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Polygamist families win high-court ruling

Texas did not prove that all of the FLDS compound's children were in imminent danger, the state Supreme Court agrees.

May 30, 2008|Miguel Bustillo | Times Staff Writer

HOUSTON — The Texas Supreme Court on Thursday said the state had no right to take more than 400 children from a polygamist compound last month, opening the door for most of the youths to be reunited with their parents.

The decision was a major defeat for the Texas Department of Family and Protective Services, which had argued that all the children at the Yearning for Zion Ranch in western Texas were in immediate danger because they lived communally under a religion that sanctioned marriage between underage girls and older men.

"The parents are looking forward to being reunited with their children as soon as possible," said Rod Parker, a spokesman for the polygamist sect, the Fundamentalist Church of Jesus Christ of Latter Day Saints. "At this point there is no legal basis to hold anyone."

Texas Rangers and child welfare officials raided the group's fenced-off compound April 3 and reported finding scores of pregnant girls and other evidence of systemic sexual abuse. Built around a towering limestone temple, the compound is home to members of the FLDS, a sect that long ago broke away from the mainstream Mormon Church, which banned polygamy in 1890.

FLDS leaders acknowledged that some girls were pregnant but denied that any children were being harmed. They have been fighting to get the children back in what is believed to be the largest custody battle in U.S. history.

Last week, the 3rd Court of Appeals in Austin found that the state had failed to provide any evidence that all of the children were in immediate danger of sexual or physical abuse, the condition necessary under Texas law to justify seizing them on an emergency basis.

Child welfare officials appealed to the high court, arguing that if the children were returned to their parents, FLDS leaders probably would move them out of Texas. The state also argued that it was not clear who the parents were, because many sect members, men in particular, had not submitted to DNA testing nor provided other proof of paternity.

The Texas Supreme Court shot down those claims. "On the record before us, removal of the children was not warranted," it said in its five-page ruling. However, the justices said that the trial court that granted Texas emergency custody of the children -- and was still debating their fate -- could take other measures to protect them while it deliberated.

Legal experts said that gave the trial court a wide opening to impose restrictions before releasing the children -- requiring parents to stay in the area, to take DNA tests or to move into apartments and away from other polygamist families. The children currently are at various foster homes from Amarillo to San Antonio.

Though the next steps in the custody battle remain unclear, experts said, it is evident that Texas is going to have to deal with each child on a case-by-case basis.

"Texas is going to have to prove that each of these children is threatened," said Carl Tobias, a professor at the University of Richmond School of Law who has been following the legal fight. "There has been criticism of this wholesale approach all along."

In a partially dissenting opinion Thursday, three justices wrote that though they agreed that Texas authorities had overstepped in taking all the boys and young girls from the compound, they felt the state was justified in seizing pubescent girls based on the evidence of underage marriages. The justices also wrote that contrary to the claims of the FLDS, the state did not have any alternatives, because children refused to identify their parents, and parents gave contradictory stories.

Texas RioGrande Legal Aid, which filed the lawsuit on behalf of 38 mothers that led to Thursday's ruling, said it would press to have children reunited with their parents as quickly as possible. Texas courts already have returned more than a dozen children to parents who agreed to keep them in the state while custody proceedings continued.

Thursday's decision was "an important step in reuniting these families," attorney Kevin Dietz said in a statement. "It's great to see that the court system is working in the interest of justice."

Texas officials expressed disappointment at the ruling, but said they would comply.

"Child Protective Services has one purpose in this case -- to protect the children," a statement said. "Our goal is to reunite families whenever we can do so and make sure the children will be safe. We will continue to prepare for the prompt and orderly reunification of these children with their families."

Texas officials argued that they were required by law to remove all of the children because their raid had uncovered widespread evidence of children being sexually abused and of teenage girls, some visibly pregnant, who were in plural marriages. The families were living in communal dormitories, and state officials argued that boys also were threatened because they were more likely to become sexual predators after witnessing abuse.

Subsequent court hearings have documented the existence of married and pregnant girls in the Texas compound, but state officials admitted that at least 15 of the young mothers the state initially detained were in fact adults. One turned out to be 27. At one point, Texas said it had 468 children in custody, but that number is now believed to be about 430.

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miguel.bustillo@latimes.com

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