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In a split May 29 decision, the Texas Supreme Court upheld a mandamus decision by Austin’s 3rd Court of Appeals that orders the children removed from a polygamist compound in Eldorado to be returned to their parents. Although it’s not clear from the opinion in In Re: Texas Department of Family and Protective Services, a lawyer for three of the mothers who appealed 51st District Court Judge’s Barbara Walther’s April decision to the 3rd Court says the Supreme Court’s ruling will apply to all of the more than 450 children who are in state custody and will allow them to be reunited with their parents. Walther had granted the department temporary custody of some of the children who had been living at the West Texas Yearning for Zion ranch of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). “On the record before us, removal of the children was not warranted,” the high court wrote in a per curiam majority opinion. However, the court took pains to explain, among other things, that its decision does not interfere with Child Protective Services (CPS) continuing its investigation into the YFZ ranch. The district court can still remove a “perpetrator” from a child’s home, the high court majority wrote. The Department of Public Safety began a search of the many buildings on the FLDS’ Eldorado compound on April 3 after a 16-year-old girl there called a local family violence shelter to report that her 50-year-old husband allegedly beat and raped her. The girl was 15, and her husband was 49, at the time of their “spiritual marriage.” But in a dissenting opinion, Justices Harriet O’Neill, Phil Johnson and Don Willett found CPS had presented enough evidence to the district court to warrant the children’s removal. “Evidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the ranch — evidence sufficient to satisfy a ‘person of ordinary prudence and caution’ that other such girls were at risk of sexual abuse as well,” the dissenters stated, noting that the trial court did not abuse its discretion. The 3rd Court of Appeals ruled last week in two separate mandamus opinions that Walther abused her discretion in allowing CPS to remove the children of some mothers. The mandamus in In Re: Steed consisted of 38 mothers with 130 children; the mandamus In Re: Bradshaw consisted of three mothers with 13 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 (TDFPS), which oversees CPS. TDFPS filed a motion for emergency relief at the Texas Supreme Court on May 23, seeking a court order to temporarily allow it to keep custody of the children removed from the YFZ ranch. “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’s resolution of both uncontradicted evidence supporting the trial court’s finding and factually disputed issues,” TDFPS alleged in the motion. The mothers filed a response the same day arguing that there were no grounds to overturn the 3rd Court’s ruling. They pleaded with the high court not to inflict further harm on the children by keeping them away from their parents. “By denying the stay and allowing the court of appeals’ order to take effect, this Court would halt the only harm that everyone is certain is occurring,” the mothers wrote in their response. “As the court of appeals correctly determined, there is no evidence of any equivalent harm — including abuse — that could justify the stay.” On May 28, the high court asked for further response to the state’s mandamus petition in In Re: Steed and In Re: Bradshaw. On May 29, the court released its decision. David Schenck, a partner in the Dallas office of Jones Day who was lead counsel for the mothers in In Re: Bradshaw, says the high court’s decision means all of the children removed by CPS will go home. “There’s only one rule of law. And I think CPS acknowledged that in its filing that there would be a ruling that’s universally applicable,” Schenck says. “But the investigation continues, and the state continues to have the right to act to protect the kids where it actually has evidence.” Mark Ticer of Dallas’ Law Office of Mark Ticer who represents several of the children as an ad litem, expects they will be returned to their parents as soon as transportation can be arranged. He doesn’t fault Walther for making the decision that allowed CPS to retain custody of the children. “It’s a bad situation and a tough situation,” Ticer says. “This wasn’t presented perhaps in the best light, and she did what she thought was best, and you can’t fault somebody for that.” Two lawyers representing the Texas Department of Family and Protective Services, which oversees CPS, did not immediately return telephone calls seeking comment.

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