The FLDS children in
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
since early April, making their parents travel hundreds of miles to visit them. Texas
I had doubts from the start that sweeping up all the children in a community, separating them from their siblings, and throwing them into foster care was in the best interests of the children in every case. There has been evidence of abuses, and young teenagers shouldn’t be permitted to be married off to old men by their parents, but there are better ways to police the situation than raiding the community and taking away all the kids.
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 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.
. . .
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
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.” San Angelo
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.”
. . .
Laura Nugent, a lawyer in
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.” Austin
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.”
Which raises a question: everybody seems to “know” what is best for children of this age, but did anyone think to ask the children themselves? Presumably they should at least have their opinions about where and with whom they want to grow up heard.
It was not the first time a raid on polygamists may have backfired. In 1953
Arizonaauthorities under Gov. Howard Pyle raided the fundamentalist community of Short Creek, which is now Colorado City, Ariz., and , taking about 160 children into state custody. Hildale, Utah
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."