Thursday, May 22, 2008

3rd Court of Appeals: State had no right to seize YFZ Ranch kids!

See the initial report from AP. The court said the grounds for removal were "legally and factually insufficient." More at The Common Room, the Lone Star Times, and Messenger and Advocate.

UPDATE: Here's a more indepth account. The ruling only applies to 38 mothers represented by Texas Rio Grande Legal Aid, however the "nature of the ruling may eventually mean other sect children will be affected by it as well." Here's Brooke Adams' initial coverage from the Salt Lake Tribune. She reports that "hearings on the children's status, sheduled for this afternoon and Friday, have been canceled. District judges are conferring about what to do next."

MORE: Thanks to a reader for providing this link to the opinion.

SEE ALSO: coverage from the New York Times, the Washington Post, Dahlia Lithwick at Slate, the Deseret News, and the Houston Chronicle (also here).

AND MORE: Footnote 11 to the opinion rocks! "The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system."

I've been waiting to hear someone in authority say that since the day this fiasco began.

AND EVEN MORE: Sharon Griggs shares the text of the Dallas News editorial she wishes would appear in tomorrow's paper in light of the court's decision, but will not. I'm guessing the editorial, instead, will look more like this blog post from Michael Landauer, which says CPS was right to seize the kids and places blame on Judge Walther.

BLOGVERSATION (updated 5/23): UCLA law prof Eugene Volokh examines more potential legal difficulties for the Department of Family and Protective Services, but also says that despite the ruling, some FLDS members may still be in big trouble. Deborah King at The Huffington Post makes the bizarre claime that media coverage has been slanted in FAVOR of FLDS! Semicolon sees "A Ray of Sanity and a Troubling Future." calls fundamentalist Mormonism "A belief system vindicated," however The Reaction disagreed, calling the court decision "illiberal." Protein Wisdom approved of the decision, calling CPS' actions "wildly unreasonable." A Girl in Short Shorts calls the decision a victory for American families, but wishes the court would ban FLDS women's "overachieving pompadours" and prairie dresses as fashion crimes. David Friedman updates the arithmetic about underage moms in this post at Ideas.


Anonymous said...

Will this cause the immediate return of the children, or is there more legal wrangling to be done?

Gritsforbreakfast said...

I have no clue. It doesn't apply to everyone. More updates coming in as I write.

Survivalwoman said...

I really do hope that all the children can be with their families again. I pray they were not too damaged in this.

Anonymous said...



Never have I seen a case where a state agency (CPS) has relied
so heavily on a smear campaign made up of lie after lie to justify
their actions (and those of other state agencies - including that
of a warped District Judge). That is, undoubtedly, why that judge
has never issued a gag order in this case. They hope the focus
of the public will be diverted to those absurd lies and vile con-
jectures, rather than a consideration of facts NOT in evidence
...and will not view this travesty of justice for the unconscionable
violation of civil rights which it is.


1. First of all, there should never have been an invasion of that
private property. The pretext for that armed intrusion (a hoax
perpetrated by that neurotic black girl) might have risen to
"probable cause" but how did that justify breaking into their
safe and all of their files and computers? Actually, facts have
now come to light that the authorities knew ahead of that raid
that the supposed culprit had been out of the state for several
years. That makes all such seizures of property and children
even more illegal. An intentional violation of due process
by the fascists.

2. CPS targets its accusations and smears mainly by attaching
the word "sex" to almost every activity and conduct practiced
by that FLDS sect:

a. "Spirit Marriages: One could argue that all marriages
are "spiritual" ceremonies. What is the different between
a marriage by a Justice of the peace, and/or by a Captain
of the good ship lollipop, and a spirit marriage conducted
by an elder at that FLDS compound? I can suggest one big
difference. The FLDS marriages will reflect a greater
"commitment" to their vows and/or ceremony than nor-
mal non-spirit marriages.

The FLDS man who marries a wife stays married to her,
and sees to it that any kids born of that union are well fed,
healthy and happy. On the other hand, there are huge
numbers of divorces between couples that are not members
of FLDS. Accordingly, there are a large number of ex-
wives who are struggling to raise their kids as single moms.

Of course, a "spirit" marriage might also be defined as one
which is not officially recorded. That would be explained by
the fact that without such records there in no proof that a
husband has engaged in marriage to plural wives. So, to
practice a tenet of their beliefs/religion, they must resort to
sub-rosa marriages.

b. Sexual abuse and rape: There has been no evidence
whatever that there is any sex taking place outside of a
marriage. And, sex within a marriage is neither sexual
abuse or matter how the officials and media twist
the actual facts.

Of course, I don't doubt that some girls have chosen to
get married as early as 14 years of age. But no girls have
come forward to testify that they were "forced"into those
marriages... and none have complained that they are unable
to discontinue any such marriages should they wish to do so -
and/or to voluntarily leave that compound.

c. A more recent smear by those desperate zealots were
allegations that many boys had broken bones - insin-
uating that the men in that compound had intentionally
mistreated them psysically to the point of breaking their
bones. If, indeed, that is to be explored, then there should
be a disinterested and respected orthopedic surgeon
examine each such male child to obtain the truth about
such injury. But, it should be noted that not a single one
of those boys have come forward to reveal any such
psysical abuse?That did not dissuade Nancy Dis-grace
of CNN from slandering the doctor that treated those alleging that said doctor probably covered up
the abuses since he was aligned to FLDS. I only hope that
doctor sues CNN and Nancy Dis-grace for slander and
defamation of character.

3. Next, we have the allegations by CPS that these children
are being "conditioned" or brainwashed to live the kind of lives
they lead. Lord knows we are all being conditioned every day to
accept the idea that we must stay in Iraq and suffer those
human and financial costs in order to "stabilize"that country.
But, then, that conditioning has not/will not convince me.

CPS and Nancy Grace are conditioning us to believe that people
and groups are guilty untill proven innocent. Our children in
public schools are being conditioned to accept homosexuality,
lesbianism, and same sex marriages as being normal. They are
forced to read " Why susie has two mommas", and, "Daddy's live
-in friend". They are taught sex education in schools - where, in
the sixrh grade, they are learning to put condoms on cucumbers.

If parents are catholic, don't they have the right to condition
their children to believe in going to mass every Sunday; and
learn how to say their addition to confessing all
their sins to the priest in the booth? Don't the jews have the
right to teach their kids to eat kosher. Don't muslims have the
right to teach their kids the belief that one should not eat pork
because the meat is impure?

Then, why shouldn't FLDS parents have the right to"condition"
their children in their own religious beliefs and practices.
Perhaps we should turn over parental instruction of all our
children to CPS...who can teach them to become secular hypocrits
like themselves.

4. Undercover Agent?:
It was no long ago when we were told that all those accusations
and slander could be proved because there had been an
undercover agent working inside that coumpound. But during
the temporary hearing on custody of those kids, the state did
not produce any testimony from such person with first hand
knowledge of illegal acts. ANOTHER FAT LIE.They did produce
a psychologist - who is a hack for the state to help any kids that
manage to survive any atrocities caused by the government
(he treated the kids from the Davidian compound outside Waco).
He is a clone of that Dr Grigsby (known as Doctor Death) who
was a psychiatrist in Dallas County that the DA could always
count on to testify that a person, who the state wanted to
sentence to death, was a sociopath.

Finally, the idea that the courts might condition the release of
those children back to their parents on having them attend some
sort of indoctrination on how they should raise their children, is
too absurd to even contemplate. Many of the women in that sect
have probably mothered 4 or more children. And, they have
several other mothers to back them up in parental duties. Cer-
tainly, all parties involved in this case would agree that those kids
are clean, well-mannered and healthy. I would be willing to wager
that any kids being raised by those CPS feaks not only delinquents
but are probably smoking pot or doing meth. And, while their kids
may not be marrying older men, they have likely been sexually
active since they turned 14 (or younger).

If CPS is all that shocked that there are underage FLDS girls giving
birth, why don't they attempt to take the infants away from all
those nderage young girls in our society who are not members of
FLDS ..and have no husbands to support either those girls or their
infants. Instead, our society attempts to subsidize those girls with
Aid to Dependent Children; food stamps; subsidized housing;etc,etc.
There is something missing in the reasoning in this case. The courts
should apply a bit of common sense in trying to deal with problems
that do not exist - save and except for those that have been created
by the officials of the State ofTexas. The only protection that those
children need is to be protected from CPS and the predudice of that
methodist judge against the FLDS's beliefs.


Where are those constitutional scholars who usually speak up for
the constitutional rights of the terrorists at Gitmo?

For more extensive links to subject go to: www.gritsforbreakfast.

kbp said...

Opinion in PDF

From someone on last FLDS comments here at Grits. Maybe Melanie.

kbp said...

Fred mentioned (linked) about the CPS appealing the order for them to extend the nursing period for a mother with a child greater than 12 months old. To it I replied:

That is another example of the group think in this mess.

Walthers changed her mind twice, creating 3 different decisions on the nursing mothers.

The second, that it was to be decided on an individual basis was correct, but I think Walthers saw that CPS had no intention of rendering decisions that would be acceptable, more likely harmful to the babies.

Her 3rd decision was boiler plate and conflicts with individual needs that may be in place.

On Walthers, who I assign much blame, I believe the Appeal Court was upset with her on that UNSIGNED Order For Temporary Custody they were snookered into basing their denial in the first go around with TRLA.

It leaves me curious if Walthers had to decided whther to SIGN that dated Order nad risk facing Fed's if caught, or date it UNSIGNED and hope it passed without notice, worst case creating problems with the state bar (or whatever enity has authority over the conduct of judges).

I have tried forever with various attorneys and reporters to find a copy of the Custody Order to see the date is was signed and create questions about the possible problem it may reveal.

Maybe I am off on a wild goose chase, but I have questions nobody will answer or help with.

Anonymous said...

to tracee:
much, much more legal wrangling to be done

court did not order the children to be returned, it merely said that the state taking custody based on the joke 14 day hearing was wrong. i guess that the likely outcome will be that there will be a re-do of the 14day hearing (after, of course, CPS has taken its sweet time appealing this decision)

and furthermore: any of the parents that already signed the service plans... well, best of luck to them.

Anonymous said...

Well, maybe justice will be faster than when this happened in the past.

If I represented any one of the other people, I'd cut and past the Rio Grande Legal Aid's motions and just change the name. If it gets denied at the trial court, and it will, we already know the 3rd will over rule the trial court's ruling. Bingo.

kbp said...

Back to Walthers!

Footnote 2 of the Appeals Court Opinon:
"The temporary orders reviewed in this proceeding were issued following the hearing held Aprill17-18, 2008, and were SIGNED the week of April 21, 2008."

Not conclusive, but the Order was not identified to have been signed on THE 21st, before Placement orders were signed the 22nd, but instead the "week of".

CYA to not point out a problem?

Melanie said...

The ruling said that the department must give up the temporary custody and conservetorship, if I'm reading that right. I would *think* that if the state doesn't have custody or conservetorship, they would have to give those kids back to the parents.

kbp said...

Footnote 10:
The ranch is NOT a "single household"

Michael said...

Not that they need it, but another hats off to Texas RioGrande Legal Aid for some great legal work for these families.

Anonymous said...

This ruling will save the State of Texas from wasting a lot of money!

Yes, I took a couple of "cynic" pills this morning. I am thrilled that the judicial walls allowing for this outrage are crumbling.

Appeals Court - You rock! El Paso Legal Aid - You're the best!

Anonymous said...

A friend called this a "class action child endangerment/removal situation". Its now going to turn into a class action civil rights suit of mammoth proportions. When the civil suites about denial of basic rights to FLDS mothers are over, FLDS may end up owning Texas -- or at least Schleichter County.

I would also like to see the Southern Baptist Convention end up as collateral damage in any suit as they apparently supplied a lot of help in this pogrom, and the SBC doesn't think highly of anyone's religion except their own.

Family Court Judge Walters needs to be impeached and then disbarred for going along with this farce, and the CPS rules need to be rewritten so that a child cannot be jerked out of its home just because some CPS bigot doesn't like the parents religion. (This has happened to Pagans.) The vague "child in immediate danger" section of CPS rules also needs to be rewritten. Right now its about as clear a drilling mud.

Also, the whole foster care system needs to be secularized and the SBC cut out of their little fiefdom. Their record for child abuse is not exactly squeaky clean.

Anonymous said...

If I were any of those families who now get their kids back, I'd haul buns to Utah.

They get out of Dodge, the local Baptists get rid of funny dressed people, everyone wins.

kbp said...

Children involved:

Footnote 13 notes the children this opinion addresses are identified in "Appendix I to Relators' reply brief...", which I have had no luck finding in any of the filings that went to the appeals court. The PDF's do not include the Appendix's listed in those briefs.

The way the opinion reads to me, unless they give CPA & Walthers a Mulligan for that 14 day hearing, all could simply file the same writ and get the same decision without all the trouble TRLA had.

CPA did not follow and meet the criteria required for any of the children involved.

Gritsforbreakfast said...

"I'd haul buns to Utah."

I'd feel exactly the opposite, rage. I'd be mad as hell, and headed back to Schleicher County to fill out those voter registration cards and hunt for a Sheriff candidate!

To any of you lawyers or knowledgeable others: Do y'all think they'll get to use information from those lawyerless law enforcement interviews that CPS consented to while it had custody of the kids in criminal cases?

I still haven't figured out if the entire house of cards just collapsed, or only a portion of it. The foundation is shaky, for sure. Where's Txbluesman when you need him to explain the remaining strengths of the state's case? ;)

kbp said...


Though it should be, for all that are not proved to be a victim or perpetrator of a crime, it ain't over yet!

I wish it were, it has me hooked to checking up on it constantly.

"It's early in the GAME..."
Allison Palmer, ADA

Anonymous said...

Grits: I think they could have used some of the info except for the fact that we know even more about how phony the call was that started all of this off. If not for that, they might have a chance. As is, I don't see how any of this can be used in the future.

More evidence will develop along the lines of how much CPS knew about the call from "Sarah" prior to the raid--probably for a civil suit.

Like I've been saying from the start, if there are any molestors in there, they get out of jail free now.

I'd head to Utah and hell with this Sheriff.

Unknown said...

Sadly, I think that this victory will be short lived. The Texas Supreme Court will most likely overturn the appeals court. It is an election year.


Michael said...

"The Texas Supreme Court will most likely overturn the appeals court. It is an election year."

First, can you identify one justice on the Supreme Court in a competive race for re-election?

Second, what makes you think the Supreme Court is going to be any happier than the Austin Court of Appeals (where four of the six justices, and all three on the panel, are Republicans)? I've heard some SCOT justices speak at CPS seminars, and there are some cases that aren't being pursued to the Supremes that need to be.

I don't think the State wants any more precedent going against it than it already has. Plus, they need to get off the nightly news for a while.

Anonymous said...

Looks like the last sentence means...return the children ASAP or we will force you!!! :) Thank you for the opinion link. I am printing it and saving it for my new "Child Welfare Agents" folder to have on hand in case I get a Rozita call (God forbid, please!) to prevent removal from a false call because my children are not abused, but a fall from a bike might be.. Shame we have to make such folders to protect our children from the "protectors". has instructions for making such a folder..I advise every parent who does not abuse their children to make one.

Gritsforbreakfast said...

Certainly for any actual perps, rage, if that was your point, I agree - up and out. I'm assuming the folks who were just wrongfully roped in might not crater so easily. They've got a lot invested in the ranch site and the temple, after all.

And actually David, the election year is why I was worried about the 3rd Court. Chief Justice Law (ain't that a great name?), in particular, is an R in a tight re-election fight with a D. But the three judges on the opinion were Law, Pemberton and Waldrop, all Rs. FWIW, this is an opinion from the conservative wing of the 3rd Court.

kbp said...

Walthers, what will she do?

"the district judge who granted custody of the children to Texas child welfare officials has 10 days to comply, said Julia Balovich, an attorney with Texas RioGrande Legal Aid.

State officials also could seek a stay from the appeals court. They have already indicated they intend to appeal, TRLA has said."

The appeals court pretty much ruled the CPS and Walthers failed on every thing covered in the appeal.

Should they get slapped again? I'm thinking CHA CHING, more damage.

Anonymous said...

I've only been following this story casually but agree with the tenor of your posts that a grave injustice has clearly been done here.

I've been doing some historical reading on child protective services lately, and the sad pattern is that state and county CPS depts seem to intervene where it isn't warranted, and avoid intervening where it's needed. Obviously, this case is an egregious example of the former.

I agree with your earlier point that the kids can't possibly be better off in the hands of the state foster care system. How appalling.

It seems that the YFZ Ranch people are suffering by being equated with the Warren Jeffs case. This seems to have created the conditions for the overreaction to the bogus phone call.

I've been disturbed by some of the TV news coverage on this story, which presents almost nothing but cultural disapproval of this group. OK, so they are "different." So what? Heavy handed use of state power is not the appropriate way to register that disapproval.

Bill B.

TxBluesMan said...


This will not necessarily cause an immediate return of approximately 50 (+/-) children in CPS custody that are related to the specific court order.

First, Judge Walther and CPS have 10 days in which to appeal this decision.

Second, the mandamus has not yet issued, it is (as is typical in Texas) a conditional order.

Third, the writ did not cover any of the teenage girls that are capable of bearing children.

Unknown said...


Not gonna be a walk for the Repubs (sadly, btw).


I hope you are right. Truly, I hope you are right.

The Local Crank said...

Flat out reversed AND on an "abuse of discretion" standard no less. That is practically unprecedented. Since the removal order was reversed, yes DFPS must immediately release the children. I would anticipate however that DFPS will claim they don't know who all the parents are in order to stall for time.

Unknown said...
This comment has been removed by the author.
kbp said...

Bill B

"...created the conditions for the overreaction to the bogus phone call."

This was a plan for four years, Sheriff Doran told the world of his brilliant scheme.


Where did you see in that Opinion that the 14 day hearing covered all the bases required by 262.201 to take custody of ANY of the children?

The Opinion may not cover all of them, but it was written to show what was missing in the process for ALL of them.

Anonymous said...

happy news, but....

....the State still has the kids, and he who has the kids has all the leverage.

I don't think this is over by a longshot.


Kathy G said...

Today is my 58th birthday and this news is the best and only present I got!! I'm thrilled and hope it is only the beginning of turning this around quickly and getting those children back home!! (I wouldn't be surprised if the FLDS choose not to sue anyone over this, but turn the other cheek and forgive instead. They just want to have their kids and their lives back. It will be interesting to see how this all plays out.)jy

Unknown said...

I wouldn't be surprised if the FLDS choose not to sue anyone over this, but turn the other cheek and forgive instead.

I hope you are wrong, wrong, wrong. Turning the other cheek might be appropriate in a different situation. This case affects every citizen of Texas and the US. It is far too important to simply turn the other cheek.

The only thing politicians understand is money. If the State gets hit hard and often, they will not be so quick to pull the trigger on something like this again.

Unknown said...

Rick posted a summary with thoughts here.

kbp said...

What the residents of YFZ face is not all over by far, but the taking of the children and the joke that 14 day hearing was has been revealed to all by the appeals court.

While there were 2 select groups of children the court said may have met one or two of the requirements for taking them, it is not certain that those within these groups should be included anymore.

CPS has a steep hill to climb to please the guiding force[s] behind all of this and I bet Walthers will start distancing herself further from the leadership in this mess.

Michael said...


Don't get me wrong; I'd love to see some (D)s on the SCOT to replace some of the WalMart whores appointed by Perry. (I'm so old my law license actually has 5 1/2 Democratic signatures.)

But I disagree with your more recent posts about suing DFPS. Not that they shouldn't get sued, but it's an awfully long road to hoe. The state law doctrine of official immunity was actually created in a CPS case.

kbp said...



The FLDS already has a BIG name hired to do nothing but file a civil complaint.

If Goldstein thinks he can squeak a nickel or more out of Texas, I anticipate we'll see him try.

Anonymous said...

It’s a shame CPS can’t go after real child abusers like tyc. Oh, that’s rights cps feeds tyc its customers.
How much of a lame minded person would take the time in college only to work for an agency of sniveling cowards who’s very role makes them child abusers.
I hope cps gets nailed on this shameful piece of work and may God heal those families, quickly.

Unknown said...

A long road, true enough. But not impossible and CPS's actions in this case smooths out some of the bumps in that road. If successful, the rewards will be huge. Who knows? Maybe someone will take it on.

Gritsforbreakfast said...

David, I really have no way to judge the Supreme Court's likely reaction - I just don't watch the civil side. But I was encouraged by who wrote the opinion for the 3rd. If election year politics were going to be in play, I fully expected (or rather, feared it) in the 3rd Court's ruling.

Indeed, I've got to give credit and even a minor apology to the 3rd Court. I'd expected they might let politics get in the way of their legal judgment, and they did not. I was wrong and I'm proud of them for this opinion.

You gotta give credit where credit's due: More conservatives than liberals are speaking up for these folks civil rights. The R-written 3rd Court opinion is stronger than any of ACLU's public statements on the topic. Speaking of which, the conservative Liberty Institute filed amici and spoke out on this nearly from the get go, while the ACLU was a self-declared spectator.

This isn't over by a longshot, but it's fair to say that while people have spoken up from across the political spectrum, a preponderance of critical voices have come from the political right.

Speaking of credit where credit's due, I'll have more later but Michael's right that Rio Grande Legal Aide does indeed deserve a ton of credit. I'm also sincerely proud of all the 300+ Texas attorneys who volunteered for ad litem duty in this mess. Mensches, one and all.

I thought that was a really cool moment when the bar, almost on collective impulse, stepped forward by the hundreds to become ad litems, often at significant personal expense. For once, lawyers behaved in a way that made the profession appear noble instead of reinforcing negative public perceptions. A nice change of pace.

I'm very interested in everyone's predictions about what happens next? Where do we go from here? Please give me worst and best case scenarios as y'all see them.

Michael said...

I don't think election year politics is irrelevant in this case. I think it's going to cut against CPS.

kbp said...

1983 complaint?

Malice = NO immunity

Should the search have halted before it was executed show malice?

Does interviewing the shelter worker one day prior to the raid indicate it never was a search for Sarah?

Would ignoring life threatening situations to pursue Sex / Child crimes days later show malice?

Does a four year plan using legislation directed at the FLDS show malice?

Would the fabrication of testimony about ages indicate malice?

Would the totality of all that has led to this point show any malice?

Pinkycatcher said...


What would have to be proven in a civil case against CPS? Because they obviously did not work upon good faith, and they blatently disregarded their own regulations. I'm no lawyer, but what is the defense against that?

My worse case scenario: CPS appeals, multiple times, still holding the children, eventually they reach a court that rules them correct, they then hurry all the children off and dissolve parental rights before another appeal could be heard, and everyone gets screwed.

Best case: Children are returned, all evidence is deemed void, and FLDS succesfully sues CPS. Then hopefully real evidence comes forward, and they prosecute any real criminals.

kbp said...


"Please give me worst... case scenarios..."

Walthers will demand 460+ INDIVIDUAL appeals on the suits to obtain at least one ruling in her favor to show the 14 day hearing was done correctly.

It's the only fair way to do it, a boiler plate opinion that addressed all in the hearing is simply un-American to her!

Anonymous said...

Grits also deserves a pat on the back.

I had not thought of the idea in "Footnote 11". I read it in the ruling but it didn't sink in. Then I read what Grits wrote--- ding, ding, ding, that is the strongest point yet about the faulty basis of this case.

Baptists make mistakes despite professing a strong belief in their religous doctrine. The Baptists children were not rounded up. The "pervasive belief system" theory of abuse just doesn't hold water.

Thanks again Grits for your way with words and work for justice in a flawed system.

Anonymous said...

grits... is there a reason you added a long comment to this thread but did not edit it into the original post?

Michael said...

While I practice a lot of CPS litigation, I'm not an expert in suing CPS in state court or federal court, although I have a lot of expertise in pouring money down a rathole from Waco to New Orleans trying to get a fair hearing in an inmate case. I'll let Goldstein whack at that pinata if he likes. (Fed court is the only way to go, since he can't get paid on a state court judgment unless the lege says he can.)

Gotta unsubscribe so I can woik now.

Gritsforbreakfast said...

"is there a reason"

Not really, I just started reacting to David and got a little longwinded. Shocking, I know. :)

Anonymous said...

This is step one in letting those all those kids back into the diddle factory.

The state pusses out yet again. Instead of standing up to these kiddie f*ckers, we are going to ever so calmly pull an Arizona/Utah.

Hey, why not? Its not like these kids have a future or anything right? Texas is quickly turning far to libertarian.

I could not be more disgusted with the State.

kbp said...


If you did not know, I hope this helps.

They have to get past immunity that will be the the defendant's argument for a summary judgment at the very start of the suit.

The FLDS complaint will be taken as fact at that point (it must considered such here), so the FLDS need to show malice (or a few other things I don't think would happen here).

In the next step, if they get past the summary step, they have to prove that immunity does not apply and prove what their complaint says is fact.

That's the short, non-attorney description of what must happen.

Hopefully legal minds will do a better job here, though it is very early to be talking about a civil complaint.

kbp said...


I hope you, and especially any children related to you, never face this type of rights violations.

Best of luck to you in your world.

Pinkycatcher said...

"far too libertarian"

So much better than the opposite, plus we don't need the constitution right?

"No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship."

That's taken from the Texas constitution, which is the law of the land here.

Also, what I find interesting when glancing over the Texas constitution, the state will have to pay for all the doors, and safes and everything it broke when it went in. Article 1 Section 17:

"No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made"

Pinkycatcher said...


Bummer, that is a lot, I know it's "early in the game" to be talking about that, I was just interested in knowing.

kbp said...


The "doors, and safes" were a result of the Search Warrant.

That's back to a civil complaint, and the warrant needs to be eliminated before they'll be paid for the doors!

What you quoted originally comes from our bill of rights, but the takings laws are about gone today!

Ron in Houston said...

I really thought the politics would have precluded the temporary order being overturned on a mandamus standard. I have to give that panel on the 3rd a lot of credit, they really saw the case clearly and gave a very sound ruling.

I think CPS is not going to take this lying down (no pun intended) and will appeal this ruling. It's a politically charged situation and I really wonder what the Supremes will do with this hot potato dropped in their laps.

I don't think the fat lady has sung by a long shot.

kbp said...
This comment has been removed by the author.
kbp said...

Texas defends removal... tells of updated message at the CPS web site.

"Meanwhile, hearings on the children's status, scheduled for this afternoon and Friday, have been cancelled. District judges are conferring about what to do next.

...While the appeal was filed on behalf of TRLA's clients, the reasoning would apply to all of the children, Balovich said."

DFPS web page
"Child Protective Services has one duty blah, blah, blah... [SOS from 14 day hearing] ...we respect that the court’s responsibility and view is much broader. We will work with the Office of Attorney General to determine the state’s next steps in this case."

"It's early in the GAME..."
Allison Palmer, ADA

kbp said...

Texas officials concede at least 15 sect mothers adults

More added to that list, or subtracted from the other(!), before status hearings stopped I guess???

Unknown said...

I didn't realize that the DFPS has an entire section of their website devoted to this and still has "facts" up that have been proven false.

DFPS Eldorado

kbp said...


I see it as a wholesale slaughter of everything that went on in the 14 day hearing and the emergency custody of the children by the CPS initially, along with it being an indirect scolding of those involved.

The Supremes are faced with a "hot potato" that was thoroughly cooked.

It seems to me they'd either have to find some other code that would allow some wiggle room (longshot), a technical reason why the 3rd should not have heard the case, dream up some plan to overcome almost ALL of what the 3rd addressed so completely, or punt.

I'll admit that nothing would surprise me!

Maybe the CPS was going back to the NOT single household yesterday to plant meth !

kbp said...


You like that DFPS website?

They changed it some, but I'd saved a page. Here's part of that page:

Overview of the Investigation – Eldorado, Texas
As of April 9, 2008
Chronology and Status Report
Monday, April 7

District Judge Barbara Walthers granted DFPS temporary legal custody of all 401 the children in the shelter in San Angelo, after it was concluded that some of these children had been sexually and physically abused and the rest are at risk of abuse if returned to their homes at this time. An adversarial hearing was set for April 17, 2008 to determine if the children should remain in DFPS conservatorship.

Tell me how a Judge can "Conclude" that "some of these children had been sexually and physically abused", before any hearing?

karateka said...

I think the facts uncovered in the recent San Angelo "individual" hearings are going to make any CPS appeal of this ruling much tougher. You now have pages of CPS testifying that the FLDS did not abuse their children. You have court cases involving monogamous couples. Those established facts were not available in the 14 day hearing.

Thus, I think the Supreme Court is much more likely to rule in favor of the FLDS. Judge Walther was ruling based on extremely small amounts of factual information. For example, CPS did not yet even have the number of children (overall count or pregnant minors).

My conclusion: it is still early in the game, but the facts have changed the game, and CPS has to be able to find the ball to play.

Parent Rights

Anonymous said...

David, I really have no way to judge the Supreme Court's likely reaction

Three to one they do this:

"writ denied"

That way is stays the Charlie-Foxtrot of the CPS and trial judge, and they come out clean by the time any one of them is up for a contested election again.

Anonymous said...

The appeals decision is exactly what I have been thinking all alone. Just because all these people live on the ranch, does not make them one household. As they are not one household, what right does CPS has in removing childen from all of them without specific allegations of abuse against specific people? The children have to be in imminent danger. Just because 10 years from now some child might marry underage is not imminent danger. The fact that there are pregnant teenage girls by itself does not equal abuse. The teenage girl could be legally married (at least in theory), in which case I doubt even CPS would argue she has been abused. The teenage girl could be above the age of consent. CPS also could have tried to keep the kids with their mothers while asking fathers to leave the ranch (even that would be over-reaching, IMO, as these people are not in one household.) So, I find it hard to believe supreme court would over-turn the appeals court decision. Of course no one can see the future, but what would be the argument to allow CPS to remove all the kids from these people?

Headmistress, zookeeper said...

Third, the writ did not cover any of the teenage girls that are capable of bearing children.

None of the Relators have children of that age, but didn't the ruling address that, too?
The Department [CPS] failed to carry its burden with respect to the requirements of section 262.201(b). ... 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. 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 anyyone 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."

Anonymous said...

pages of CPS testifying that the FLDS did not abuse their children.

I don't know how well this has been reported. In one article that I read the attorney's question to the social worker was if she personally had witnessed any abuse or neglect during visitation and she replied that she had not.

That's the key phrase that's missing from these reports "DURING VISITATION"

Hardly the same thing as saying that no abuse had ever occurred.

The individual social workers assigned to the children probably were not the same ones that went into the ranch and wouldn't be able to testify about abuse that they did not personally witness.

Thotman said...

Thank you all for the timely commentary and informative explanations. After reading the decision and the footnotes...and now your views, I have almost concluded that this decision may be jepordized by the fear of voters. I have noticed however that those supporting cps are dwindling in both number and zealousness. Public opinion may be shifting from a sensationalist interest to a judgement that this decision is good for Texas both financially and for its image in the press. The wild card here will be the dictrict judges reaction to this ruling. I think the four/five other judges may fall in line with the court of appeals. Walther will be just trying to jusitify her position. Will the service plan hearings be suspended until an appeal? what requirements does CPS have to hold them in a timely fashion?

Anonymous said...

I agree with whomever it is that suggests the SCOT will not accept an appeal from the 3rd Court of Appeals: "writ denied." The SCOT does this, if not routinely then frequently. While writ denied may not be as strong as denying an appeal after briefing and argument, it is still an affirmation of the legal reasoning and decision of the lower court.

But here is a scenario which depends almost entirely upon the alacrity and creativity of the CPS attorneys and upon just how much of a stubborn old curmudgeon Judge Walther wants to be. That is, the State immediately asks for a rehearing as to the 38 kids involved in the Texas Rio Grande Legal Aid mandamus appeal. The Judge grants it, sets it for hearing before the 10 days is up. At the hearing, CPS puts on some kind of evidence of danger to the kids, evidence which may meet the 3rd's standards. Judge again gives the kids to the State. The 3rd then will have to stay its conditional writ of habeas corpus, pending an appeal of the new order. And on it goes, with the kids still in custody, and being traumatized dailey.

Anonymous said...

Grits asked for worst case/best case guesses.

Worst might be, CPS does have real pieces of evidence that - "Oh yeah! Here it is!" - come out at appeal. CPS really is a knight in shining armor, risked their reputations and future to daringly snatch 460 children from the jaws of horror - but had they followed the letter of the law, would only have saved a few. They're heroes.

I would be boggled insensible if this were true, and have seen abundant evidence that CPS is as incompetent as their actions suggest.

Best case: FLDS YFZ gets a non-monetary hand from the State to get their business operations back in the saddle, accepts a modicum of selected social & educational services which help them polish their worldly skills (which they now see the Lord expects them to acquire). Within a few years, 2 new FLDS communities start up operations in Texas at the invitation of their respective Counties, and within a few years after that, Salt Lake City revisits the question of marriage-arrangements, based on the gleaming record & success of FLDS.

Anonymous said...

Regarding elections and the supreme court of TX. Aren't supreme court justices appointed? If they are appointed, why would they be worried about elections? They should be worried about following the law. If anybody was worried, it would be the appeal court judges, and they obviously followed the law.

Anonymous said...

Ted, I love your best case scenario. Especially the part about Counties inviting FLDS communities. Hell, Counties around where I live have invited lignite strip mines to set up shop and they are much worse than a bunch of hard workin, tax payin polygamists.

Indeed, if things go as you suggest, and as I hope, we might even see some form of plural marriage allowed right here.

Think of the tax benefits!!!!

Think of the estate planning and probate work for lawyers and financial planners!!!

And when these people get old and frail, they'll be taken care of by their children and wives and husbands, receiving medicaid instead of paying it out to nursing homes!!!

This can be a win, win, win, and win again situation! Praise the lord.

I hope to see it happen!!

Ron in Houston said...

FYI about appellate law:

A writ of mandamus is an original proceeding in the court of appeals. This means that it's a new suit for a particular type of writ in the court of appeals.

The SCOT cannot just say "writ denied" because the writ has already been granted by the court of appeals. They can either affirm the granting of the writ by the court of appeals or expressly overrule the lower court.

They will be pretty much forced to issue an opinion if they overrule the court of appeals in its granting of a writ.

From a legal perspective it's very interesting. If it were my life and my kids I'd just want it to be over and done.

Alienated Wannabe said...

What a great blog! Intelligent commentary from the author and the readers, I love it. Thanks for all the wonderful work.

Don said...

To anon 7:11
They are elected. The people who drafted the recon constitution didn't trust ANYBODY. They wanted everybody to be elected, including the dogcatcher.

Anonymous said...

Kbp here is a name for you
Jethro J. Barlow

uncle of Lamont Barlow

Anonymous said...

Can the Supreme Court of Texas refuse to hear it at all and just let it stand? I'm not sure if I said that right, but are they required to hear every case that comes before them or do they turn some down letting the finding of the lower court stand?

The Local Crank said...

'Worst might be, CPS does have real pieces of evidence that - "Oh yeah! Here it is!" - come out at appeal.'

Evidence doesn't "come out at appeal." The court is limited to the record as it exists. Of course, that hasn't stopped Sharon Keller over at the Court of Criminal Appeals from using imaginary evidence to turn down appeals.

'Tell me how a Judge can "Conclude" that "some of these children had been sexually and physically abused", before any hearing?'

It's funny that DFPS lists an even higher standard that the one they actually had to meet, i.e. by a preponderance of the evidence that the current environment was a threat to the children.

Anonymous said...

all you stupid people on one blog.

Breakfast Taco

Anonymous said...

It's a troll It's troll ran for your life!

kbp said...

Kbp here is a name for you
Jethro J. Barlow

uncle of Lamont Barlow

Am I supposed to tie this in to Rozita Swinten, AKA Sarah Barlow?

kbp said...

Attorney Ad Litem sent in letter "as amicus curiae in support"

Not sure if it crosses the line, but it tells of what the family research showed him, and what the CPS & Walthers missed out on learning about them.

The Local Crank said...

"Not sure if it crosses the line"

Absolutely not. That is PRECISELY what ad litems are supposed to do, zealously represent the interests of their clients, the children. Though, to be perfectly blunt, some of the public comments made by the volunteer attorneys make me seriously wonder how much experience they have with family law in general and DFPS cases in particular.

Melanie said...


If CPS appeals and still gets whipped, or they fail to appeal, what does that do to their service plans? Also, what about additional documents that were signed during this fiasco, like the pledge Annette Jeffs signed stating that should would not let her daughters get married before the age of 18?

And I'd still love to know if that pledge is even legally enforceable. She basically signed away a right that everyone else in the state of TX has regarding marriage below the age of 18, and I thought you couldn't sign away rights.

Melanie said...

Crank: a lot of these lawyers don't have family law experience. I think it was kbp who pointed out an appeal for mentors for these lawyers to help them get through the process because they didn't know enough. But they were willing to help, and that says a lot.

kbp said...

Thanks Crank

I was not certain if it went too far. looking like he represented the parents! They are all family, but it's not something I am familiar with.

I recall pointing out that it was a couple Attorneys Ad Litem selected by the state or CPS that requested all the cell phones be confiscated, and I believe the article spoke of classes for volunteers.

Thanks, but I can't take credit for pointing out an "appeal for mentors", not that I recall anyway!

Anonymous said...

Why would you think the letter crosses the line?
Frankly, what would be the line in all of this?
What should someone say when six children were removed from this married couple with no specific allegations of abuse made against them?

Anonymous said...

It doesn't apply to everyone? She only wrote one order. Unless you consider those other babies taken later which have even less evidence. Now I suppose DFPS?CPS could go back to court and ask for only the families of those three (I think) teenagers with child who are under 18. But given the fact they knowingly lied the first time, how can they expect the court to believe them this time? And if they are all 17 and over is there any reason to take them? Particularly if they have a young man they are slated to marry soon? Also in light of her previous decision isn't Judge Walthers biased? That Midland judge needs a refresher course at least if he doesn't get himself disbarred for that decision. Lest he soon reconsider sua sponte, we ought give him a few days.

The DA doesn't want to appeal this: he presented lies as facts in the court: he could be disbarred right there if he takes it to the TSC. It has become apparent this week that he did it knowing full well that he was doing presenting those false ages and stats as facts.

I'll bet they go back to Walthers and have the order modified to only include the three teenage girls with child, who will be conditionally returned provided they make good progress toward certain goals like getting a GED or HS Diploma. The ranch authorities may be required to eliminate underage sex by holding mandatory classes on site for all adults and teenagers to attend. And in order to reduce the tension between DFPS/CPS and the FLDS, the court should order they find ways to pay the FLDS mothers to teach other parents how to parent young children (especially since those mental health worker praised them for it). Perhaps they can even reach a deal to emergency foster young children with the ranch mothers, though fostering teenage girls probably wouldn't be a good idea.

And I apologize for thinking there weren't any Texas courts that had the gumption to do what the appeals court did. I am glad to state that I was wrong.

Melanie said...

Yep, CPS has notified the SC that they are filing an appeal today:

"Osler McCarthy, a spokesman for the Texas Supreme Court, said Child Protective Services notified the court today that, "They will file something today."

McCarthy said the state will ask the high court to block the ruling that came Thursday from the Third Court of Appeals in Austin...."