May 19, 2008— -- The Texas judge in a child custody case criticized a lawyer's proposal that her polygamist-sect client shouldn't be required to comply with the state's plan to reunify the woman with her children if it conflicted with her religious beliefs.
The suggestion could be a stumbling block, since the state child protective services has made it clear that the mothers would have to choose between their children and the alleged practice of marrying underage children to older men.
Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which practices polygamy, have denied that any of the children were abused and have said they are being persecuted for their religious beliefs.
The state has said its ultimate goal is to reunify the 463 children taken into state custody with their parents, so long as the parents can show they can provide homes free of abuse. The parents are also being asked to take parenting classes and attend psychological counseling.
The mothers showed at several simultaneous hearings Monday how devoted they were to their kids. Social workers noted the mothers had been traveling across the state to see their children, many of whom have been scattered in various foster homes up to 15 hours from the sect's ranch in Eldorado.
One of the wives of the sect's jailed leader said she was eager to comply with any psychological testing so she could be reunited with her son, a boy born with a birth defect who has been given a new prosthetic leg while in foster care.
But the women also have shown their devotion to their religion.
Judge Thomas Gossett said he had a problem with the idea posed by an attorney for Nora Jeffs that Jeffs would comply with the suggestions of counselors and psychologists so long as they don't conflict with her religious beliefs.
"We all know why we are here today," he said, but he added to Jeffs that it's "up to you what your religious beliefs are."
The hearings, the latest step in what is believed to be the largest child protection case in U.S. history, are the first attempt to sort out what should be done for each individual child, rather than treating them en masse.
Texas Child Protective Services, which claims that the FDLS church forces underage girls to marry older men, must explain at the hearings what sect parents must do to regain custody of their children.
State authorities said the parents must prove they can provide a home free from potential child abusers and demonstrate the ability to protect children from abuse.
Judges and caseworkers on Monday acknowledged that the plans were general and said they would add specifics for each child. Lawyers also urged the judges to place siblings together while in temporary foster care.
Authorities have not identified the mothers of more than 100 children. The ages of 27 of the girls in state custody are in dispute and the church says they are over 18.
The massive child protection case highlights the potential conflict between religious beliefs of the sect and Texas law.
"You can't be in bigamist marriages, and the other thing you can't do is marry off young teenagers to very old men," said Scott McCown, a former Texas district court judge.
"If they are not willing to give that up, the state's position is going to be that the children are never going to go home. That's going to be state's non-negotiable bottom line," McCown said.
But this is not the first time the sect's practices have been challenged by state authorities, and it was unclear what the long-term impact will be on the polygamous group, which has been raided by authorities in several states four times in the last 75 years.
Though Arizona arrested dozens of men and took hundreds of children into custody in 1953, that raid appeared to have little effect on the group's beliefs or practices, leading some to question whether the results will be any different in Texas.
"I think it will be a repeat of history," said Martha Bradley, a University of Utah professor and author of "Kidnapped From That Land," a study of the now-infamous 1953 raid on the town known then as Short Creek.
Within two years of the raid, all sect members were back in Short Creek.
"Every one of them came back home," said Benjamin Bistline, a former sect member who was 18 at the time.
Texas officials took all of the sect's children into custody last month, claiming the group encourages marriages between underage girls and older men, placing the children at risk of abuse, which sect members deny.
The state believes as many as 31 girls in state custody are under age and either pregnant or are already mothers, a number that has been disputed by the church. The state also claims it has evidence of broken bones and sexual abuse among the boys.
Texas Child Protective Services has said that its ultimate goal is family reunification by April, though if a judge finds the FLDS parents cannot create a safe environment, they may permanently lose custody of their children.
Some lawyers for the children and the sect already have criticized the state's reunification plan, claiming it could require mothers to disavow their religious beliefs and could be read to mean that the mothers would not be allowed to return to their homes on the Yearning for Zion Ranch.
"Every indication from CPS [child protective services] that we have from their actions suggests that would be the case," said Rod Parker, a longtime FLDS lawyer who is acting as a family spokesman.
Patrick Crimmons, a CPS spokesman, called that "rank speculation."
The plan, obtained by ABC News, "doesn't say anything about religious beliefs. It doesn't say anything about polygamy," he said. "All it says is that if they want the kids returned to them, they are going to have to be protected."
The church has cast the case as the latest attack on its religious rights — the continuation of a conflict that has gone on for more than 70 years between the fundamentalist sect and the government.
Last month's raid in Texas is the fourth carried out against the sect by police in different states. The group's largest community, known as Short Creek, straddling the Arizona and Utah borders, was raided in 1935, 1944 and 1953.
The 1953 raid was the most determined by prosecutors. Authorities swept into Short Creek, arrested 36 men and took 86 women and 263 children into state custody and sent them to small towns throughout the state.
But the raid backfired. Public opinion turned against the government after images of crying children being torn from their parents were splashed on the front pages of newspapers across the country. The raid has been widely credited with ending Gov. Henry Pyle's political career.
The two raids have followed much the same process. Officials searched for birth certificates, census records and other documents to sort out the complicated family trees within the isolated communities.
Prominent leaders of the Mormon church publicly encouraged the prosecutions in 1953. These days, Senate Majority Leader Harry Reid, a Mormon from Nevada, has urged the federal government to get involved in prosecuting the FLDS polygamists.
But there were important differences, says former sect member Bistline, who wrote "The Polygamists," a history of the FLDS community in Short Creek, later renamed Colorado City, Ariz. The sect today, he said, is more extreme than it was in the 1950s.
"We weren't ordered to marry, we had dances, we had freedom to do what we wanted to do," he said. "It was just a normal situation."
"The people taken from Short Creek weren't criminals, they were just normal people," Bistline said.
The criminal case lasted just six months, ending when prosecutors offered the men a deal: They would drop all charges against the women if the men pleaded guilty to conspiracy — a misdemeanor. The men accepted the deal and were sentenced to one-year probation.
The women were told to disavow polygamy and stop teaching it at their schools, according to Bradley's book. Though the women refused, the sect's children were sent home after two years in legal limbo.
"The lesson was, God won the battle for them," said Rena Mackert, a former FLDS member who was born a few months after the Short Creek raid. "The men all came home. The women came home. The children came home. And life was back to the status quo."
According to Bistline, changes started "immediately after folks came back in 1955." By the 1960s, he said, church leaders were telling girls whom they could marry. "And it just kept getting worse," he said.
Church leaders like Warren Jeffs, now in a Utah prison for being an accomplice to rape, took dozens of wives for themselves, Bistline said.
He said he thought the raid in Texas was justified, though he believed the children should be returned to their mothers.
In order for that to happen, CPS has drafted 10 goals and 14 tasks that parents will have to work toward to regain custody of their children, according to family service plans obtained by ABC News.
The service plan goals say the parents must show that they understand what is meant by abuse. A CPS supervisor testified at a hearing last month that sect girls believed no age was too young to get married.
The plan asks parents to cooperate with DNA testing and to help authorities establish paternity and family relationships. Tasks include participating in parenting classes, psychiatric evaluations and following the recommendations of counselors.
McCown called the service plans typical for child custody cases. "The parent has to have a stable place to live and a stable job and a real willingness not to repeat past patterns," he said.
But lawyers for the parents complain that the state is using the same plan for all children, regardless of circumstances.
"Each and every client has received that exact same document," said Cynthia Martinez of Texas Rio Grande Legal Aid, which represents about 50 sect mothers.
Some mothers are in monogamous relationships and live in single-family households, unlike many members of the sect, who live in group family homes, she said.
Authorities raided the sect compound after receiving calls from a 16-year-old girl who claimed to be trapped on the ranch. Authorities are now investigating whether those calls were a hoax.
ABC News' Jim Scholz and Sig Rydquist contributed to this report