Court Says Texas Illegally Seized Sect’s Children

May 23, 2008

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.