A unanimous decision by the Texas Third Court of Appeals in Austin on May 22, 2008, was a resounding victory for the FLDS people and a vindication of the position that we have taken since the YFZ community was raided last month. The Court said that there was no evidence of an ?immediate? or ?urgent? danger justifying the removal of the children and directed the district court to vacate its decision giving CPS custody of the children. The Court of Appeals will issue a writ of mandamus ?if the district court fails to comply with this opinion.?
The Court ruled that ?the evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient ?to maintain
custody of Relator?s children with the Department. Consequently, the district court abused its discretion in failing to return the Relator?s children to the Relators.?
While the appellate decision only immediately affects the children of 38 mothers in whose behalf the ruling was made, an Associated Press release on May 22, 2008, said that attorneys for the other parents are expected to seek for their clients to be included in the ruling.
The appellate court found that the state was wrong to consider the entire YFZ community as a single household and to proceed on the basis of guilt by association. The following is stated in footnote 10 of the
?The notion that the entire ranch community constitutes a ?household? as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department?s witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a ?household???
The ruling also indicates that the entire action was based on religious prejudice just as the FLDS
people have been claiming all along. CPS consistently has referred to the ?pervasive belief system? of the FLDS people as justification for taking custody of the children. The Court of Appeals ruled as follows:
?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 Relator?s 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?.. 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.?
. While it is not the case that the FLDS Church teaches that underage marriage is part of our religious belief, the above quotations do clearly show that given the absence of any evidence of physical danger to children, the state?s actions were indeed a direct attack on the FLDS religion. Furthermore, in the ?individual? hearings which have been in session this week, CPS already has acknowledged that most of its underage mothers actually are adults.
As the implications of the Court of Appeals decision become apparent, we acknowledge first the blessings of our benevolent Heavenly Father in answering our prayers and the prayers of thousands of other honest-hearted people worldwide. We also express our thanks to the Judges
of the Third Court of Appeals, to Julie Balovich of the Texas RioGrande Legal Aid group, and to all of the other attorneys who have been working so hard to obtain justice for the FLDS people. We know that much remains to be done before the families are reunited, but the process is finally underway.
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