Court drama set in Texas battle over polygamists' children

AUSTIN — The Texas agency that seized more than 460 children from the West Texas ranch of a polygamist sect should be allowed to retain custody of them because returning them to their parents might lead to further abuse, the agency said Friday in an emergency appeal to the Texas Supreme Court.

The petition by Texas' Children Protective Services came one day after an appeals court ruled that CPS had overreached its authority when it rounded up the children and that a district court in San Angelo had erred when it awarded the state temporary custody. The appeals court said the state had not adequately demonstrated that the youngsters were in immediate peril.

The state's request came on the same day a district court in San Antonio ordered that 12 children taken from the ranch be allowed to return to their families.

Teresa Kelly, a spokeswoman for the parents' lawyer, told the Associated Press that CPS agreed to allow the parents to live with their children in the San Antonio area under state supervision. It's unclear how many families are involved.

In the filing to the Supreme Court, lawyers for CPS argued that sending the children back to the ranch near Eldorado operated by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) would be irresponsible.

"The Department is not in a position to properly identify the correct mothers or fathers at this time, because maternity and paternity testing ordered by (the district court), has not been completed,' lawyers for CPS said in the petition.

The nine-member Supreme Court did not immediately rule on the petition, but a court spokesman said such matters are generally dealt with swiftly.

In their response to the state's request on Friday, lawyers representing a group of parents from the ranch asked the Supreme Court to uphold the appeals court ruling and suggested that CPS was playing fast and loose with the facts.

"The Department’s profession of ignorance regarding the children's parentage is refuted by its own conduct at the (lower court) hearing," the lawyers wrote. "It is undisputed that the Department has allowed these mothers to visit their children."

For their part, the state’s lawyers held steadfast to CPS's claim that children at the ranch were in imminent danger because of the propensity for older men to take multiple wives of all ages and for young boys to be groomed to perpetuate the lifestyle.

"This case is about adult men commanding sex from underage children; about women knowingly condoning and allowing sexual abuse of underage children; about the need for the department to take action under difficult, time-sensitive and unprecedented circumstances," the state’s lawyers wrote.

After receiving state's appeal on Friday, the Supreme Court requested all documents related to the case that are filed with the lower courts and the justices would likely review them over the holiday weekend, said Osler McCarthy, the court’s attorney for public information.

Meanwhile, the five judges in San Angelo who had been holding hearings on what the parents must do to regain custody of their children have suspended those hearings pending action from the higher court.

Allison Palmer, assistant district attorney for the district that includes Schleicher and Tom Green counties, said it may be some time before criminal indictments are returned by a grand jury and she didn't rule out involvement by federal authorities who issued their own search warrant following the April 3 raid.

"We’re going to take our time with this investigation," Palmer said. "The federal government did run a search warrant at the same time as we served our second warrant. I'm always comfortable working with the federal government as a prosecution team in these cases."

But former Dallas County prosecutor Dan Hagood, who's served as special prosecutor in previous controversial cases, said the appeals court decision should cause investigators to move cautiously.

"Does it stop them? No," Hagood said. "Would it give you pause? Sure. The devil is in the details. You don’t make a decision of this magnitude on guilt by association theory. Remember, the prosecutors are going to have a higher burden of proof in this case than in civil court."

The children were placed in state custody after officials received a call from a girl claiming to be 16, pregnant and married to an abusive older man from the YFZ (Yearning For Zion) Ranch near Eldorado. Officials now suspect that the call was a hoax. But the district court ruled last month that the state should keep temporary custody at least while the investigation into conditions at the compound are investigated.

The FDLS broke away from the Mormon Church when the latter rejected polygamy in 1890. FDLS members have historically been based in Colorado City, Ariz., and Hildale, Utah where an estimated 10,000 members live. The sect bought the YFZ Ranch in 2003 and constructed a sprawling compound where an estimated 700 people lived before the state raided the ranch on April 3 and began removing the children.

Fort Worth Star-Telegram staff writer Bill Hanna contributed to this report.