The Texas Department of Family and Protective Services filed a motion for emergency relief at the Texas Supreme Court on Friday, seeking a court order that would allow it temporarily to keep custody of children removed from the Yearning for Zion ranch near Eldorado, Texas.
In the motion, TDFPS seeks a stay to prohibit the state's 3rd Court of Appeals from enforcing a conditional mandamus it issued on Thursday that orders 51st District Judge Barbara Walther to vacate her order giving the department temporary custody of some of the 450 children who had been living at the polygamist compound.
The TDFPS seeks the temporary stay to allow the Supreme Court to review a petition for mandamus it also filed on Friday. TDFPS wants the Supreme Court to determine that Walther did not abuse her discretion in giving Child Protective Services temporary custody of the children and to determine that the 3rd Court did abuse its discretion when ordering Walther to vacate her order.
Represented by a team including lawyers from Texas RioGrande Legal Aid and Amy Warr, a lawyer at Alexander Dubose, Jones & Townsend in Austin, Texas, a group of 38 mothers sought the mandamus from the 3rd Court. Warr could not be reached for immediate comment.
In its memorandum opinion on Thursday, the 3rd Court agreed with the women that the department failed to meet its burden of proof under Texas Family Code §262.201. The section requires TDFPS 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.
In its petition for writ of mandamus, TDFPS argues the 3rd Court erred in granting mandamus and abused its discretion "as it embarked on a detailed review of the evidence in the record."
"Instead of conducting an abuse of discretion review, the court of appeals engages in a full out re-trial of the issues at the appellate level, including reweighing the evidence and second-guessing the trial court' resolution of both uncontradicted evidence supporting the trial court's finding and factually disputed issues," TDFPS alleges in the petition.
But in its petition asking the Supreme Court to review the case, TDFPS argues that evidence at the hearing specifically addressed all three prongs of §262.201 and met the proof.
In a per curiam opinion on Thursday, the three-justice panel of the 3rd Court granted a writ of mandamus sought by 38 women who are mothers to about 130 children. The 3rd Court ordered a trial judge to vacate temporary orders granting sole managing conservatorship of the children to TDFPS, which oversees 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, but Robert Doggett, a lawyer with Texas RioGrande Legal Aid who represents the mothers, says it involves about 130 children.
The children were removed from the polygamist compound in early April. On April 21, 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 Fundamentalist Church of Jesus Christ of Latter Day Saints' "Yearning for Zion" ranch in Eldorado 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.
Justices W. Kenneth Law, Robert Pemberton and G. Alan Waldrop comprised the 3rd Court panel that issued the opinion.
TDFPS appellate lawyers Trevor Woodruff, Duke Hooten and Michael Shulman filed the petition for writ of mandamus and the motion for emergency relief on Friday.