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Texas Supreme Court Says State Lacked Basis For Removing FLDS Children

By Howard M. Friedman

Today in In re Texas Department of Family and Protective Services, (TX Sup. Ct., May 29, 2008), the Texas Supreme Court agreed with the 3rd District Court of Appeals (see prior posting) that the state lacked a sufficient basis to place into Department of Family and Protective Services custody the children that it removed last month from the FLDS Ranch in Eldorado, Texas. The main case before the court involved 126 of those children and a companion case involved 13 more, but the reasoning would appear to apply to all 468 children involved. In a relatively short opinion, six justices held:

On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals? decision leaves the Department unable to protect the children?s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders "for the safety and welfare of the child", including an order "restraining a party from removing the child beyond a geographical area identified by the court". The court may also order the removal of an alleged perpetrator from the child?s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede....

Justices O'Neill, Johnson and Willett in a separate opinion dissented in part, arguing that there was sufficient evidence to justify taking into custody the pubescent female children. They said "evidence indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch..." They argued that resistant behavior by parents and children made it difficult to fashion less intrusive remedies. However these justices agreed with the majority that there was not sufficient evidence to justify awarding custody of male children and pre-pubescent female children to DFPS. CNN reports on the decision.

In the companion case involving 13 other children, the Court issued a brief per curiam opinion reaching the same result.

The pleadings and briefs in the cases are available here and here from the Texas Suprme Court website.

Full post as published by Religion Clause on May 29, 2008 (boomark / email).