Children of polygamists may be released soon

HOUSTON — The largest custody case in U.S. history was thrown into turmoil Thursday when a Texas appeals court ruled that the state had illegally seized up to 468 children from their homes at a polygamist sect's ranch in West Texas.

Although the court did not order the children's immediate release, it raised the prospect of many of them being reunited with their families, possibly within 10 days.

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

The mere existence of a belief system that may condone polygamy and "spiritual marriages" involving underage girls is not by itself enough evidence to justify the removal the children, said a three-judge panel of the Austin-based 3rd Court of Appeals.

Officials with the Texas Department of Family and Protective Services, which led the raid on the ranch, defended their actions as being taken in the children's interest and said they were considering their next steps. The state has 10 days to appeal the ruling.

The ruling in Austin revoked the state's custody over the children of 38 mothers and, by extension, almost certainly the rest, for what it called a lack of evidence that they were in immediate danger of sexual or physical abuse.

The decision was another setback for Texas officials, who in recent days have conceded that at least 15 of the young mothers the state initially had detained as child brides are adults. One turned out to be 27 years old.

Texas officials have maintained that they were legally compelled to remove all the children from the Yearning for Zion Ranch in Eldorado because their investigation uncovered widespread evidence of children being sexually abused and of teenage girls, some visibly pregnant, who were in polygamous marriages with older men.

But members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), a 10,000-member sect that split from the mainstream Mormon church after it banned polygamy in 1890, have strongly denied state claims that all children were in danger of abuse in the compound's communal dormitories.

Meanwhile, FLDS members and their lawyers exulted.

"It's just the most unbelievable," sect spokesman Willie Jessop said, his voice breaking with emotion.

While sect members "are elated," Jessop said there "won't be any celebration until little children are hugging their parents."

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

She said both 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.

Asked whether she wanted to return to the ranch with her children, Emack said, "I do want to go back."

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."

It said the evidence of danger to the children "was legally and factually insufficient" to justify their removal and that the lower court had "abused its discretion" in failing to return children to their families.

The ruling, an unusual mandamus opinion granting relief in a case not yet decided, was handed down on the application 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 also apply to the rest of the children.

Custody hearings under way before five judges in San Angelo were canceled.

Susan Hays, a Dallas lawyer who specializes in appellate law and is representing 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 for emergency release that asks the court to stay the order.

"If they don't, then we're done," Hays said. "The children could be returned as soon as next week, or not, depending on what happens with the high court."

The case began April 3, when investigators, saying they were responding to a girl's call for help, raided the 1,691-acre ranch in Eldorado, about 45 miles south of San Angelo.

The caller never was found, and investigators suspect the call was a hoax.

Warren Jeffs is the sect's current leader. He was sentenced in 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. His sect teaches that polygamy brings glorification in heaven.

After the ruling, the Department of Family and Protective Services said: "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 it removed the children "after finding a pervasive pattern of sexual abuse that puts every child at the ranch at risk."

The officials said interviews "revealed a pattern of underage girls being 'spiritually united' with older men and having children with the men."

"We will work with the Office of Attorney General to determine the state's next steps in this case," the department said.

The appeals judges who ruled, Chief Justice W. Kenneth Law and justices Robert 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.

In reality, the judges said, there was no evidence of widespread abuse, and they faulted the district judge, Barbara Walther, for approving the children's removal based on insufficient evidence.

The judges also said the state presented no evidence that sect boys or the group's girls who have not reached puberty were victims of sexual or physical abuse, or likely to be.

Jim Cohen, a law professor at Fordham University in New York, said it was highly unusual for an appeals court to intervene in such a case.

"It showed the proof was really weak, not a close call at all," Cohen said.

Cynthia Martinez, a spokeswoman for Texas RioGrande Legal Aid, which represented many of the women, said sentiments varied. Many mothers, Martinez said, voiced "a general concern that the ranch had lost its purpose because the last memory of the mothers and children is of the ranch being raided, and that is a huge concern for a lot of these parents."

Hays said she was pleasantly surprised by the ruling, which was handed down by three appellate judges that she described as among the most conservative of their peers.

"This ruling restored my faith in the rule of law," she said. "This is an opinion based on law and not politics."

Material from The Dallas Morning News and the Los Angeles Times is included in this report.