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Sect's Children Taken Illegally, Court Rules

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By RALPH BLUMENTHAL

The New York Times

Published: May 23, 2008

Updated: 05/23/2008 12:23 am

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 U.S. history into turmoil.

The appeals court revoked the state's custody over the children of 38 mothers for what it called a lack of evidence that they were in immediate danger of sexual or physical abuse.

The unanimous ruling by three judges of the 3rd Court of Appeals in Austin said that the evidence of danger to the children "was legally and factually insufficient" to justify their removal.

The ruling said that the lower court had "abused its discretion" in failing to return children to their families.

The decision was handed down on the lawsuit of the 38 women who challenged the custody 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.

Although the court did not order the children's immediate release, it raised the prospect of many of them being reunited with their families. The state has 10 days to appeal the ruling.

The children have been in foster homes scattered across Texas since early April, with their parents having to travel hundreds of miles to visit them.

Officials of the Texas 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.

"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 in a statement.

One mother, Martha Emack, 23, said she was "totally thrilled" by the ruling. "Everyone is totally overjoyed to tears," she said.

She said both of her children had been seized; one just turned a year old and the other is 2. "It's been very emotional, very traumatizing," she said.

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."

Susan Hays, a lawyer in Dallas who specializes in appellate law and who is attorney ad litem 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," Hays said. "It technically does not apply to all the women's children. But practically it does."

She said the state would have to quickly file a motion that asks the court to stay the order.

"If they don't," Hays said, "then we're done. The children could be returned as soon as next week."

The case began April 3, when Texas investigators, saying they were responding to a girl's call for help, raided the Yearning for Zion Ranch of the Fundamentalist Church of Jesus Christ of Latter-day Saints in Eldorado, about 45 miles south of San Angelo.

Followers of Warren Jeffs, the polygamous sect broke away from the Mormon church decades ago over the Mormons' condemnation of plural marriage. The caller was never found, and investigators now suspect that the call was a hoax.

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.

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 appeals judges, 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 underage 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 District Court Judge Barbara Walther for approving the children's removal based on insufficient evidence.

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