse, we will act," the department said.
The agency's decision to appeal comes as its actions were harshly criticized by several mental health workers who said in court papers they were appalled by conditions in the emergency shelters where the sect's women and children were held immediately after they were taken into custody.
The statements, filed with the court Thursday by sect attorneys and obtained by ABC News, compared the conditions inside the emergency shelters to prisoner of war camps, saying the children were malnourished and that Child Protective Services employees were openly hostile to the mothers.
"This whole incident gave me nightmares and I have nothing in her experience to compare this to, other than films that I have seen about families being separated by Nazi prison guards," said Phyllis Guderian, mental health director of the Hill County, Texas, Mental Health and Mental Retardation Center.