Texas Appellate Court Rules State Seizure of FDLS Children Was Wrong

The raid on the YFZ Ranch happened April 3, 2008. This photo taken April 4 by a member of the FLDS.

“The Department did not present any evidence of danger”

In a stunning reversal, the Texas 3rd District Court of Appeals reversed the District Judge who ruled last month that the children sized in the April 3, 2008 raid on the Fundamentalist Church of Jesus Christ of Latter-Day Saints, should not have been taken by the State, saying “The Department did not present any evidence of danger.”

CNN

The judges did not order that the children be returned to Yearning for Zion Ranch in Eldorado, but they directed the lower court to vacate its order granting custody of the children to the state.

In its ruling, the Texas 3rd District Court of Appeals decided in favor of 38 women who had challenged the removals and appealed a decision last month by a district judge that the children remain in state custody.

"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger," the three-judge panel said.

More than 450 children were removed from their homes on the Yearning for Zion Ranch, which is owned by the Fundamentalist Church of Jesus Christ of Latter-day Saints, a Mormon offshoot that practices polygamy.

An attorney representing the mothers said the trial court that originally backed the state's seizure of the children has 10 days to vacate its decision. If it doesn't, the appeals court will act, said Julie Balovich of Texas RioGrande Legal Aid.

Although the ruling applies only to 38 mothers and their children represented in this case, "we believe the reasoning in the court of appeals decision would apply to all children," Balovich said.

After the state took custody of the children, the mothers appealed the order on the grounds the department failed to establish that the need for protection was urgent.

Because no such proof was presented, the mothers argued, the district court -- which backed the department's seizure of the children -- "was required to return the children to their parents and abused its discretion by failing to do so."

The appeals panel agreed.

"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 prior to full litigation of the issue," the panel wrote.

Outside the courthouse, Balovich said it was "ridiculous" how the courts had ignored the parents' rights.

"It was about time a court stood up and said that what has been happening to these families is wrong," she said.

Flanked by the FLDS mothers represented in the case, Balovich said authorities considered the YFZ Ranch one household, an assertion with which the appeals court did not agree.

Therefore, proving that there was abuse in one household did not mean the state could apply that behavior to the entire ranch.

"This was the right decision," Balovich said, adding that she and her clients are "ecstatic about this news."

The authenticity of the initial abuse reports that turned authorities' attention on the ranch is in question, the court noted in its ruling.

Police have alleged that a family shelter crisis line received multiple calls March 29 and 30 from a caller claiming to be Sarah Jessop Barlow, age 16.

At least one of the telephones used by "Sarah Barlow" has been traced to a Colorado woman. Police say Rozita Swinton is a person of interest in connection with the reports of abuse at the ranch, but she has not been charged. She does, however, face a charge of providing a false report to authorities in a Colorado case.

Here are some key quotes from the actual opinion.

The Volokh Conspiracy

The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]

The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]

There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.

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 as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.

They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....

Sara has blogged extensively about the FLDS. Here are some links...

The Third Strike -- Nov 20, 2007

Well, Warren Jeffs finally got sent to prison. The sentence was two consecutive five-year terms -- which means he'll be paroled in seven, the way things usually go -- which hardly seems like enough for a guy who arranged for the statutory rape of dozens of adolescent girls, each of whom will be scarred for life by the choices he made on their behalf. But it's the first time in a long time that anybody in the Fundamentalist Church of Latter-Day Saints (FLDS) has seen the inside of a jailhouse, and I suppose we should be grateful for a good start.

Are FLDS women brainwashed? -- April 16, 2008

Almost every feature of these women's lives is determined by someone else. They do not choose what they wear, whom they live with, when and whom they marry, or when and with whom they have sex. From the day they're born, they can be reassigned at a moment's notice to another father or husband, another household, or another community. Most will have no educational choices (FLDS kids are taught in church-run schools, usually only through about tenth grade -- by which point they girls are usually married and pregnant). Everything they produce goes into a trust controlled by the patriarch: they do not even own their own labor. If they object to any of this, they're subject to losing access to the resources they need to raise their kids: they can be moved to a trailer with no heat, and given less food than more compliant wives, until they learn to "keep sweet."

The Secret Lives of Saints -- April 19, 2008

One of the most perceptive and tenacious reporters covering these developments as been Daphne Bramham of the Vancouver Sun. (A collection of her reporting on the FLDS over the past several years can be found online here.) Bramham's focus has been on the remote 2500-member Bountiful compound just outside Creston, BC, which was founded in 1947 by Roy Blackmore and a group from one of Canada's largest historical Mormon settlements in Cardston, AB. Roy's son Winston Blackmore inherited the role of patriarch for the community until Warren Jeffs cheated him out of control in 2002.

What We're Not Talking About, Part I: Other Issues With the FLDS -- April 21, 2008

One of the things we need to understand is just how the FLDS managed to stay so far under the radar for so long -- and what twisted consequences were allowed to follow from that lack of oversight. Bramham shows that they did a stunningly effective job of building their own self-sufficient infrastructure of community institutions -- hospitals, police forces, courts, financial trusts, schools, and employers -- that allowed the church to function without interacting with the outside world any more than necessary. Most of the group's institutions were designed to mimic and supplant outside authority well enough to keep the group (and especially its treatment of women and children) hidden from the prying eyes of outsiders. And, for 60 years, those who were responsible for providing higher-level oversight for all these institutions have almost always been somehow induced to look the other way.

How Dangerous is The FLDS? -- April 22, 2008

One of the trickiest parts of dealing with the extremist right is figuring out whether a given group is just harmless garden-variety crazy -- or harboring the special kind of insanity that will lead to acts of local violence or outright domestic terror.

It's a question worth asking in the wake of the state of Texas' intervention in the Eldorado colony of the Fundamentalist Church of Latter-Day Saints. As the country is thrust into a fresh debate over individual religious freedom versus our collective interest in protecting people's civil rights, we're struggling once again with the deeper question: When should we leave people alone? And when does the state have a public duty to intervene?

Or read The Secret World of Polygamy in The Vancouver Sun, featuring Daphne Bramham.

Quite the bit of news.

Is the entire FLDS culture so damaged that the state has a duty to intervene? Or are the tools of the state such a blunt instrument they could be used to rip apart virtually any religious household?

Is the Appeals Court right?

Is this nothing but rape and sexism, now being imprinted with the official grant of the Court? Or is this the Court protecting the rights of all of us by refusing to let the Texas Department of Family and Protective Services tear families apart? Keep in mind, that Family and Protective Services, regardless of its name in any state, is typically not especially respectful of family rights. The abuses of CPS (as it is known here) in my own state of Washington, are legion.

Yet.

Girls being married routinely at 14 and 15. To men in their 40s and 50s. While the boys are pushed out of the family (lost boys) onto the street with just the money in their pocket, to make certain there are enough girls for the men.

That's simply wrong.

What are your thoughts?