Friday, May 23, 2008

Oh my!

More bad news for the State in this matter.

The Third Court of Appeals found no justification for the Judge in San Angelo to have ordered the children taken by CPS from the Yearning from Zion Ranch to be placed in foster homes. Further news is that the State appealed San Antonio District Court Judge Michael Peden's decision to award temporary custody and then apparently hold a full custody hearing regarding the children of one of the FLDS families to the Fourth Court of Appeals which denied the State's request to stay the hearing.

As I predicted earlier this was not going to go well for the State of Texas. If nothing else it makes the State and particularly CPS look bad in being overzealous while having no legal basis to do what it did. It will probably lead to law suits against the State, no prediction on how those would go, and ultimately harm CPS's effectiveness in the future when "real" danger to children might be detected because of people becoming "gun shy" and less likely to "pull the trigger" to seek removing children from a problematic family situation.

On to the Texas Supreme Court is next on the agenda.

Court says state didn't prove sect children in danger
By Lisa Sandberg and Terri Langford: Express-News

SAN ANGELO — An appeals court ruled Thursday that the state had no right to seize hundreds of children from a polygamous religious sect because it failed to prove they were in immediate danger of abuse.

The decision halted ongoing custody hearings and raised the possibility of family reunions.

The 3rd Court of Appeals in Austin ruled a San Angelo judge exceeded her authority in ordering into foster care every child residing at the Yearning for Zion Ranch, not just the teen girls who Texas Child Protective Services said were at risk of being married to older men.

“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,” the order by a three-judge panel of the appeals court said in part. About half of the more than 460 children placed in protective custody were babies or toddlers.

The decision was greeted with jubilation among parents who happened to be at a San Angelo courthouse for their children's status hearings, which were immediately placed on hold.

The ruling

• IT SAYS: The state didn't prove all the children it took from a polygamist sect's ranch were in imminent danger of abuse.
• IMMEDIATE EFFECT: Ongoing custody hearings halted, other court pleadings by sect parents bolstered.
• WHAT'S NEXT: The state could appeal, or the order removing the children could be narrowed to apply only to girls who have reached puberty.
“Hurray. Praise the Lord!” said Sarah Barlow, 45, the mother of two children in foster care. “We're grateful for this.”

Texas Rio Grande Legal Aid Attorney Julie Balovich, whose organization filed the appeal, said it was “about time a court stood up and said that what was happening to these families is wrong.”
But it wasn't immediately clear how soon the children, now scattered in foster care across the state, might return to the custody of their parents, followers of a breakaway Mormon sect known as the Fundamentalist Church of Jesus Christ of Latter Day Saints.
The ruling orders state District Judge Barbara Walther, who approved the mass removal from parental custody, to rescind her order.

If the state appeals the ruling to the full appellate court or the Texas Supreme Court, the children could remain in state custody until it's resolved, legal experts said.

Officials showed little eagerness Thursday to discuss their next step.

Child Protective Services issued a statement saying it would work with the Texas attorney general's office. A spokesman for the office, Jerry Strickland, said his agency so far wasn't involved in the case.

Though the suit was filed on behalf of 48 mothers seeking the return of their children, legal experts said it likely would apply to other parents in similar circumstances. Rod Parker, a spokesman for the sect, said he expected attorneys for other parents to file paperwork this week to ensure they “get the benefits of this ruling.”

The 3rd Court ruled the same way Thursday in a separate case involving three FLDS mothers — a mother of daughters, one with sons and one who gave birth last week and was alleged to be an underage pregnant mom, but whose lawyer says actually is 22.

“I think it's going to be hard to say the proof-problem that the state ran into here wouldn't be applicable to (all the parents whose children were taken into state custody),” said Dallas lawyer David Schenck, representing the three.

Schenck said he expected parents and children to be reunited “pretty quickly,” adding, “I think it's going to focus CPS' investigation more narrowly on the circumstances where there's actual evidence a particular child is at risk with respect to a particular set of parents.”
Observers said it was possible that Walther could amend her original order, possibly to ensure that post-pubescent girls remain in state care.

“The order might leave room for some tailoring in special circumstances,” said Scott McCown, a former judge who now heads the Center for Public Policy Priorities in Austin.
The appeals court ruling was a bitter blow to Child Protective Services, whose investigators accompanied law officers on a weeklong raid and search of the ranch outside Eldorado beginning April 3.

The raid was based on calls placed to a San Angelo domestic violence center by someone who identified herself as a 16-year-old mother and abuse victim at the ranch. The caller now is believed to have been a 33-year-old woman in Colorado with a criminal history involving making false reports.

CPS experts, at a two-day hearing before Walther last month, argued that the FLDS had a “pervasive belief system” that groomed boys to become sexual predators when they reached adulthood and taught girls to submit to underage marriage when they reached puberty.

The appeals court said the state needed more than that to remove children from parents.
“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,” it said in part.

“Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the department contends, there is no evidence that this danger is ‘immediate' or ‘urgent' ... with respect to every child in the community.”

McCown said the appeals court didn't say children could not be removed from their families, only that Walther had overstepped her authority with an emergency order.

If the children are returned to their parents there's a risk they'll be moved to another state, Canada or Mexico and be outside the reach of Texas law, he said.

“One of the real dangers is flight, and the court doesn't address that at all,” McCown said.
As they absorbed the ruling on the lawn of the Tom Green County Courthouse in San Angelo, several mothers said they were uncertain about their next move.

Parker, the FLDS spokesman, called the decision wonderful and said he expected sect members to gather at the ranch late Thursday and predicted a mood different from a day earlier, when two CPS officials arrived at the front gate seeking a half-dozen other children they believed were being sheltered there.

The ranch residents wouldn't allow them to enter without a search warrant.

In San Antonio, lawyers for an FLDS couple, Joseph and Lori Jessop, who won temporary daily visits with their children last week and a full custody hearing today in a Bexar County civil district court, will use the appellate decision to bolster their argument that the state must return the three children.

“The 3rd Court has said that we were right all along,” said Rene Haas, the Corpus Christi lawyer representing the Jessops.

Lori Jessop had been allowed to spend days with her nursing infant but had been told by CPS workers, she said, that when he turned 1 year old he would be put in foster care like her two other children, ages 2 and 4 years.

On Thursday, the Texas Department of Family and Protective Services asked the 4th Court of Appeals in San Antonio to stop Jessop's custody hearing, filing written arguments that state District Judge Michael Peden exceeded his authority and that “it would not be in the children's best interest to be torn between two courts rendering opposite decisions which would have to be addressed in further appeals.” A three-judge panel denied the state's request.

“We went to CPS today and said, ‘Give us back our children,' and they said no,” Haas said.