May 2, 2008
by John Moritz & Bill Hanna | staff writers
AUSTIN -- The children taken from the polygamist compound near San Angelo should be returned to the mothers because officials with Child Protective Services failed to prove the youngsters were in imminent danger when they were removed last month, 38 mothers said in new court documents.
The mothers are asking the state's 3rd Court of Appeals in Austin to overturn a ruling last month by state District Judge Barbara Walther that gave the state temporary custody of the 463 children from the Yearning For Zion Ranch in Eldorado. The ranch is operated by the Fundamentalist Church of Jesus Christ of Latter Day Saints, which was raided by authorities in early April amid reports that adult men were entering into multiple marriages with underage girls.
"This case is about whether [CPS] may deprive mothers of possession of their children without evidence that the mothers pose an immediate physical danger to the children," they said in their petition, which was filed late Wednesday.
The 24-page petition says Walther gave too much weight to general testimony from CPS officials that five underage girls were found to be pregnant as justification for removing all the children from the mothers. The petition also claims that assertions by officials that the pregnancies could indicate a potentially dangerous "culture" or "mindset" among residents of the ranch did not meet the legal test of showing imminent danger to the children.
Lawyers for the state had not filed a response to the petition by Thursday afternoon. But officials with CPS and the Texas Department of Family Protective Services, which oversees the agency, have said repeatedly that their actions have always been motivated by the need to shield the children from immediate harm. A hearing on the appeal has not yet been scheduled.
The mothers, who are being represented by Austin-based Texas Rio Grande Legal Aid, said in the court papers that they are not trying to prevent the state's investigation of conditions at the compound. But they said the investigation could continue even if they regain custody of the children.
The compound was raided after an anonymous call was placed to a shelter from a girl claiming to be 16 years old, pregnant and married to a 50-year-old man. It now appears that the initial calls might have been a hoax. A Colorado Springs, Colo., woman, Rozita Swinton, 33, who was arrested for making other prank phone calls, has been listed as a "person of interest" by the Texas Rangers in connection with the YFZ Ranch calls.
Judge's order
Walther issued her order April 18 that the children remain in state custody for 60 days while they and the adults from the compound undergo paternity and maternity testing. The children have been placed in licensed foster care facilities at several locations around the state, and one of the teens in custody gave birth to a boy this week.
The mothers who appealed Walther's order "are not asking to return to life as it was before their children were removed," the petition said. "They are not seeking to stop [the CPS] investigation. They only want possession of their children, subject to any reasonable conditions [CPS] and the trial court wish to impose."
FLDS legal reaction
Rod Parker, the Salt Lake City attorney who represents the FLDS, said he was encouraged by the appeal.
"I thought the issues they raised were right on point," Parker said. "Each parent is supposed to get an individual hearing. It's not due process to have one mass hearing. These children are entitled to be evaluated on their own."
Parker said the FLDS is continuing to pursue legal options, including taking the case to federal court.
"The main focus right now is getting these kids reunited with their parents. I think the primary focus right now seems to be the amended petition filed [Wednesday] with the 3rd Court of Appeals. That seems to be the case that furthest along at this point," Parker said.
FLDS background
The FLDS splintered from the Mormon Church when the latter rejected polygamy in 1890. Most of the FLDS church's estimated 10,000 members live in the twin towns of Colorado City, Ariz., and Hildale, Utah.
The group's prophet and leader, Warren Jeffs, has been sentenced to two terms of five years to life in prison in Utah for forcing an underage girl to marry an older cousin.
Liberty Legal Institute involvement
The mothers also picked up the assistance of the conservative Liberty Legal Institute, which filed a friend-of-the-court brief saying the trial court judge overreached when she ordered the children separated from the mothers.
The institute, which calls itself an advocacy group for religious freedom and parental rights in Texas, urged the appeals court "to apply a standard of strict scrutiny" on the state before interfering with the parent-child relationship.
"The key for the court is to follow the proper procedure and protect the rights of all parents in the process," said Kelly Shackelford, the institute's top lawyer. "Otherwise, every Texan loses their freedoms, and the standard of protection is lowered for everyone."
This article was found at:
http://www.star-telegram.com/state_news/story/618683.html
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