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Texas' FLDS case rejected: 'Simply no evidence'
This is an archived article that was published on sltrib.com in 2008, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

SAN ANGELO, Texas - Hours after a Texas appeals court ruled their children were wrongly taken from their polygamous sect's ranch, FLDS mothers were not yet ready to celebrate.

That will come, they said, when the children are in their arms.

"I will rejoice completely when I am able to hug my children," said Maggie Jessop, whose four children have been in state custody for more than six weeks.

A pair of rulings issued Thursday by the 3rd Court of Appeals in Austin came unexpectedly in the midst of status hearings on children taken from the YFZ Ranch.

In its unanimous nine-page decision, the three-judge panel said the Department of Family and Protective Services' case was legally and factually insufficient and 51st District Judge Barbara Walther acted improperly when she ordered about 450 children to stay in state custody.

The court said the state failed in a mass April 17-18 hearing to prove any of its key claims that the sect's beliefs, communal households or underage marriages put every child in the community "in urgent" danger.

"There is simply no evidence specific to [the mothers'] children at all except that they exist, they were taken into custody at the Yearning for Zion Ranch, and they are living with people who share a 'pervasive belief system' that condones underage marriage and underage pregnancy," the court said.

It is not yet clear how soon children could return home, a timeline that depends in part on the next move by DFPS.

Hearings were canceled for Thursday afternoon and today, as Walther conferred with the other trial judges considering the cases.

After the ruling, Texas child welfare officials defended their removal of the children from the ranch near Eldorado and contemplated their next move. DFPS issued a statement that recounted why it took custody of the children.

"While our only duty is to the children, we respect that the court's responsibility and view is much broader," it concluded. "We will work with the Office of Attorney General to determine the state's next steps in this case."

If Walther does nothing, the appeals court will order the children returned to their parents, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

DFPS could seek a stay from the Texas Supreme Court or ask the appeals court for a rehearing; it has 15 days to do that.

The order issued Thursday technically applies only to children of the 41 mothers listed in two appeals, one filed by Texas RioGrande Legal Aid (TRLA) and the other by Legal Aid of North Texas.

Julie Balovich, a TRLA attorney, said she believes its legal reasoning applies to all the children. "It's a great day for families in a state of Texas," she said.

She and Amanda Chisholm, also with the firm, were on their way to the ranch to meet with several women when she received word of the decision.

"I just pulled over on the road to Eldorado and started crying," Balovich said.

As Balovich spoke to reporters in San Angelo, FLDS women stood behind her beaming. Some were teary-eyed. "I was very, very, very thrilled and excited," said Martha Emack, 23, one of the mothers listed in the appeal.

Balovich had been scheduled to argue Emack's case today. Emack has been separated from her two children, ages 2 and 1, since April 24. They are in an Austin shelter, where Emack visits them once a week.

"They are very insecure and they want to be held and hugged and loved," she said.

Brigham, her oldest child, was potty-trained before entering state custody but has regressed. When she leaves, he screams. "There wasn't once when I left him he wasn't crying," Emack said.

The FLDS parents who came to the court hearings kept their composure throughout the proceedings. Prayers and faith kept them going, some said.

"We are a peaceful people," Emack said.

Texas officials raided the YFZ Ranch to investigate a later-discounted abuse allegation. Once there, they said they found evidence of a pattern of abuse - such as sex with underage girls - that justified removal of all children.

"The very first interviews at the ranch revealed a pattern of underage girls being 'spiritually united' with older men and having children with the men," their Thursday statement said. Records found at the ranch listed "13 girls who were ages 16 and 17, including nine living at the YFZ Ranch. All nine of the girls living at the ranch were listed as wives in the document."

But the appeals court ruled DFPS failed to provide, as required by Texas law, "any evidence of danger to the physical health or safety" of children on the ranch who had not reached puberty.

The department also did not prove pubescent girls were in physical danger, the judges said.

DFPS officials testified that five girls who became pregnant at ages 15 and 16 - coupled with an FLDS belief system condoning underage marriage and pregnancy - warranted immediate removal. But that simply wasn't enough, the judges said.

"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," the appeals court wrote. "It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger."

Lawyer Nancy DeLong praised the appeal courts' criticism of the en masse hearing in April.

"I think this is a first step toward recognizing the hearing was not done correctly and that there are certain rights parents have," she said. "We're very hopeful the district court will abide by this decision."

Anti-polygamy activists who had hailed the Texas action were subdued Thursday.

"I'm very disappointed and I think we'll wait for the Supreme Court to rule on this," said Flora Jessop, a former member of the sect who has long urged such action against the FLDS.

Utah Attorney General Mark Shurtleff testified before the Texas Legislature in 2005 when it crafted laws targeting the sect. On Thursday, he said that while he supported the state, he felt they were going to have to "prove, on a case-by-case bases, abuse or neglect or imminent danger. Where they were going with this group theory that . . . it's a pervasive practice and therefore we don't need to prove this particular child has been or will be abused - I just didn't think that was going to fly."

brooke@sltrib.com

---

* ERIN ALBERTY contributed to this report.

It is not yet clear how soon FLDS children could return to the YFZ Ranch. Possible scenarios:

* The ruling by the 3rd Court of Appeals goes into effect immediately. If 51st District Judge Barbara Walther does not vacate her order putting the children in state custody, the appeals court will release the children.

* Meanwhile, the Department of Family and Protective Services could decide to comply with the appellate ruling, sending some or all of the children back.

* The agency could instead seek a stay.

* It may also, within 15 days, seek a rehearing before the appeals court. That appeal could be narrowed to only children it believes can be proven to be in danger.

Hearings are canceled, but the children's future remains unclear
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