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SAN ANGELO, Texas - The Texas Department of Family and Protective Services today asked the state Supreme Court to stay a lower court's ruling that FLDS children were kept in state custody improperly and that they should be returned to their families.
The DFPS request contends the ruling issued Thursday by the 3rd Court of Appeals in Austin was overbroad and would "irreparably" affect the outcome of cases involving hundreds of children taken from the polygamous sect's ranch in Eldorado last month.
The department asks that the Texas Supreme Court bar the appellate court from enforcing its order, arguing that the agency would have to return about 124 children to about 34 ''alleged mothers." However, the appeals court decision actually applies to 41 mothers and about 130 children, an attorney for the mothers said today.
The problem is, DFPS attorneys argue, that the agency has never been able to establish familial relationships among the children taken into custody and their mothers and fathers "due to an orchestrated conspiracy of silence."
The Supreme Court has requested the trial record from the appeals court, indicating it plans to work on the case over the weekend, a spokesman said.
In April, 51st District Judge Barbara Walther ruled that children should be removed from the ranch because they were in peril of sexual, physical and emotional abuse in a culture that believes in polygamy and underage pregnancy. Such beliefs, she found, would also harm boys raised in the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS).
State attorneys also argued that the appeals court abused its discretion by misusing "mandamus" - an order to a lower court.
The appellate court ruled Thursday that the state's argument for removing the children was legally flawed and relied on insufficient evidence specific to each child. The judge, it said, abused her discretion in continuing the state's custody.
The legal aid firms that filed the two petitions granted by the appeals court believe its legal reasoning applies to all 450-some children taken from parents at the YFZ Ranch, whose residents are FLDS members.
In an 11-page response to the state's motion to the Supreme Court, Texas RioGrande Legal Aid said that returning the children to their parents does not inhibit the state from continuing its investigation.
There are no privileged documents, trade secrets or First Amendment concerns at stake - traditional reasons for granting a stay, it said.
The firm also said the state falsely claimed identities of the children's mothers are unknown; status hearings under way in San Angelo have matched parents and children.
Every day that the children remain separated from their parents and siblings compounds the "harm, pain and distress" they've experienced, the response said.
Any concerns that the parents might flee with the children could be overcome by imposing travel limitations on them.
"If the trial court releases the children and if the department presents evidence that a child [or children] is in danger, it can do a new proceeding," the filing states.