CPS will work toward 'prompt and orderly' reunification
By Ben Winslow, Linda Thomson and Amy Joi O'Donoghue
The Texas Supreme Court has ruled that the removal of FLDS children from the YFZ Ranch was unwarranted — and the decision to take them was an abuse of judicial discretion.
The decision today comes after Texas RioGrande Legal Aid filed a writ of mandamus in the Third Court of Appeals on behalf of 38 mothers.
In its ruling, the high court said that state law gave the lower court broad authority to protect children "short of separating them from their parents and placing them in foster care," including removing alleged perpetrators from a child's home and preventing the removal of a child from the jurisdiction of the investigating agency.
Those options were not embraced, the court said in affirming an appellate court last week, saying Child Protective Services failed to show an immediate danger to the more than 400 children swept up from the Yearning For Zion Ranch nearly two months ago.
"On the record before us, removal of the children was not warranted," the justices said in their ruling issued in Austin, Texas.
Rod Parker, a Salt Lake City attorney acting as a spokesman for the FLDS, said today's ruling is vindication for the FLDS and called on Texas to "lay down arms."
The dissenting opinion, in the nine-member ruling, did say while it agreed the trial court erred in removing boys and pre-pubescent girls from the ranch, it believed teenage girls remain in jeopardy at the YFZ Ranch because of a pattern of sexual abuse.
In a statement made this afternoon, FLDS member Willie Jessop said members were emerging from a nightmare and urged the state of Texas to put the families back together. "I know that there is hope and it will be a great, great day when there are fathers and mothers hugging little children that were ripped away from them."
A spokeswoman for the Texas Department of Family and Protective Services told the Desert News their attorneys were reviewing the case.
"We are disappointed but we understand and respect the court's decision and will take immediate steps to comply," said Marleigh Meisner. "Child protective services has one purpose in this case — to protect the children. Our goal is to reunite families and make sure the children will be safe. We will continue to prepare for the prompt and orderly reunification of these children with their families. We will also work with the district court to ensure the safety of the children and that all of our actions conform with the decision of the Texas Supreme Court."
Lawyers for the mothers said the Supreme Court's ruling still allows child welfare authorities to conduct an investigation but "they have to go about it the correct way," said Cynthia Martinez, with the Texas RioGrande Legal Aid Society. The decision gets the children out of foster care facilities as soon as it can be coordinated with the courts.
Jessop said FLDS members would be willing to cooperate within reason with any child welfare investigation. Contrary to reports by CPS, Jessop said FLDS members tried to cooperate early on in the investigation last March to no avail. Ultimately, the YFZ Ranch was raided by Texas authorities and the 400-plus children were removed and placed into state custody.
"There have been many many allegations and, insinuations. The FLDS people I am acquainted with do not allow their children to be married without at least a legal age. We do not understand where this is coming from," he said.
The decision was lauded by attorneys who filed the appeal of Judge Barbara Walther's decision to allow the state to keep custody following a two-day adversial hearing in April.
"It's great to see that the court system is working in the interest of justice," said Texas RioGrande Legal Aid attorney Kevin Dietz who is leading the group of attorneys working on the case.
The decision gives the mothers new hope that their families will be reunited relatively soon. Although the decision only applies to the 38 mothers named in the case, the decision will likely influence all the families, Dietz said.
"These mothers have never given up their fight to bring their families back together," added Dietz. "TRLA remains dedicated to working with the courts and CPS to do what is in the best interest of these children. Right now, that means reuniting these families."
Walther was not in court this afternoon and any order from her vacating her previous decision could come as early as Friday.
"We are all very very happy with the ruling. It vindicates what we have said from the beginning. The children should never have been taken from their home and families and kept from their families for such a long time," said Rene Haas, an attorney for Joseph and Laurie Jessop, who have three children in state custody. The Jessops struck a deal with CPS that allowed their children to return to them as long as they remained in the San Antonio area.
Haas said she is trying to clarify whether the family needs to move back to the ranch. She said the family has every intention of "continuing to live in peace in Texas which was their hope when they moved here three years ago."
[missing from original article] ordered the children removed from the YFZ Ranch was correct in doing so to protect teenage girls who were in danger of being sexually abused.
The decision does not let the FLDS off the hook, and in a measured and thoughtful dissent, Justice Harriet O'Neill said teenage girls at the YFZ Ranch face the danger of sexual abuse.
While she agreed there was no evidence of imminent danger to the safety of the boys and pre-pubescent girls to justify removal, she said the state agency needed more time to work to protect the ranch's "endangered" population — teenage girls.
For that group, O'Neill argued that the trial court did not abuse its discretion given the obstacles authorities encountered in gathering information.
The dissenting opinion was supported by Justice Phil Johnson and Justice Don R. Willett.
In their dissent, the three justices said evidence was presented that showed:
• Several teenage girls on the ranch were pregnant or had given birth.
• The ranch's religious leader had "unilateral power to decide when and to whom they would be married."
• Documents taken from the ranch showed there were "several extremely young mothers or pregnant 'wives'" on the ranch.
• One expert confirmed that the FLDS Church accepts the age of "physical development" (the start of a monthly cycle for a girl) as the age of eligibility for "marriage."
• A child psychologist testified that pregnancy of underage children at the ranch was the result of sexual abuse because children ages 15, 15 or 16 are "not sufficiently mature to enter a healthy consensual sexual relationship or 'marriage.'
"Evidence presented thus indicated a pattern of practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the ranch — evidence sufficient to satisfy 'a person of ordinary prudence and caution' that other such girls were at risk of sexual abuse as well," the dissenting opinion said.
"This evidence supports the trial court's finding that 'there was a danger to the physical health or safety" of pubescent girls on the ranch," the opinion states.
In addition, the dissenting opinion said that the Department of Family and Protective Services was hampered in its efforts to protect the children through any alternative means other than taking them from the ranch.
The department is required to "make reasonable efforts" to avoid taking custody of endangered children, but department employees found that children on the ranch would not give information about their birth dates, who their parents were, who lived in their homes, and, in several cases, lied repeated.
Parents at the ranch also gave inconsistent information and officials discovered a shredder that had been used to destroy documents just before department officials arrived.
"Thwarted by the resistant behavior of both children and parents on the ranch, the department had limited options," the dissenting opinion said.
The department could not get restraining orders, for example, because it would not know whom to restrain. It also could not prevent certain family members from having access to a child because it could not file a pleading or affidavit, which has to identify the parent and child the department seeks to keep apart.
The three dissenting justices also said that the trial court heard evidence that "the mothers themselves believed that the practice of underage 'marriage' and procreation was not harmful for young girls ..." the opinion said.
The department will not place children back with their parents until it is certain that the parents realize that what happened in the first place hurt the children.
"This is some evidence that the department could not have reasonably sought to maintain custody with the mothers. Thus, evidence presented to the trial court demonstrated that the department took reasonable efforts, consistent with extraordinarily difficult circumstances, to protect the children without taking them into custody," the dissenting opinion said.
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