Texas standoff: Battle over FLDS kids gets rough
SAN ANGELO, Texas - Saddle up, because it ain't over yet.
The largest child-welfare case in United States history bucked participants and spectators every which way last week - and the wild ride will continue.
The first jolt may come anytime from the Texas Supreme Court, which worked through Saturday without deciding whether to stay an appeals court decision that sends some, if not all, of about 450 children from a polygamous sect back to their parents.
The children, taken from the YFZ Ranch near Eldorado, Texas, have spent seven weeks in state custody and are scattered in shelters throughout the state. The ranch is home to members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
The next jolt may come Tuesday. A court hearing that has already been jarring - state attorneys introduced photographs of sect leader Warren S. Jeffs giving a husbandly kiss to a 12-year-old girl he purportedly married in July 2006 - resumes.
By Thursday, the underpinnings of the state's case seemed to be buckling. Just eight mothers were left in a pool of 26 females the state believed to be 17 or younger. More were expected to be declared adults in coming status hearings. Not a single instance of physical abuse was introduced in the hearings, either. Still, five judges mechanically approved boilerplate service plans while rejecting any suggested modifications from parents' or children's attorneys.
Then came the decision of the Third Court of Appeals in Austin, Texas, which said 51st District Judge Barbara Walther abused her discretion in April by ordering hundreds of children to remain in custody without adequate evidence.
It was an uncommon reversal of a trial judge's decision. Scott Henson, who writes a blog on Texas criminal justice, said it came from a notably conservative court's "conservative wing."
A day later, the impact of the ruling played out in very different ways.
In San Antonio, a court hearing was canceled after the state agreed to return 12 children to three families temporarily while the legal gyrations take place.
In San Angelo, the state went to battle with the Jeffs photos.
The photos were entered as evidence in a 14-day custody hearing for an infant born May 12 to Louisa and Dan Jessop. The girl in the photo is Dan Jessop's sister. Attorneys for the state contend the photo is evidence that the couple lived in a household that supported underage marriage.
The photographs have left at least some attorneys for FLDS parents and children reeling. Lawyers interviewed by The Salt Lake Tribune on Saturday said they found the photos "disturbing."
But attorneys were unsettled, too, by the state's use of them now rather than at the original hearing in mid-April.
Where the photographs came from has not been explained. Nor is it clear how far the state will seek to extend their impact - a question of particular concern to attorneys for the multibranched Jeffs and Jessop families.
On Friday, state attorneys seemed to be making that connection by having Dan Jessop confirm names of about 45 siblings born to his father, Merrill Jessop.
But the photos caused legal experts such as Carl Tobias to raise the same question that has arisen with other prosecutorial moves in the case.
"Should one photo . . . serve as the basis for the state removing the 400-plus children?" said Tobias, a law professor at the University of Richmond in Virginia, and an expert in constitutional and court proceedings.
Which is the message from the Third Court of Appeals, said Richard Wexler, executive director of the National Coalition for Child Protection Reform in Virginia.
The photos are as "relevant as using a compromising photo of the parish priest to take the children of all the parishioners," he said in an e-mail to The Tribune, and are a "sleazy" attempt to shape public opinion.
"If it was aimed at any real court at all, it would be the Texas Supreme Court which is preparing to hear [state's Child Protective Services] appeal of a decision ordering many of the children returned to their homes," Wexler said.
Willie Jessop, an FLDS member and spokesman, traveled to San Antonio on Friday and, until Saturday, had never seen the photographs.
He said he doesn't know the girl or anything about her situation.
He accused the state of making a calculated, unethical move by using and publicly releasing the photos.
"If that was your daughter, would you want the court to leak it to the media?" he asked. "The state put those photographs out to insinuate there were marital relations that involved sexual intercourse, and that is not true."
The girl, now 13, is in state custody and, like other children, has received a physical exam.
Whatever her situation, it does not "give the state the right to take children away when it does not have anything to do with them," Willie Jessop said.
That argument has been made repeatedly by attorneys representing FLDS parents and children.
"There may be abuse going on. I don't think anyone has argued that's not the case," said Julie Balovich, an attorney with Texas RioGrande Legal Aid, one of the firms that won the appeals court decision. "The question is, can you remove these children this way under Texas law?"
For now, the photographs of Jeffs are being used in just one case - that of Louisa and Dan Jessop's son. The state's challenge is unchanged: It must show their infant is in urgent danger and there is no option but to keep him in state custody, separated from his father and siblings, ages 3 1/2 and 1 1/2 .
Wexler said even if CPS' allegations are true, there are alternatives - requiring parents to live off the ranch, for instance - that protect the children "without amputating their mothers."