Family Law

State Wrongly Removed 400 FLDS Kids, Texas Appeals Court Says

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Updated: Texas officials exceeded their authority by taking some 400 children of a religious sect from their parents at the Yearning for Zion ranch last month and putting them in foster care, a state appeals court says.

Responding to a mandamus filing by Texas RioGrande Legal Aid, the Third Court of Appeals held the state’s Department of Child Protective Services didn’t establish that the children were in imminent danger and acted hastily by taking them from their families on an emergency basis, according to KXAN, an NBC News affiliate. The families are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which reportedly advocates polygamy and marriages of teenage girls to much older men.

However, “the existence of the FLDS belief system as described by the department’s witnesses, by itself, does not put children of FLDS parents in physical danger,” the court says in a written opinion (PDF). It applied Section 262.201 of the Texas Family Code in reaching its ruling.

Without evidence of physical danger, removing children from their homes on an emergency basis before the issue of parental custody was litigated was too extreme a measure to be permitted under the statute, the court explains.

“The danger must be to the physical health or safety to the child,” the court writes. “The Department (CPS) did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty.”

It also says the record doesn’t show that child welfare officials made “any reasonable effort … to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children.”

Recent news coverage indicates initial reports that numerous underage teens found at the YFZ compound are or have been pregnant may have been incorrect, as discussed in a Salt Lake Tribune article today.

It wasn’t clear from initial news coverage whether the court’s decision applies to all of the children removed from YFZ (who numbered 468, the opinion says), or may exclude girls who have reached puberty or some members of this group.

“The appellate decision technically applies only to 38 of the roughly 200 parents who challenged the seizure. But their lawyer, Julie Balovich of Texas RioGrande Legal Aid, said she expected attorneys for all the other parents to seek to join the ruling,” states an Associated Press article filed later in the afternoon.

It appears from the opinion that specific evidence of sexual abuse was lacking concerning many, most or even all of the teenage FLDS girls who have reached puberty. A total of five became pregnant between age 15 and 17, the opinion says, but it cites a lack of evidence about the circumstances involved and their marital status at the time.

“The ruling directs the district court to vacate the temporary orders granting conservatorship, or custody, of the children” to the state’s Department of Family and Protective Services, reports the Deseret News.

State District Judge Barbara Walther now has 10 days to do so, according to a joint article by the San Antonio Express-News and Houston Chronicle.

More details about what will happen now to some 465 FLDS children in foster care in Texas are expected to be provided at a news conference this afternoon.

Additional coverage:

CNN: “Court: Texas had no right to remove polygamists’ children”

New York Times: “Appeals Court Rules Against Texas in Polygamy Case”

Updated at 4:30 p.m. to include additional coverage.

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