Texas fights return of children to sect

State might have to send back 400 youngsters

Mothers from the Yearning For Zion Ranch in West Texas, each with five children in state-assigned foster care custody, reacted after learning of Thursday's favorable ruling. (LM Otero/associated press)

HOUSTON - Texas authorities yesterday asked the state's Supreme Court to overturn a ruling that found child welfare officials had no right to take more than 400 children from a gated polygamist compound.

Lawyers for the Department of Family and Protective Services also requested that the high court allow the state to keep the children in foster homes until their fate is decided.

Otherwise, they said, Texas would be forced within days to return more than 120 boys and girls to sect members who have not proved that they are the biological parents.

Officials acknowledged that if the appellate ruling were not thrown out, the state might have to return all the children to the Fundamentalist Church of Jesus Christ of Latter Day Saints, a group that broke from the mainstream Mormon Church after it banned polygamy in 1890. The ongoing child custody battle is one of the biggest in US history.

Also yesterday, a legal aid group said lawyers had persuaded a San Antonio judge to allow 12 of the children to be returned to their parents until June 9. Among the mothers set to be reunited with their children was Lori Jessop, an emergency medical technician whose son turned 1 last week.

"After yesterday, our clients have a new sense of hope and belief that the court system is working," said Kevin Dietz, a lawyer for Texas RioGrande Legal Aid. "They are not giving up, and neither are we."

In making their argument to the Supreme Court, Texas lawyers said the Third Court of Appeals in Austin had overstepped its authority by basing its Thursday ruling on the current body of evidence, as opposed to what was known about alleged abuse inside the compound last month.

"The court of appeals engages in a full out retrial of the issues at the appellate level, including re-weighing the evidence and second guessing the trial court's resolution," the state's lawyers wrote.

Texas authorities raided the Yearning For Zion Ranch in West Texas on April 3, after a caller claimed that she was a 16-year-old wife suffering abuse at the hands of her middle-aged husband - a call that probably was a hoax.

Inside the secluded compound, child welfare officials have said, they were shocked to find numerous pregnant teenagers and child brides living in a communal setting with older men, bound in "spiritual marriages." Those wives are considered single in the eyes of the state.

A judge in San Angelo last month agreed to give the state temporary custody of all the children, arguing that none were safe in an environment where child sexual abuse seemed to be a fact of life.

But Texas RioGrande Legal Aid, which represented 38 mothers whose children were taken, argued in an appeal that the state never proved all the children were in peril before scattering them in foster homes throughout Texas.

The appeals court agreed and noted that, if anything, the evidence might have become weaker since the raid. Some of the supposed child brides identified by the state turned out to be adults. One was 27.

Although the appellate court decision applies only to those mothers' children, it undermined the state's entire case, and legal analysts said it could lead to most of the children being returned to their parents within weeks.

Lawyers for Texas RioGrande Legal Aid filed a response with the Texas Supreme Court yesterday, contending that it was in the children's best interests to return to their parents while the dispute plays out. The lawyers ridiculed the state's claim that it did not know who the parents were, noting that many mothers had visited foster homes to see their children.

"Right now these children are experiencing the irreparable harm, pain, and distress of enforced separation from their parents [and, in many cases, siblings]," the lawyers wrote.

While they challenged the appeals court decision on technical grounds, Texas officials strongly reiterated their claim that all of the children had been in danger.

State attorneys noted that there is proof that some of the girls were married before 16, the legal age in Texas, including one who was bound to a man at age 12. They also noted that few adults stepped forward to take DNA tests to prove they were the biological parents, leaving "the vast majority" of the children in legal limbo as Texas tries to determine their future.

The state's evidence "clearly established that the practice of forcing underage girls into marriages . . . was an institutional practice, a practice that was supported by the alleged mothers," the lawyers wrote in their motion asking the court to act immediately.

Returning the boys and girls to the religious sect, Texas argued, "would subject the children to continuing sexual and emotional abuse."