By Robert T. Garrett and Emily Ramshaw
Dallas Morning News
May 30, 2008
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/
DN-polygamists_30tex.ART0.State.Edition1.46ced31.html
AUSTIN Children removed from a West Texas polygamist ranch could be heading home within days, after Texas' highest court ruled against the state in a massive child custody case Thursday.
The Texas Supreme Court said in an unsigned opinion that Child Protective Services' removal of children was "not warranted." It left intact an appellate court's finding that CPS hadn't proved the children were in immediate danger and failed to fully explore alternatives to removing them. The appellate court had ordered Judge Barbara Walther of San Angelo to vacate her orders putting sect children in CPS custody.
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| An attorney said Yearning for Zion parents like Martha Emack will press a judge to quickly vacate an order keeping the children from the polygamist sect in state custody. Photo by Harry Cabluck / The Associated Press |
The Supreme Court said that Judge Walther still has tools at her disposal to protect kids, even if she releases all of the more than 450 children.
The high court pointed to laws allowing her to issue orders to prohibit a child from being removed from a specific geographic area and force "removal of an alleged perpetrator from the child's home." It noted that under a 2005 law overhauling CPS, interfering with one of its child-abuse investigations could bring up to six months in jail.
Meanwhile, Texas' criminal investigation into the polygamist sect took a step forward Thursday, as investigators from the state attorney general's office traveled to an Arizona jail to obtain DNA samples from Warren Jeffs, prophet and leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
On the child welfare raid, the Supreme Court the highest in the state for civil matters sided with the sect and the Austin-based 3rd Court of Appeals against CPS. The often-criticized agency absorbed yet another stinging rebuke of its handling of the case.
The practical effect is that CPS now probably must release most if not all of the children it took into custody eight weeks ago. It was unclear, though, when and exactly how Judge Walther would comply with the orders from the higher courts.
Sect attorney Rod Parker said parents from the Yearning for Zion ranch in Eldorado are eager to go to shelters across the state and pick up their children. He said that although the sect parents know they must wait a while longer, they will urge Judge Walther to vacate her orders this morning so they can fetch their youngsters.
"The ranch is home. That's where they want to go," Mr. Parker said.
He said he expects the state's investigation to continue in some form, even after the children are returned home.
Sect elder and spokesman Willie Jessop said he expected sect members to do everything asked of them to bring the children home.
"Give us an opportunity," he said.
CPS spokesman Patrick Crimmins said the agency, while disappointed by the court ruling, would "respect the court's decision and will take immediate steps to comply."
Mr. Crimmins said that CPS "has one purpose in this case to protect children" and that the agency would work with Judge Walther to both obey higher courts and "ensure the safety" of youth from the ranch.
"We will consider any safe and practical option to reunite the families, including transporting the children back to the ranch," Mr. Crimmins said.
He wouldn't say if CPS would ask Judge Walther to delay releasing a few children until it receives lab results of DNA tests given to many sect parents; or put restrictions on certain families, such as orders banning movement of the children. State lawyers had said in court briefs that there is a high risk the families would flee the state.
"It's too early to tell exactly what our specific next step will be," Mr. Crimmins said.
As the removals were appealed, CPS insisted it has "uncontroverted" evidence that young girls are being forced into sexual relationships and "spiritual marriages" with adult men.
However, the Supreme Court left unchanged last week's unanimous ruling by a three-judge panel of the appeals court. It found "there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation" that the sect "condoned underage marriage and sex."
All nine Supreme Court justices agreed that CPS overstepped its authority by taking into custody all boys living at the ranch and even girls who haven't reached puberty. The 3rd Court of Appeals said there was no credible evidence that boys or any of the younger girls were at risk of maltreatment.
But Justice Harriet O'Neill, in a separate opinion joined by Justices Phil Johnson and Don Willett, said Judge Walther was correct to let CPS take "pubescent girls" into custody because they were at risk of being sexually abused.
Still, the three justices said the trial judge's decision to keep the other children in state custody was wrong because of CPS' "failure to seek less-intrusive alternatives to taking custody of the children: namely seeking restraining orders against alleged perpetrators ... or other temporary orders."
While the appellate court chastised Judge Walther solely for abusing her discretion with her April 21 decision to keep the children in CPS custody, the Supreme Court went even further: It criticized CPS' mass removal of them. Even attorneys for mothers who brought the case had said in briefs that they didn't question that CPS acted in good faith in the investigation's early phase.
However, the high court said, "Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals' decision. On the record before us, removal of the children was not warranted."
"It's great to see that the court system is working," said Kevin Dietz, a lawyer with Austin-based Texas RioGrande Legal Aid, which represented one of two groups of sect mothers who petitioned to regain custody of their children. Only about 40 of the 140 mothers affected by the raid joined the suit, but the others are expected to demand their children also be released.
Also Thursday, in Kingman, Ariz., police Sgt. Rusty Cooper confirmed that officers there helped Texas authorities serve a search warrant on Mr. Jeffs, who was convicted in Utah for pressing a minor girl into a "spiritual marriage" and is jailed on similar charges in Arizona.
In the warrant, authorities allege the sect's leader, Mr. Jeffs, has sexually assaulted at least one minor girl at the Texas ranch. They say they have the records and photographs to prove Mr. Jeffs married a 14-year-old girl in 2004 and fathered her child the next year.
The DNA samples will help determine "whether Warren Jeffs is the parent of any children born to underage mothers, and thereby establish whether Warren Jeffs sexually assaulted those children by virtue of their age at the time the child was conceived," the warrant states.
The warrant also alleges Mr. Jeffs married a 12-year-old girl at the ranch in 2006, and that photos show them embraced in a kiss. Texas CPS attorneys introduced into evidence those photographs at a sect infant's custody hearing last week.
According to the warrant, other records obtained during Texas' April raid of the compound indicate Mr. Jeffs may have married two others girls at the ranch, both under the age of 15.
The Texas attorney general's office declined to comment on the search warrant.
rtgarrett@dallasnews.com;
eramshaw@dallasnews.com
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