Texas Supreme Court rules state overreached in polygamy case

AUSTIN, Texas — In a stinging rebuke to the agency charged with protecting youngsters, the Texas Supreme Court on Thursday ruled that Child Protective Services overreached its authority when it seized more than 460 youngsters from a polygamist outpost near Eldorado last month.

The much-awaited ruling chides the agency for failing to pursue less drastic remedies to ensure that the children at the YFZ (Yearning For Zion) Ranch were not being subjected to what state welfare officials described as a culture of sexual abuse that dates back several generations within the Fundamental Church of Jesus Christ of Latter Day Saints (FLDS).

"On the record before us, removal of the children was not warranted," the Texas justices wrote in the ruling. "The Department (CPS) argues without explanation that (returning the children to their families) leaves the Department unable to protect the children's safety, but the Family Code gives (the state) broad authority to protect children short of separating them from their families and placing them in foster care."

The ruling gave no firm timetable to begin sending the youngsters home, the Department of Family Protective Services, which oversees CPS, promised to take "take immediate steps to comply" with the court's ruling.

"Child Protective Services has one purpose in this case — to protect the children," the agency said in an unsigned statement. "Our goal is to reunite families whenever we can do so 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."

A lawyer for the legal aid organization that led the court challenge to the wholesale roundup of all of the children at the compound, said any foot-dragging on the agency’s part would be unacceptable.

"CPS should be ready now to send these kids back to their mothers," David Hall, who heads Texas Rio Grande Legal Aid, said at a hastily arranged news conference outside the Supreme Court Building near the Texas Capitol.

Also at the event was Martha Emack, a member of the sect who was visiting her two children at a foster care center in Austin when word of the court's ruling was announced. She appeared to hold her emotions in check as a crowd of reporters asked for her reaction.

"I'm happy as soon as all the children are back to their mothers and we're home," said Emack, the mother of a 1-year-old and a 2-year-old.


Child welfare officials and law enforcement officers moved on the Schleicher County ranch on April 3 after receiving a tip from someone claiming to be a pregnant 16-year-old forced into a marriage with an abusive 50-year-old member of the sect. Officials were unable to identify the tipster even after they removed the children, and now believe they may have been duped.

State District Judge Barbara Walther of San Angelo later awarded the state temporary custody of the children based on testimony that the sect's culture of polygamy and underage marriage put them in imminent danger of abuse.

The FLDS broke away from the Mormon Church after the latter renounced polygamy in 1890. The FLDS, believed to number as many as 10,000 followers, has historically been based in the twin towns of Colorado City, Ariz., and Hildale, Utah.

The sect purchased the 1,961-acre YFZ Ranch in 2003 and embarked on an ambitious construction program that included dozens of residential buildings and a massive white limestone temple that towered over the rural area about 4 miles from the small town of Eldorado. About 700 people are believed to have been living at the compound before the raid.

After the raid, Texas Rio Grande Legal Aid stepped in to represent 48 women from the sect, and 38 of them were part of the lawsuit seeking to regain custody of about 125 children. The state's Third Court of Appeals sided with the mothers and ordered Walther to vacate her original ruling.

The state appealed to the Texas Supreme Court last week.


The lawsuit actually only applies to the 38 mothers named in the legal action and their children, but lawyers expect the ruling to cover everyone from the FLDS.

Also, assigning an exact number to the children in custody has proven elusive in the weeks since the raid on the ranch. Many sect members originally thought to be children have been reclassified as adults, and at least two babies have been born to sect members who have been placed in foster care.

Officials now believe that the number of minors under state care is about 430. While the children were in temporary custody in San Angelo, CPS workers said that the children and parents were purposefully misleading about parentage of many of the youngsters. Walther then ordered all ranch residents to submit to DNA tests. Those results are not expected to be completed for several weeks.


Hall and other lawyers representing FLDS family members have argued in court filings and through news reporters that the state was treating everyone at the ranch as a group, suggesting that a small number of allegations of abuse were being used to justify punishing everyone for their religious beliefs.

"CPS has got to quit treating this as a crowd," Hall said. "They’ve got to be treated as individuals."

In their ruling, the Supreme Court appeared to agree. In a passage interpreted as a guide to Walther when the case returns to her court, the justices said suspected abusers could be ordered to stay clear of children or even be ordered to move away from the ranch.

The justices also rejected assertions by CPS that sect families might flee the state if they regained custody of their children, pointing out that they could be served with restraining orders preventing such actions.


Although the unsigned ruling from the Supreme Court was handed down without a formal vote of the nine justices, three of them joined in issuing an opinion agreeing with parts of the order and disagreeing with others.

Justices Harriet O’Neill, Phil Johnson and Don Willett said they did not believe CPS had abused its authority in taking the children. But they did agree that the agency failed to present evidence that all of the youngsters were in imminent danger.