In a massive clash between church and state, a band of Texas lawyers learns that individual stories still count
Posted Oct 1, 2008 3:00 PM CST
By Stephanie Francis Ward
When Susan L. Hays took an attorney ad litem assignment for one of the many Texas custody cases of the Fundamentalist Church of Jesus Christ of Latter Day Saints, she never imagined her client would be 2 years old.
“I thought I was going to get a pregnant teenager and her creepy 50-year-old husband,” says Hays, a Dallas sole practitioner who co-founded Jane’s Due Process, a Texas group that helps teenagers obtain legal abortions without parental consent.
Hays was among the nearly 300 lawyers who represented children removed earlier this year by Texas authorities from the Yearning for Zion Ranch in Eldorado. The state believed that church leaders there were arranging “spiritual marriages” between teenage girls and older men who engaged in polygamy.
When news broke in early April of the massive child protection action, lawyers by the hundreds volunteered to represent them from nearly every point of the Lone Star State. But for many of them, what began as a mission to save abused children morphed very quickly. By the time the action was halted by a state appeals court, Hays and others had discovered a different, more complex truth confronting them on the ground.
On the one hand the church has promised to alter its practices, and at least six men have been indicted on charges that include sex with a minor and failure to report child abuse. But the fear still lingers that the group has not satisfactorily answered questions of institutional sexual abuse.
“Everyone wants to simplify this with a gut emotional reaction. And nothing about it is that simple,” Hays says. “It’s a great lawyers’ case because no one is all right, and it will take a long time for the lawyers to sort it out.”
RAIDING THE RANCH
Yearning for Zion is a 1,700-acre self-supporting commune of an estimated 700 residents about 40 miles south of San Angelo in west-central Texas. The compound was established in 2004 by the group’s leader, Warren Jeffs, who is now serving a Utah prison sentence for arranging spiritual marriages between men and underage girls. He’s among those recently indicted in Texas, and similar charges are pending in Arizona. (See “Violation or Salvation?” February 2007.)
The Fundamentalist Church of Jesus Christ of Latter Day Saints, known as FLDS—which broke from the Mormon Church in 1890 over the issue of polygamy—is distinguished by its controversial beliefs and the characteristics of its female members, who dress in pioneer-style dresses with their hair in elaborate French braids.
On March 31, prompted by a series of telephone calls alleging widespread sexual abuse and domestic violence, officials from the Child Protective Services Division of the Texas Department of Family and Protective Services entered the compound and began removing children into protective custody. Within a week, 468 children had been removed.
Under Texas law a child must be in immediate danger to be removed from his or her home. Texas authorities argued that based on the group’s beliefs about spiritual marriages involving minors, all of the children were in danger, whether or not it seemed likely that an individual child was in imminent danger of being married.
The state presented as evidence alleged church records showing that 20 females at the ranch between the ages of 13 and 17 had been pregnant. Some FLDS children and adults told social workers that if a church leader directed someone to marry, no age was too young. Even the boys, department investigators testified, were being groomed to be “perpetrators of sexual abuse.”
But many attorneys ad litem say that when they got to know their clients’ mothers, the women seemed like great parents. Most forbade junk food and television in their homes, and their children were noticeably well-behaved. Children separated from their families constantly asked to be returned to the compound—their home.
Photo by Dennis Murphy
The Texas Family Code holds that normally developed children who have the maturity to understand and form attorney-client relationships—many attorneys ad litem consider children over age 4 to fit that description—have the right to tell their attorney who they want to live with; it’s the attorney’s job to advocate for that. For children younger than that, the attorney ad litem decides what is in his or her client’s best interest.
“It’s not like you have a boyfriend who is sexually abusing the child or beating them, or Mother’s a drug addict,” says Richard “Dicky” Grigg, an Austin plaintiffs lawyer who was appointed attorney ad litem for a 2-year-old girl.
“That is a damn tough call,” says Grigg, who has a grandchild about the same age as his client. He’d never done attorney ad litem work before, and, like most lawyers involved, his training amounted to a three-hour CLE family law course that the State Bar of Texas offered shortly after the Eldorado raid.
Hays and other attorneys ad litem believe the state trampled on the rights of FLDS members in a variety of ways. But many—including some who advocated for reunification—are not completely confident their clients will be safe in the long run.
Hays’ client is 2 years old. The mother is related by marriage to Merrill Jessop, now believed to be in charge of the Eldorado compound. Hays has spent much time talking to the child’s mother. “That was helpful to me because I learned a lot about how she thinks and it made me comfortable with her as a mother, no matter what weirdness goes on with the FLDS,” Hays says.
In June, Hays said she was confident her client’s mother was a good parent, but she didn’t know what information the government had about the child’s stepfather. He was later indicted and charged with bigamy and sexual assault related to his alleged marriage with a teenager. Despite the stepfather’s arrest, Hays’ client was nonsuited in September, as were many other FLDS children. Hays says she’s happy with the court’s decision and will stay in touch with the family.
“The trouble with these cases is you need to protect the children, but you need to do so in a way that minimizes collateral damages,” Hays says.
When the state returned her children, the mother opted to settle at a San Antonio duplex rather than return to the ranch. By July they had moved back.
“Five kids in a duplex on a busy road where the kids can’t play didn’t last long,” says Hays, who was impressed with the ranch. The multiple-story log structures, where many members live in a somewhat communal style, reminded her of condominiums in Aspen, Colo.
“There were also allegations that the children didn’t know how to play, and that’s just BS,” Hays says. “The children are quite playful. They just don’t have unnecessary things.”
Hays, who grew up in nearby Brownwood, eventually told her client’s mother about her work facilitating legal abortions for teens. The woman had no reaction. “Having grown up in west Texas, that surprised me,” Hays says.
“Here are these very pious people—who do not smoke, they don’t drink, they do not cuss—and you’ve got a bunch of lawyers representing them who hang out in bars and cuss like sailors. And they’re fine with that,” says Hays, adding that her client’s mother was surprised that Hays had never married or had children.
“My friend says we were like two monkeys looking at each other in a zoo.”
JOINING THE TEAM
Hays hadn’t planned to take a case initially. the state bar said it probably had enough volunteer lawyers, and her family law experience was limited to representing pregnant teenagers who wanted to obtain a bypass to parental consent for abortions.
But friends from her old law firm convinced her to join them on the trip to San Angelo, the town where the cases were being heard. They attended an attorney orientation at the Emmanuel Episcopal Church downtown, just across the street from the Tom Green County Courthouse where the FLDS cases were to be heard.
San Angelo is a city of 90,000 about 200 miles northwest of San Antonio. But drivers still wave at each other, even if they’re strangers. There’s no Starbucks near the courthouse, but walk just one block east and you can buy a cowboy hat at Bill’s Man’s Shop.
Quite a few lawyers who work downtown live nearby, in an older, upscale neighborhood called Santa Rita. Since most of the San Angelo hotels were filled up with government lawyers and news crews, local lawyer Mary Jane Steadman organized a housing plan for attorneys ad litem to stay with families in the community.
Hays and her friends, for instance, stayed with a ranching family near the San Angelo Country Club.
Photo by Dennis Murphy
“They were lovely people who had the coffee going at 6 in the morning and fed us breakfast,” Hays says. “I was amazed at how well-organized things were.”
Guy Choate, a former president of the Texas Trial Lawyers Association, has lived in San Angelo since he was a child; he served as a media representative for the hearings. In San Angelo, he says, there were only six lawyers trained to do attorney ad litem work, and they welcomed the assistance.
“Everybody in San Angelo wanted to be absolutely sure that we did a good job on these cases. There was an undercurrent of concern because everybody remembers Waco,” he says, referring to the former home of the Branch Davidian religious group. In 1993 the FBI attempted to execute a search warrant at the group’s Waco property, which resulted in 76 members being killed.
Housing for the displaced FLDS women and children was complex.
After a few days at Fort Concho, a former Army base near downtown, the women and children were moved to the San Angelo Coliseum, a 20,000-square-foot arena used for rodeos and indoor football. Lawyers met with clients in the livestock barn, where cubicles were set up for privacy. Many remember a strong scent of horses and hand sanitizer.
Lawyers from Texas RioGrande Legal Aid were already in San Angelo. When they arrived, however, they had no FLDS clients because they were denied access.
Staying four to a room at a Howard Johnson hotel, the legal aid lawyers stayed up all night preparing a lawsuit, which was faxed the next morning to Gary L. Banks, managing attorney of the San Angelo office of the Department of Family and Protective Services. Within 30 minutes, access was granted.
Banks did not respond to repeated requests for an interview from the ABA Journal.
Julie M. Balovich, a legal aid lawyer with Texas RioGrande Legal Aid based in Alpine, met with a group of the FLDS women, who by then were housed at the coliseum.
All of her clients were adult mothers who could not afford private counsel. Their cell phones had been confiscated and they didn’t know to expect legal aid. Balovich says she and her colleagues walked through the structure, explaining who they were. Establishing trust was difficult, and many women feared that the lawyers were associated with the state.
On that first day, Balovich was at the coliseum from noon to 8:30 p.m. and met with a total of three women.
Unlike some of the attorneys, Balovich says she has no concerns about the safety of the FLDS children.
“I’m a feminist, and I was apprehensive about what I was going to be defending,” she says. “The second I met my clients, I wasn’t worried. They are very independent women who are very assertive and very capable of explaining what they love about their lifestyle.”
Mary Noel Golder
Photo by Dennis Murphy
Mary Noel Golder, a San Angelo lawyer who practices with Choate at the plaintiffs firm Webb, Stokes & Sparks, was one of a number of female lawyers called to the courthouse the afternoon of the raid by Barbara Walther, the state judge who presided over the cases.
“They thought they’d pick up between 25 and 30 girls, who for religious reasons would need female lawyers,” Golder says. “I told the judge that I didn’t even have a family code book; she handed me hers.”
Golder represents nine FLDS children who range in age from 3 to 10. A tenth turned out to be 20 years old and was dropped from the cases. All of Golder’s clients told her—repeatedly—that they wanted to go home. One 8-year-old questioned why she was taken from her family.
Golder told her that her household included some people who were married, even though they were too young to be.
“Well, my mother’s not too young, so why am I here?” the girl asked.
“This one,” Golder says, “I don’t worry about.”
PACKING THE COURT
Two weeks after a child’s removal, Texas Law requires a hearing, where all parties in custody cases have a chance to present evidence. The so-called 14-day hearings began April 16. Given the number of children involved, Walther attempted to do one hearing consolidating all of the FLDS cases. It ran for two days.
About 100 lawyers were in the building’s largest courtroom, which is usually used for picking juries. Others listened from a remote courtroom with a video monitor set up at the San Angelo City Auditorium across the street.
Hays, who was in the remote courthouse, says it was hard to follow the proceedings. “The AV connection was horrible,” she says.
The room did have wireless Internet access and cell phone service, so she used the time to research ordering a birth certificate online for her client’s mother.
The woman, who is in her 30s, was originally classified as a minor.
While doing that, Hays tried to follow the proceedings. At the attorney ad litem orientation, she says, horrible abuse was alleged without specifics.
“We were anxious to hear what the deal was,” Hays says. “We were waiting the whole day for the other shoe to drop, and it didn’t come. I knew something wasn’t right because I wasn’t learning much.”
There were many questions, as the lawyers began to suspect that state claims were not supported by evidence.
“Over 20 times the judge would say, ‘I hear your objection; tell me how to fix it,’ ” Choate says.
“When it became apparent we would need about 400 attorneys ad litem, I don’t think anybody could get their arms around what that really meant.”
Jimmy Stewart, a sole practitioner in San Angelo, was one of a handful of lawyers who managed to get “above the rail” into the well of Judge Walther’s courtroom for the 14-day hearing.
“I knew it was going to be difficult, strange and cumbersome when the state offered an exhibit and the court took an hour break so the 100 lawyers there could see it,” Stewart says.
On April 18, Judge Walther signed an order that the children remain in state custody. She also ordered DNA testing for children and adults to determine parentage. Four days later, the state started moving children to foster care. The judge instructed that siblings be kept together, and Hays says a CPS lawyer told her that direction would be followed. It wasn’t.
“I regret taking him at his word,” she says. “They knew my client belonged with her siblings, but they separated them anyway.”
Photo by Dennis Murphy
Balovich says telling her clients about the separation order was one of the hardest things she has done as a lawyer. Previously, she had told them that the state did not seem to have enough evidence to remove children.
“I would tell them, ‘This is how the law works,’ ” Balovich says. “Then I’d have to say later, ‘Well, this is how the law is supposed to work, but it didn’t work out that way.’ ”
The judge at first denied a motion to keep nursing mothers with their children, but later allowed mothers to stay with children younger than 12 months. A state lawyer told the judge that there were 18 infants with adult mothers, but room for only 16 at a San Antonio shelter for battered women. The judge told him to find two more spaces.
“She said it with the perfect tone that said, ‘You’d better friggin’ not separate them,’ ” Hays recalls.
Golder’s clients were sent to Corpus Christi, Gonzalez, Liverpool and Waco. She’d usually bring toys and clothes when visiting.
“My little 8-year-old [client] explained that the girls needed white panties,” Golder says, because it was against their religion to wear underwear with colors.
“I couldn’t find white panties, so we arrived at a compromise and I found some pastel underwear,” Golder adds. “I wanted to develop a relationship with them, so they could trust me.”
While she was in Waco, Golder sat in on one of her client’s parent visits. Under the judge’s order, parents could visit their children once a week.
“When the kids start crying when their mother leaves, you feel one way,” Golder says. “Then when you think about 13- and 14-year-old girls being placed in a marriage relationship, without a choice, you feel different. I’m usually a pretty decisive person, but this is one where honestly every day I have a different feeling.”
Hays’ 2-year-old client was sent to College Station, an east Texas town that is the home of Texas A&M University. The older siblings were placed 260 miles away in Abilene, and the girl’s mother went to the San Antonio shelter with her 6-month-old son.
Hays never visited her client in College Station. Instead she found it more useful to see the mother in San Antonio.
“ ‘I’m not your lawyer—I represent your child. This is not an attorney-client privileged conversation, but if you want to tell me something that will help your child, that’s great.’ I’ve said that about 100 times,’ ” Hays says.
Biological parents could only talk to foster parents during allotted visitation times, so Hays relayed messages between her client’s mother and caregivers. In May, Hays used 8,867 minutes on her cell phone.
“I spent two weeks trying to translate how to put my client to sleep at night,” she says. “And may I add how woefully unqualified I am to accurately relay messages about caring for a 2-year-old, as a childless, career-woman lawyer?”
THE CASE CRUMBLES
Custody hearings, where in theory individual family services plans would be presented to the court, started May 19. Service plans were boilerplate language, attorneys ad litem say, and didn’t reflect individual cases.
“The service plan for my client [stated] that the children are taught not to respect women and fear outsiders. That was not my experience talking to anyone,” Hays says.
Photo by AP Images
Three days later, the 3rd Court of Appeals in Austin vacated Judge Walther’s order, finding that the state did not prove that all the children were in immediate danger.
“There is simply no evidence specific to relators’ children at all except that they exist, they were taken into custody at the Yearning for Zion ranch, and they are living with people who share a ‘pervasive belief system’ that condones underage marriage and underage pregnancy,’ ” the court wrote.
Balovich and a legal aid colleague got word of the opinion in voice mail while driving to visit clients at the ranch. The area is remote and cell phone reception is spotty. When she could, Balovich called her office and someone read her the opinion over the phone.
“We were kind of hysterical,” Balovich says. “I knew the children were going to go home—it was just a question of when.”
Back at the San Angelo courthouse, hearings were canceled as the state filed an appeal with the Texas Supreme Court.
On May 29 the state supreme court issued a press release, stating that an opinion would be published at 4:10 p.m. Hays, who clerked for the court, got the press release in an e-mail while attending an Austin appellate conference.
“I immediately packed up my things and drove to the courthouse,” Hays says, “because I wanted a copy in my hot little hands.” Hays adds that she did not know what to expect.
“They’ve gained a reputation for being pretty political, which makes them unpredictable,” Hays says.
While the supreme court let the appellate opinion stand, a dissent held that the state should keep custody of teenage girls because they seemed to be in most immediate danger. The dissent mentioned Merrill Jessop, Hays’ client’s step-grandfather. FLDS members refer to him as “Uncle Merrill” and say he has the power to decide when and to whom someone should be married.
On June 2, Willie Jessop, an FLDS spokesman, announced that the religion would no longer perform any marriages involving females under the age of legal consent. Some are dubious about the new marriage policy and whether it applies to FLDS leaders.
“The men in power get the young girls,” says Roger Hoole, a name partner with Hoole & King in Salt Lake City who represents former FLDS members. “The problem is not really polygamy; the problem is the belief that women and children are unilaterally the property of the priesthood, and they raise the girls from the cradle to grow up and be mothers and plural wives. It’s all the girls have ever known.”
Choate adds, “I hope the lesson learned isn’t that if you have enough people, and their actions are confusing or duplicitous, you can do what you want. Because if that’s the case, the state doesn’t have any power to protect the most vulnerable.”