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Julie Balovich, a Texas RioGrande Legal Aid staff attorney, recalls pulling more than one all-nighter this past spring. During a two-month whirlwind of dramatic legal activity, Balovich was a lead lawyer representing 48 mothers who had lived at a polygamist ranch in West Texas. In early April, those mothers' 126 children were among the roughly 416 kids removed from the Yearning for Zion Ranch of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) by Child Protective Services (CPS), an arm of the Texas Department of Family and Protective Services (TDFPS). CPS removed the children after allegations of child abuse at the ranch surfaced.
The case drew national media attention, as reporters descended upon the town of San Angelo, where the children were moved. The reporters, drawn by the drama provided by the sheer number of children removed, also fixated on the typical way of life at the ranch and the differentness of the people who lived there, where women wore old-fashioned full-length dresses and hairstyles from another era.
By April 7, TDFPS had filed 126 removal petitions in 51st District Judge Barbara Walther's court. By the next week, the State Bar of Texas was leading an effort to find 100 lawyers willing to volunteer to serve as attorneys ad litem for what appeared to be the biggest family law case in Texas history.
But Balovich says it was Betty Balli Torres, executive director of the Texas Access to Justice Foundation, a nonprofit that helps fund legal aid in the state, who informed her that the FLDS mothers needed representation for the upcoming hearing on the emergency removals.
Balovich and fellow TRLA staff attorney Amanda Chisholm spent the next two days — one of many during the litigation when they worked more than 16 hours straight — trying to meet with their clients who were temporarily living in the San Angelo Coliseum with their children who had been removed from the ranch. TDFPS officials, Balovich says, barred the lawyers from going inside the coliseum, and most of the women didn't have cell phones, so it was a challenge just to talk with all of them.
After a two-day hearing that began April 17, Walther concluded that the removal was proper under Texas law. So the TRLA lawyers contacted Amy Warr, an associate with Austin's Alexander Dubose Jones & Townsend, for help on appellate issues. TRLA primary attorney supervisor Robert Doggett and Alexander Dubose partner Douglas W. Alexander also joined the team. They successfully sought mandamus at the 3rd Court of Appeals in Austin, which ordered the trial judge to vacate the temporary orders granting TDFPS sole managing conservatorship of all the children.
The removal of the children from the FLDS ranch in Eldorado eventually led to a showdown at the Texas Supreme Court between the mothers and TDFPS, resulting on May 29 in a split decision. Justices Harriet O'Neill, Phil Johnson and Don R. Willett dissented in part and concurred in part with the majority opinion.
In In Re: Texas Department of Family and Protective Services on Petition for Mandamus, the majority upheld the 3rd Court's mandamus decision ruling in favor of the 48 mothers. As a result of the opinion, all of the 416 removed children were eventually returned to their parents.
"On the record before us, removal of the children was not warranted," the high court majority wrote in a per curiam opinion.
Jack Sampson, a University of Texas School of Law professor who founded the law school's Children's Rights Clinic, says the Supreme Court's opinion drove home a point paramount in all parents' rights cases that will be remembered for a long time in Texas family courts: The state needs evidence of a threat to remove children from their homes on an emergency basis.
The high court, Sampson and the TRLA lawyers say, cut through the media frenzy and instead focused on what mattered: the evidence. Specifically, the court ruled that TDFPS had not shown enough evidence to warrant the emergency removal of the children.
The ruling, Warr says, means "the government cannot assume people are doing things bad, take away their children, and make them prove that they are not." Adds Balovich, "The decision corrected the balance of power between parents and the government in child removal cases."
Initially, Sampson criticizedthe TRLA's efforts, Doggett notes. Sampson agrees that he was a skeptic, because he felt there were kids who needed protection. Sampson says he still regards the Supreme Court opinion as "not nuanced enough." Sampson expresses empathy for Walther, who signed the removal order and granted TDFPS emergency custody.
"Any time [CPS] picks up a child, the time frame is very problematic," says Sampson. He says Walther and other judges all know of cases where children were returned to homes of alleged abusers and, as a result, the kids suffered severe consequences. In her rulings, Walther erred on the side of caution by allowing CPS to take all 416 children into state custody, says Sampson. But then the appellate courts erred in the other direction, ruling all the children could be returned, he says. Although he agrees with the dissenting justices to some extent, he says the focus for Balovich's team ultimately and correctly centered on the overriding principle that the evidence needed to be examined in each individual removal case.
To date, six FLDS members have been indicted by a grand jury in Eldorado on charges of bigamy or sexual assault of a child or in some instances both. The defendants have all pleaded not guilty. Balovich says attorney-client privilege prevents her from disclosing if any of the defendants in those cases are family members of or married to the mothers she represented. Balovich says that TDFPS has nonsuited all of the removal cases filed on behalf of the children of her clients. She adds that all of her clients have custody of their children, although not all of the FLDS families have returned to the ranch. Her clients also have completed parenting courses.
At the agency, Trevor Woodruff, a staff appellate attorney who led the TDFPS team that opposed the mothers, declines comment. Patrick Crimmins, a spokesman for the agency, explain s in an e-mail: "We cannot comment. There are still a number of pending lawsuits involving the children, and we are anticipating litigation against [the department] as a result of the [West Texas ranch] operation."
Chisholm notes that the favorable Texas Supreme Court ruling gives her more confidence in the legal system. "To see the law work and to see the law mean something, it confirmed why I'm doing what I'm doing," she says.
