Court: Texas Had No Right to Keep Polygamist Kids

Appeals court overrules decision that placed kids in temporary state custody.


May 22, 2008— -- An appeals court ruled Thursday that Texas didn't have the authority to keep hundreds of children from a polygamist sect in state custody, a ruling that could derail one of the largest child protection cases in U.S. history.

The 3rd Court of Appeals in Austin, in response to motions from 41 sect mothers, ruled that Child Protective Services did not present enough evidence at an April hearing to show that the children were in immediate danger of abuse, which would have justified keeping them in state custody.

The impact of the decision was not immediately clear, but it could mean that the approximately 130 children of the 41 mothers will be returned to their families, possibly within 10 days.

Texas Child Protective Services was given 10 days to appeal the decision to the state supreme court, though by Thursday evening the agency had not decided if it would appeal.

The reasoning behind the decision will probably apply to the more than 300 other sect children in state custody -- a huge defeat for Child Protective Services, which claimed it had evidence of a widespread practice of marrying off underage girls to older men.

"It's a great day for Texas justice," said Julie Balovich, a lawyer for some of the women.

The ruling comes as several mental health workers, in court papers filed by Fundamentalist Church of Jesus Christ of Latter Day Saints' attorneys and obtained by ABC News, offered a portrait of the state's raid that at times appeared at odds with Child Protective Services' past descriptions, saying CPS workers were hostile and suspicious.

The state raided the compound and took all 463 children into state custody, first placing them in shelters at the local coliseum and then in temporary foster homes scattered across the state.

But a local judge had initially refused to allow Texas Rangers to search the compound, according to a statement from Texas Ranger Leslie Brooks Long. Long then took the same information to a different judge, who approved the search warrant, his statement says.

Linda Werlein, director of a local mental health and mental retardation center who assisted CPS in the days after the raid, said CPS workers treated her staff with suspicion, told her they would be arrested if they interfered with the questioning of the mothers, and that the church mothers would not talk without their attorneys present.

"Each and everything we were told was either inaccurate or untrue," she said in her statement, adding, "I was struck by what wonderful mothers they were."

She said CPS workers appeared suspicious of the mothers. At one point, she said, a CPS investigator told her that the sect would "kill all of the children they deemed to be imperfect."

Another mental health worker described the coliseum where the children were staying after being seized by the state as "like a Nazi concentration camp," saying the children were given inadequate food and lived in cramped quarters.

She said the lights were kept on at all hours and that CPS workers would shine flashlights in the faces of the women. When the mothers were separated from their children and returned to the ranch, several mental health workers said, they were not given a chance to say goodbye to their children.

By the end of their multiweek time in the emergency shelters, the women and children appeared "weak, confused and downright exhausted," wrote Bianca Spies.

Another mental health worker, Terre Reid, said she heard a CPS worker say, "These women will have to choose between their church and their kids."

The church has cast the raid 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.

Thursday's ruling in many ways echoes the sect's last major encounter with law enforcement, a 1953 raid on the Fundamentalist Church of Jesus Christ of Latter Day Saints community in Arizona.

After that raid, Arizona authorities arrested dozens of men and took 263 sect children into custody.

Within two years, all of them were back, and the group's polygamous practices continued.

"Every one of them came back home," said Benjamin Bistline, a former sect member who was 18 at the time.

In that case, 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.

Texas can appeal Thursday's decision to the Texas Supreme Court, and by Thursday evening CPS was still determining its course of action. Status hearings for the children that began earlier this week were suspended for the rest of the week.

Despite the ruling, the state can still continue its investigation into allegations of abuse among sect children and can ask the court to grant the state permanent custody of the children.

"We just received this information from the Court of Appeals, and it is being reviewed," Child Protective Services said in a statement. "We are trying to assess any impact this may have on our case and what our next steps will be."

Texas Rio Grande Legal Aid, which represents 38 of the mothers, also said it was not immediately clear what would happen to the children.

Though the decision applies only to the 41 mothers and their families, the court's reasoning appears to apply to many of the other sect children in state custody who are not underage brides or did not live in a house where an underage girl was married to an older man.

"Both TRLA attorneys and the mothers that we represent are ecstatic about this news," said Balovich. "In ruling this way, the 3rd Court of Appeals has stood up for the legal rights of these families and given these mothers hope that their families will be brought back together."

The state Child Protective Services had argued that more than 450 children taken from the sect's compound in West Texas were at risk of abuse, arguing that the sect coerced underage girls to marry older men and groomed boys to become sexual perpetrators.

But contrary to what the state had argued, the court found that the polygamist sect's belief system, by itself, did not place the children in danger of abuse.

"The department did not present any evidence of danger to the physical health and safety of any male children or any female children who had not reached puberty," the court said.

There was also no evidence that any of the children of the 41 mothers had been sexually abused or lived in a household where another child had been abused, the court stated, rejecting the state's argument that the entire ranch constituted one household. Nor was there any evidence that any of the mothers had allowed or would allow their daughters to be abused, the court said.

"Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal," the court wrote.

Texas officials took all the sect's children into custody last month, claiming the group encourages marriage between underage girls and older men, placing the children at risk of abuse, which members of the Fundamentalist Church of Jesus Christ of Latter Day Saints deny.

At a two-day group hearing last month, Walther ordered that all the children be kept in temporary state custody. Walther has 10 days to comply with today's ruling.

The state had said that as many as 31 sect girls in state custody were underage and either pregnant or already had children. But at a series of follow-up hearings that began this week, the state has admitted that 15 of those girls are older than 18.

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