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Texas Lacked Authority to Remove Some Polygamist Sect Kids From Ranch
Texas Lawyer
May 22, 2008
The state of Texas did not have authority to remove some of the more than 450 children from the Yearning for Zion ranch located outside Eldorado, Austin's 3rd Court of Appeals ruled Thursday.
In a per curiam opinion, the three-justice panel granted a writ of mandamus sought by 38 women who are mothers to some of the children. The 3rd Court ordered a trial judge to vacate temporary orders granting sole managing conservatorship of the children to the Texas Department of Family and Protective Services, which oversees Child Protective Services (CPS). In a footnote, the court wrote that "this proceeding does not involve parents of all of the children removed." The opinion does not indicate the number of children whose mothers brought the mandamus.
The children were removed from the polygamist compound in early April and on April 21, 51st District Judge Barbara Walther signed temporary orders placing the children in CPS custody. Walther's district is comprised of Coke, Irion, Schleicher, Sterling and Tom Green counties.
CPS sought temporary custody of the children after a 16-year-old girl living on the ranch allegedly called a local family violence shelter to report that her 50-year-old husband beat and raped her. CPS has not yet identified the girl.
But on May 22, the 3rd Court agreed with the women that the department failed to meet its burden of proof under §262.201 of the Texas Family Code. The section requires the Texas Department of Family and Protective Services to demonstrate the children were in physical danger, that there was an immediate need to remove them from the parents to protect them and that the department made reasonable efforts to prevent the removal of the children from their parents.
The panel found that evidence presented at a district court hearing on April 17 and 18 was "legally and factually insufficient" to support the judge's findings that the department maintain custody of the children, and the district court abused its discretion by failing to return the children to their mothers.
"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 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," the panel wrote.
The panel also wrote there's no evidence of any immediate danger, and the record does not reflect if the department made efforts to do anything short of removing the children from the ranch.
Justices W. Kenneth Law, Robert Pemberton and G. Alan Waldrop comprised the panel that issued the opinion.
Gary Banks, managing director of the Texas Department of Family and Protective Services in San Angelo, who filed the CPS removal petitions, refers questions to department spokeswoman Marleigh Meisner. "We just received this information from the Court of Appeals. We are trying to assess its impact on our case," Meisner says, declining further comment.
Jerry Strickland, a spokesman for the Office of the Texas Attorney General, says the Texas Department of Family and Protective Services is handling the litigation and declines to comment further. The AG's Office is listed on the 3rd Court's online records as representing the department.
Robert Doggett, a lawyer at Texas RioGrande Legal Aid in Austin who represents the mothers, could not immediately be reached for comment. But in a written statement on May 22, Julie Balovich, another lawyer at TRLA, says it's time that a court stand up and rule that what is happening to the families is wrong.
"The way that the courts have ignored the legal rights of these mothers is ridiculous," she says in the written statement.
Toby Goodman, a family lawyer and partner in Arlington's Goodman & Clark, says he is not surprised the appeals court overturned the district court ruling. "This case is so out of whack with what is normal," says Goodman. He believes the appeals court made the right decision. "I think you have to look at each child's case to determine whether or not that child is at risk. You cannot consider them all on the same basis."
