A breaking news report from Associated Press:
SAN ANGELO, Texas - A state appellate court has ruled that child welfare officials had no right to seize more than 400 children living at a polygamist sect's ranch.
The Third Court of Appeals in Austin ruled that the grounds for removing the children were "legally and factually insufficient" under Texas law. They did not immediately order the return of the children....
The appellate court ruled the chaotic hearing held last month did not demonstrate the children were in any immediate danger, the only measure of taking children from their homes without court proceedings.
This original mandamus proceeding involves the temporary custody of a number of children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas. (1) The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that there was immediate danger to the physical health or safety of the children.
Relators seek a writ of mandamus requiring the district court to vacate its temporary orders (2) in which it named the Department the temporary sole managing conservator of their children. (3) Relators complain that the Department failed to meet its burden under section 262.201 of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children's removal from their parents. Tex. Fam. Code Ann. § 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so....
In this case, the Department relied on the following evidence with respect to the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:
- Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
- Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
- Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
- Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen; (5)
- The Department's lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
- •All 468 children (6) were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
- Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.
In addition, the record demonstrates the following facts, which are undisputed by the Department:
- The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
- There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
- While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; (7)
- There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
- With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
- The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the five the Department has identified as being pregnant minors; and
- The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children."
The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. (8) The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." See id. § 262.201(d)(2).
The Department failed to carry its burden with respect to the requirements of section 262.201(b). Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9) 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. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child-rearing as soon as females reach puberty.
The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10) There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' 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. Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, (11) there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.
Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. (12) After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.
We find that the Department did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.
- Garry J. Wise, Toronto