What Happens Now to Texas Polygamy-Sect Children?

Talk about a reversal of fortune. A Texas appeals court on Thursday threw out the legal justification for the removal of 468 children from the Yearning for Zion compound in Eldorado, Texas, setting the stage for a possible return to their parents of many of the children from the polygamous sect. Saying that the lower court "abused its discretion in failing to return the children" during a mid-April hearing, the Third District Court of Appeals wrote that state child-welfare officials had failed to justify the mass removal with solid evidence that the children had been in the immediate danger Texas law requires before state officials can order an emergency separation from parents.

The three-judge panel dismantled the arguments that state Department of Family and Protective Services used to justify the mass removal of the children of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which broke away from the mainstream Mormon church after it banned polygamy in 1890. The emergency removal had come on the theory that all the children were in immediate danger--the only legal justification for emergency removal under Texas law--because of the sect's alleged practice of marrying off and impregnating underage girls. The practice still didn't rise of the level of urgent danger, the court found. "Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as [child-protection officials] contend, there is no evidence that this danger is 'immediate' or 'urgent' … with respect to every child," the court said. The teen girls' situation wasn't so dire as the state had argued, either. The court found that 15 of the 20 girls the state had initially claimed had gotten pregnant between 13 and 17 had actually been older. And the court rejected the idea that the compound amounted to a single "household" so that sexual abuse by one family presented an immediate danger to children in all of the ranch's estimated 200 families.

Thursday's ruling applied to the children of 38 FLDS mothers who'd gone to court. But their children--and those of others who may join the case--won't be going home immediately. The appeals court gave the lower-court judge 10 days to release the children. But it could take longer. Child-protection officials on Friday appealed the case to the Texas Supreme Court, asking to retain custody of the children as long as legal doubts remain about their safety on the ranch.

American Civil Liberties Union of Texas legal director Lisa Graybill has monitored the case since the emergency removal started six weeks ago. Though the ACLU is not directly involved in the case, Graybill has spoken out to criticize state child-protection officials for ignoring the parents' rights. Speaking by phone with NEWSWEEK's Andrew Murr, she called the decision "a fairly clear rebuke" of the lower-court decision. Excerpts:

NEWSWEEK: What did the court say?
Lisa Graybill: The Third District Court of Appeals, based in Austin, said basically that the state had not demonstrated it had an adequate basis in fact or law for removing the children of those 38 mothers and taking them into state custody.

It is a remarkable decision. It is an about-face. It is very welcome in the sense that the court of appeals has reminded the district court and the families and the public that due process of law requires evidence. And equal protection means that that law applies to everybody. As important as the goal of securing the safety of all the children in the state, the appellate court has reminded us due process demands a more careful and thorough view of the evidence than some families received at the hands of the district.

In Texas, what is the test for removing a child on an emergency basis?
The Department of Family and Protective Services is required to demonstrate first that there is a danger to the physical health or safety of the children being removed. Second that there is an urgent need for the protection of the children such that the immediate removal from the parents was necessary. Third, the department has made reasonable efforts to find other alternatives to removal from their parents.

So what went wrong?
The court found that the department had failed to produce at the 14-day hearing in April adequate evidence that these specific children of the 38 moms were in physical danger, that there weren't other alternatives and that the state was justified in saying the problem was urgent.

Who were the 38 moms?
These are the mothers who are being represented pro bono by one of the legal aid organizations, Texas RioGrande Legal Aid. These are not all of the moms whose kids were taken away, but I don't know what percentage of the total number of moms the 38 moms represent.

What were the due-process issues?
The court raised the same issues that the ACLU and many advocacy groups had identified when the hearings occurred. We were concerned about whether adequate due process had occurred with these families. People were concerned whether the beliefs of the families were at issue in the decision to remove the children. The court's decision repeatedly talks about the state's references to the families' beliefs as inadequate evidence to justify removal on this scale--absent evidence that the children of these women were in fact in physical danger. And the court recognized that the parents have a constitutionally protected right to freely exercise their religion and to raise their children in their own faith. Obviously, no parent has the constitutional right to abuse a child, but the court found that at least in the case of these 38 women, the state had not met its burden.

The court criticized the evidence the state used to justify the removal. One was the idea that all the children were in danger whether or not there was any danger in their home because the state considered the entire Yearning for Zion compound one big household where danger was present. That's unusual, isn't it?
It is unusual. But in fact there are a variety of situations where people do live cooperatively, on farms and ranches, in all different religions. But the court found what a lot of observers had said during the trial: the state seemed to call the entire facility one household when it suited them and not to when it did not suit them. I think the court identified that inconsistency and basically said in this decision you can't have it both ways.

Similarly, the removal was based on the idea that the group's "pervasive set of beliefs" in making young girls marry somehow endangered all the children, including the boys and the younger girls. The court took issue with that, didn't it?
That's a profound concern of the ACLU, and the court absolutely took issue with that. Because the fundamental principle here is the idea that beliefs are the same as action. Or that beliefs can be found dangerous as opposed to action. If the state has that kind of leeway to criminalize thoughts and beliefs, or if not criminalize, make civil penalties [like removing children] for those thoughts, you can imagine the influence that would have on freedom of religion. Some of the evidence put forward by an expert on the FLDS was that in this religion girls come of age when they reach puberty. That idea unto itself is not unique to this religion or this culture around the world.

The court pointed [out] that there was no evidence of child abuse per se, in the sense of individuals attempting to harm or have sex with children. At least, not in the children of these 38 mothers whose evidence was before it. And the court noted that the number of two dozen young females who may be pregnant and underage may be significantly smaller than the state has reported.

What's the next step?
The state has the option to move for an appeal. The next step would move to the Texas Supreme Court, if the state chooses to go that route. The circuit court clearly states its requirement. So the lower court will have to vacate its order granting custody to the state.

Does that mean those kids will go back to the 38 mothers?
Parsing its language, the appellate court is saying to the district court there isn't enough evidence to reach the conclusion you reached. And the district court has been ordered by this court to vacate its orders of taking the children. How the district court chooses to do that is a bit of an open question. Whether the district court says "scratch that" or schedules more hearings--this is an unusual situation. The district court has to issue new orders that are somehow consistent with [Thursday's] opinion.

Where are the children now?
The children are spread all over the state in foster homes and facilities. We've spoken to guardian ad litems [court-appointed guardians] for the children and attorneys for the mothers and fathers. They have been describing what they have been going through, trying to make the rounds across a state as big as Texas. They want to see the children on their birthdays, and there has been a pretty significant problem with access. It's been difficult logistically.

Does it strike you as unusual that the department got it so wrong, according to this court, legally speaking?
The department has a difficult job and a very important job. We recognize that, and the ACLU absolutely recognizes the importance of the department's role in protecting children. We are opposed to child abuse. But various concerns have been raised about the infusion of this number of children into an already overburdened and not entirely successful child-protective system. It's fair to ask those questions.

Are you surprised that the appeals court rebuff was as strong as it was?
The court identified many of the same kinds of concerns that advocates like the ACLU raised. It is a fairly clear rebuke. It is mandating a significant change in the direction of this case by saying these individuals didn't receive due process in those 14-day hearings, and it raises the question of whether they have received due process throughout these proceedings. The hearings have resumed in San Angelo, and the state is presenting service plans for each of the children. Now there are some open questions that have to be answered about those service plans. Are they adequately individualized for each of these children? I would imagine the attorneys for the state and for the parents and children are reconsidering their positions in light of the courts' decisions.