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Posted: 9:53 AM- SAN ANGELO, Texas -- Texas RioGrande Legal Aid today filed a response to the state Supreme Court saying the Department of Families and Protective Services offers only "diversionary reasons" for why it would be impractical and wrong to return FLDS children to their parents.
"The department cannot scatter hundreds of children -- including infants and toddlers -- to the four winds and then complain that it cannot put the pieces of the puzzle back together again," TRLA wrote.
The legal aid firm represents 38 FLDS mothers whose children are in state custody. It filed the 17-page document in response to the high court's request that it counter the state's effort to overturn an appeals court ruling that some if not all of the more than 450 children taken into custody last month should be sent home.
The state conducted the raid on the polygamous sect's Eldorado ranch in early April, contending the children were at risk of physical and sexual abuse.
The 3rd Court of Appeals found a week ago that 51st District Judge Barbara Walther lacked sufficient evidence to support those claims for all the children. In hearings after the raid, Walther ruled the children would remain in custody.
The DFPS has asked the high court to overturn the appellate court's subsequent order, saying it made a "poor analysis of misstated facts in issuing its ruling" and abused its own discretion in reweighing the evidence presented in the trial court in mid-April.
In its filing, TRLA contends the DFPS failed to satisfy a three-pronged test laid out by the state legislature aimed at protecting the parent-child relationship from unnecessary interference.
DFPS says it has met those criteria: that everyone at the ranch comprised one large community and one belief system, and that the adults failed to understand how FLDS practices put the children at risk.
TRLA also contends it's disingenuous for state officials to say they don't know which children belong with which parents.
DFPS also has said it fears that if the children are returned, their families would flee Texas, but TRLA counters that the risk of flight issue is not reason to authorize continued custody.
The issue before the court is not whether the department acted in good faith, but whether it met mandatory legal criteria for keeping the children, according to TRLA.
TRLA also contends the state department puts forth a "jumble of assertions" about beliefs combined with its only potential evidence of physical abuse: five minor girls who were pregnant or had children. The department argues that this justifies removal of hundreds of children.
DFPS offers no evidence of risk for boys or prepubescent girls, TRLA said. Moreover, it claims, targeting a group's beliefs runs afoul of the U.S. Constitution.
Also this morning, national and state American Civil Liberties Union filed a friend-of-the-court brief supporting TRLA's position.
"State officials have an important obligation to protect children against abuse," said Lisa Graybill, legal direction for the ACLU of Texas.
"However, such actions should not indiscriminately target a group as a whole -- particularly if the group is perceived as being different or unusual," she wrote.
It is not known when the Texas Supreme Court will issue a ruling.