The state agreed Friday to temporarily reunite a dozen youngsters with their parents in San Antonio but fought to keep hundreds more in foster care while the Texas Supreme Court decides if they were properly removed from their families.
The state appealed a decision Thursday by the 3rd Court of Appeals in Austin that ruled a state district judge in San Angelo had exceeded her authority in allowing the state to take more than 460 children from parents who lived on the Yearning for Zion Ranch outside Eldorado, run by a breakaway Mormon sect called the Fundamentalist Church of Jesus Christ of Latter Day Saints.
In their appeal, lawyers for the Texas Department of Family and Protective Services asked the Supreme Court for an emergency order to allow it to keep the children in state care.
The motion said that if the appellate court decision is allowed to stand, the state will be forced to return children "to persons and an environment where two days of testimony ... clearly established that the practice of forcing underage girls into marriages and resulting sexual relationships ... with older male adults was an institutional practice."
"This would subject the children to continuing sexual and emotional abuse," said state's motion said.
Lawyers for parents have been fighting for their children in custody hearings in San Angelo, which were suspended by the appeals court order, and in individual cases filed in cities where the children were placed in foster care facilities.
In San Antonio, the state agreed to temporarily reunite 12 children with their parents. Attorneys for the three families agreed to delay a custody hearing until June 9.
The ruling did not affect other sect families and appeared to be a holding action after the state failed in attempts to move the jurisdiction of the cases out of Bexar County courts and back to San Angelo.
"This is the first time that a child can go home with their parents," said lawyer Rene Haas of Corpus Christi of her clients, Joseph Jessop Sr. and Lori Jessop, whose three children were in foster care.
The state agreed to a similar arrangement with Rulon Keate and LeLand Keate, sect fathers who were to be reunited with their nine children, pending a full hearing.
"All I can say is, we're very happy that our parents have been reunited with their children," said lawyer Gerald Goldstein, representing the Keates.
The agreement came after almost a full day of negotiations while supportive FLDS members waited in the crowded courthouse halls with everyone else who had business in Bexar County's civil courts. Sect members beamed at the announced compromise, but had little to say.
But the Jessops' attorneys said they had to argue for an hour and a half late Friday afternoon for the release of two of their children when Child Protective Services officials balked at releasing them and even said they couldn't confirm their whereabouts.
"I just took this little family law case pro bono because I was bored," Haas said. "I'm not bored any more, but I'm scared."
With the children from the two Keate families scattered in several foster care facilities, it was unclear late Friday how quickly they would be reunited with their parents or if CPS would pose the same last-minute objections to carrying out the order, signed by state District Judge Martha Tanner.
In ruling Thursday that Judge Barbara Walther had exceeded her authority in ordering into foster care every child residing at the ranch not just the teen girls who might be at risk by being married to older men the 3rd Court said the state had not made its case.
"The department (CPS) did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty," the order by a three-judge panel of the appeals court said in part.
About half of the more than 460 children placed in protective custody were babies or toddlers.
The appeals court ruling was a bitter blow to CPS, whose investigators accompanied law officers on a weeklong raid and search of the ranch outside Eldorado beginning April 3.
The raid was based on calls placed to a San Angelo domestic violence center by someone who identified herself as a 16-year-old mother and abuse victim at the ranch. The caller now is thought to have been a hoax.
CPS experts, at a two-day hearing before Walther last month, argued that the FLDS had a "pervasive belief system" that groomed boys to become sexual predators when they reached adulthood and taught girls to submit to underage marriage when they reached puberty.
The state contends Judge Walther didn't abuse her discretion in approving the wholesale removal of all sect children. In its motion to the Supreme Court requesting emergency relief, the state said the effect of the 3rd Court's ruling would be to force the return of approximately 124 children taken from the FLDS ranch to "approximately 34 alleged mothers."
The child welfare agency said it has been unable to accurately identify the children's parents because genetic testing was incomplete and because sect mothers thwarted its attempts to sort out family relationships.
However, attorneys for the mothers called the state's argument "a red herring."
"The Department's profession of ignorance regarding the children's parentage is refuted by its own conduct after the hearing," read their motion.
"It is undisputed that the Department has allowed these mothers to visit their children. It has participated in status hearing with the parents In other words, the matching of children with parents did not become a problem for the Department until a court decided that it had to give the children back," they said in their response.
And although the suit was filed on behalf of 48 mothers seeking the return of their children, experts said it likely would apply to other parents in similar circumstances.
Rod Parker, a spokesman for the sect, said he expected attorneys for other parents to file paperwork this week to ensure they "get the benefits of this ruling."
In a separate case, the 3rd Court ruled the same way Thursday in a matter involving three FLDS mothers one whom gave birth last week and was alleged to be an underage pregnant mom, but whose attorney says actually is 22.
Observers said it was possible that Walther could amend her original order, possibly to ensure that post-pubescent girls remain in state care, to accommodate the 3rd Court ruling.
"The order might leave room for some tailoring in special circumstances," said Scott McCown, a former judge who now heads the Center for Public Policy Priorities in Austin.
He noted that the appeals court didn't say children could not be removed from their families, only that Walther had overstepped her authority with an emergency order.
If the children are returned to their parents there's a risk they'll be moved to another state, Canada or Mexico and be outside the reach of Texas law, he said.
"One of the real dangers is flight, and the court doesn't address that at all," McCown said.
The appeals court said the state needed more than that to remove children from parents.
"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger," it said in part.
"Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the department contends, there is no evidence that this danger is 'immediate' or 'urgent' ... with respect to every child in the community."
Staff writer Lisa Sandberg contributed from San Angelo. Staff writer Peggy Fikac reported from Austin.
12 sect youths to be reunited with parents for now (w/video) Chron.com - Houston Chronicle
Dont miss the motions that were filed, I think this may have to be the plan in many of our cases.
Petition for writ of mandamus
Motion for emergency relief: