Current News |
Court Says Texas
Illegally Seized Sect’s Children
By RALPH BLUMENTHAL
May 23, 2008
http://www.nytimes.com/2008/05/23
HOUSTON — A Texas appeals court ruled on
Thursday that the state had illegally
seized up to 468 children from their
homes at a polygamist ranch in West
Texas. The decision abruptly threw the
largest custody case in recent American
history into turmoil.
Although the court did not order the
children’s immediate release, it raised
the prospect that many of them would be
reunited with their families, possibly
within 10 days. The children have been
in foster homes scattered across Texas
since early April, making their parents
travel hundreds of miles to visit them.
Officials of the State Department of
Family and Protective Services, which
led the raid on the ranch in Eldorado,
defended their actions as being taken in
the children’s interest and said they
were considering their next steps.
The unanimous ruling by three judges of
the Third Court of Appeals in Austin
revoked the state’s custody over the
children of 38 mothers and, by
extension, almost certainly the rest,
for what it called a lack of evidence
that they were in immediate danger of
sexual or physical abuse.
One mother, Martha Emack, 23, said she
was “totally thrilled” by the ruling.
“Everyone is totally overjoyed to
tears,” she said in a telephone
interview.
Ms. Emack said both of her children had
been seized — one just turned a year old
and the other 2. “It’s been very
emotional, very traumatizing,” she said.
When asked whether she ultimately wanted
to return to the ranch with her
children, Ms. Emack said quickly, “I do
want to go back.”
The court said the record did “not
reflect any reasonable effort on the
part of the department to ascertain if
some measure short of removal and/or
separation would have eliminated the
risk.”
It said that the evidence of danger to
the children “was legally and factually
insufficient” to justify the removal and
that the lower court had “abused its
discretion” in failing to return the
children to the families.
The ruling, an unusual opinion granting
relief in a case not yet decided, was
issued on the custody challenge by the
38 women and an additional 54 who filed
a second action. Lawyers said the burden
was on the state to show why it should
not apply to the rest of the children,
as well.
Custody hearings under way before five
judges in San Angelo were canceled.
Susan Hays, a lawyer in Dallas who
specializes in appellate law and who is
the lawyer for a 2-year-old taken from
the ranch, said the children might begin
returning home as early as next week.
“Right now, there is an order saying
return the children,” Ms. Hays said. “It
technically does not apply to all the
women’s children. But practically it
does.”
She said the state would have to file a
motion for emergency release quickly
that asks the court to stay the order.
“If they don’t,” Ms. Hays said, “then
we’re done. The children could be
returned as soon as next week, or not
depending on what happens with the high
court.”
The case began on April 3, when Texas
investigators, saying they were
responding to a girl’s call for help,
raided the 1,691-acre Yearning for Zion
ranch of the Fundamentalist Church of
Jesus Christ of Latter-day Saints in
Eldorado, about 45 miles south of San
Angelo.
The caller was never found, and
investigators now suspect that the call
was a hoax.
The polygamous sect broke away from the
Mormon church decades ago over the
Mormons’ condemnation of plural marriage
and began building its secluded compound
in Eldorado in 2003.
The sect’s leader, Warren Jeffs, was
sentenced last November in Utah to 10
years to life in prison for forcing a
14-year-old girl to marry her
19-year-old cousin and to submit to
sexual relations against her will,
In a statement after the ruling on
Thursday, the Department of Family and
Protective Services said: “Child
Protective Services has one duty: to
protect children. When we see evidence
that children have been sexually abused
and remain at risk of further abuse, we
will act.”
The agency said it removed the children
“after finding a pervasive pattern of
sexual abuse that puts every child at
the ranch at risk.” The officials said
interviews “revealed a pattern of
under-age girls being ‘spiritually
united’ with older men and having
children with the men.”
“We will work with the Office of
Attorney General to determine the
state’s next steps in this case,” the
department said.
The appeals judges who ruled, Chief
Justice W. Kenneth Law and Justices
Robert. H. Pemberton and Alan Waldrop,
all Republicans, said removing children
from their homes was “an extreme
measure” justifiable only in the event
of urgent or immediate danger.
Instead, the court said, the state
argued that the “belief system” at the
ranch condoned under-age marriage and
pregnancy and that the whole ranch
functioned as a “household” in which
sexual abuse anywhere threatened
children in the entire community.
But in reality, the judges said, there
was no evidence of widespread abuse, and
they faulted the district judge, Barbara
Walther, for approving the children’s
removal based on insufficient grounds.
David Schenck, a Dallas lawyer who
represented one mother, Marie Steed,
said that the appeals court had asked
the state to respond to the women’s
motion by last Monday and that the state
had asked for more time.
“This was the court’s answer,” Mr.
Schenck said.
The ruling was hailed by the Liberty
Legal Institute, which litigates cases
of religious freedom.
“One message from this decision is
clear,” the group said. “The rights of
every Texas parent will be taken
seriously, no matter who you are.”
Jim Cohen, a law professor at Fordham
University, said it was highly unusual
for an appeals court to intervene in a
continuing case, especially one
involving child protection.
“It showed the proof was really weak,
not a close call at all,” Professor
Cohen said.
Tim Edwards, a lawyer in San Angelo who
represents four mothers, said: “This is
a wonderful day. It confirms not only my
feeling, but the feeling of many, many
attorneys involved in the case, that
Child Protective Services failed to meet
their burden of proof to justify a court
order to remove more than 400 children
from their homes for the last six or
seven weeks.”
Mr. Edwards said even if the children
went home soon, the effects were likely
to linger.
“You’re talking about a situation that
is traumatic to many people,” he said,
“and the recovery from that trauma may
be slow in coming.”
Cynthia Martinez, a spokeswoman for
Texas RioGrande Legal Aid, which
represents many of the women, said
sentiments varied. Many mothers, Ms.
Martinez said, voiced “a general concern
that the ranch had lost its purpose
because the mothers and children’s last
memory is of the ranch being raided, and
that is a huge concern for a lot of
these parents.”
Ms. Hays said she was surprised by the
judges, whom she described as among the
most conservative on the court. “This
ruling restored my faith in the rule of
law,” she said. “This is an opinion
based on law and not politics.”
Laura Nugent, a lawyer in Austin who
represents four of the children, said
she was thrilled. “I feel this is the
correct way to rule on the evidence,”
Ms. Nugent said. “I felt all along that
the department did not bear their burden
of proof.”
Ms. Nugent, whose clients are 6, 10, 11
and 12, said she was unsure whether the
ruling applied to all the children she
represented and was awaiting details.
“They all want to go home,” she said.
“They are emphatic that they want to go
home and be reunited with their parents
and their siblings.”
It was not the first time a raid on
polygamists may have backfired. In 1953
Arizona authorities under Gov. Howard
Pyle raided the fundamentalist community
of Short Creek, which is now Colorado
City, Ariz., and Hildale, Utah, taking
about 160 children into state custody.
But the custody ruling was overturned on
appeal in 1955 after lawyers for the
children argued that they were denied
adequate legal representation. Most of
the women and children then returned to
Short Creek to join their husbands, who
had pleaded guilty to misdemeanor
conspiracy to commit unlawful
cohabitation and were sentenced to one
year on probation. Governor Pyle lost
the 1954 election.
Mohave County Judge J.W. Faulkner later
said he made a legal “blunder” during
the custody hearings, writing after his
retirement in 1955 that the reversal
“will inevitably give new life to the
cause of polygamy, and prolonging the
fight for another 50 years.”
Reporting was contributed by John
Dougherty in Las Vegas, Dan Frosch in
Denver and Gretel C. Kovach in Dallas. |
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