Friday, May 30, 2008

Next steps, remaining questions in Great Eldorado Polygamist Roundup

Wow! The Texas Supreme Court's ruling that the Great Eldorado Polygamist Roundup was unjustified dramatically changes the terms of debate regarding the largest child removal case in US history.

Let's ponder a few implications of this ruling for the near and long term.

For starters, of course, the ruling means FLDS kids should be allowed to go home soon. It will be telling to see, though, if the court and CPS act with the same alacrity and disdain for detail with which they first seized the kids. My guess is that we'll see a bit more legal wrangling before that happens, mostly because of language in the opinion cited by an anonymous commenter in the last post, who added this spot-on observation, citing the next to last paragraph in the SCOTX ruling which states:
"While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR proceedings.”

Essentially, the SC puts the ball back into district judge Walthers’ court —to do as she pleases ordering ‘other appropriate relief to protect the children’ in the way of SAPCR orders (court orders on custody/parentage, etc.) And, especially, the Supreme Court particularly traps those mothers who ‘concede’–’admit’–likely being those who signed the coerced CPS ‘Plans’ – admitting they were abusive by clauses contained therein.

The best positive from the SC’s decision is it nearly forces Walthers to deal with each family individually. However, the bad news is the SC turned the whole ‘vacate the order’ over to Walthers, again,—but, qualifying that by telling her she can use other ‘appropriate protective’ measures.
That seems likely to me, which would mean there's a lot more lawyering yet to come. By all accounts Judge Walthers has behaved defiantly in the wake of the Third Court's ruling, hoping to justify her decisions instead of accepting that they were wrong. I don't expect that to change soon.

But there's another implication to this development that I find amusing and ironic. Texas CPS argued to the Supreme Court that the main reasons they couldn't return kids to their families were that they couldn't identify their parentage (despite the fact that they'd matched kids to parents in court and they didn't bother matching kids with parents when they seized them), and that if CPS released the kids, their families constituted a flight risk.

As a result, FLDS women's attorneys argued that the court had authority to use less punitive means to restrict families from leaving the jurisdiction, and the Supremes agreed; that's what gives Judge Walther the extra leverage mentioned above.

However, for the locals like Sheriff Doran and Judge Walther, IMO the real purpose of the raid was never to investigate child abuse but to run the YFZ Ranch residents flat out of the region. (This goal has frequently been openly discussed, including suggestions that the entire ranch's assets be seized to pay for CPS' boondoggle.)

After the women and kids were all gone, media accounts described the YFZ Ranch as nearly a "ghost town." But now a court order and CPS restrictions will REQUIRE them to stay in one place instead of going back to Arizona, etc.. Probably, even more sect members will join them, since these folks can't leave and the only FLDS temple is at the ranch. With FLDS recently ordering hundreds of voter registration cards, and court proceedings possibly stretching on for years, I predict the ruling virtually guarantees a huge FLDS voting bloc will henceforth act in Schleicher County to oust the politicians who sponsored this mess.

In other words, the raid likely has facilitated the future takeover of this West Texas community that locals had feared but which heretofore never actually occurred. If I'm right that the real goal was to remove them entirely, then this whole operation really backfired. If we don't see a wave of politicians in that county over the next few years named Jeffs, Barlow and Jessop, I'll be darn surprised.

After the Third Court of Appeals ruling, I posed several questions, some of which still remain unresolved in the wake of yesterday's result.

What does this mean for families that already signed CPS "service plans"? Will those be deemed invalid since the child seizures that spawned them weren't justified?

Similarly, if the judge had no authority to order the children's seizure, does that mean she also had no authority to order the much-ballyhooed DNA testing, results of which are expected back soon? What happens with those results?

Another still-unanswered question: "if CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?" It seems likely, but I don't know.

What happens with the 90 new staff positions CPS got approval for in order to handle this case? Will the Legislature still allow them to move forward with those new hires, or will they shut down the expansion?

Perhaps most critically, when will the press investigate the pre-raid machinations that launched this fiasco? When will we hear the story of Rozita Swinton, the hoaxer whose phone calls started the mess? She's been incommunicado now for nearly two months. I want to know how she latched onto FLDS, who she spoke to before the incident, and when someone first figured out she was faking. Why hasn't she been charged in the YFZ case? Why haven't we heard her story?

All that said, yesterday's ruling was a mitvah and a blessing. Guy over at Messenger and Advocate offered this eloquent statement about the ruling's larger meaning for the nation and the Constitution:
I suppose in part it means, that the Founding Fathers, back in the day of this country’s infancy, were indeed inspired men, raised up by God to enshrine God given rights in our Constitution and Bill of Rights. In part it means that the rule of law is still paramount even today, even when a state is investigating an extremely unpopular religious movement. In part, I think it means that we should be grateful that the passions of the moment are subject to later review by cooler and calmer minds.
He's right; we should be grateful. So let me say formally, "Thank you Texas Supreme Court. ... Thank you Third Court of Appeals."

As egregious as the state's actions have been, you provided a constitutional backstop that limited the damage and protected individual rights. Today I'm proud of these members of the Texas judiciary. Let's hope Judge Walthers pays attention to what they've told her.

UPDATE: FLDS kids will begin returning home Monday.

NUTHER UDPATE: Judge Walthers added extra conditions that may delay the kids' return. More appellate filings expected. The Lone Star Times says FLDS was 'Walthered' again.


Anonymous said...

"Although the SAPCRs involve important, fundamental issues concerning parental rights and the State’s interest in protecting children, it is premature for us to address those issues." - Does this speak to the issue of DNA testing and such? It would seem that the court is suggesting more needs to be considered and it will hear those items in a if-you-can-figure-out-what-we-mean type invitation.

TxBluesMan said...

As far as I am aware, there has been no challenge of the DNA orders, although not surprising me at all, many of the alleged fathers did not comply.

rericson said...

I just posted a similar set of questions on Brooke's blog....although certainly not as well written....
Putting aside your own beliefs....since you are our resident jurist...
What happens to all of the documents, etc. that were seized in the raid?
Are they "fruit of the poisonous tree"? What about all the DNA collected? Obviously, had the children not been in custody, many would have refused the testing and waited on exhausting the judicial is that also "fruit of the poisonous tree"?
If you were arguing 'for', rather than 'agin'...what would your current 'take' be????

When will the children start coming home?
Will the Court be able to force some of the fathers to leave, first? Or, beyond the initial scope...the call from Swinton, is everything else 'fruit'...and do they have to start at 'ground zero', and move forward as though this hadn't occured?
What's your 'take'????"

I just want to add my voice to the many that are hoping this is a wake-up call across the nation that Child Welfare authorities need to really speed up the process of 'transformation' in this broken system.

kbp said...

This opinion of SCOT, along with the 3rd's, has nothing to do with anything seized in the search at the ranch.

Unknown said...

Yes, thank you Supreme Court and 3rd.

I have this feeling that it is a hollow victory, but it is a victory nonetheless.

And, I'm buying the next round. ;-)

Anonymous said...

Where I come from (the deep-country tradition Judge Walther may figure she is guardian to), the Honorable Judge would/is said to have "bit off more than she can chew". Strictly/simply on logistical grounds - just like the saying says.

As my Chemistry Prof like to say to my wilder flights of scientific speculation, "You can only do what you can do".

Indeed, the original breakdown of justice in this case and the ongoing gnashing & rending, all stem directly from the fact that the main actors "eyes were bigger than their stomach".

That is still the situation, the driving & determining fact-set. Nothing in the wonderful 3rd Court of Appeals' decision or the Supreme Court of Texas' affirmation of it changes the raw physics of the irrational overreach that obliged the Judge, the CPS, and several local figures in Schleicher Co. to imagine themselves immune & exempt to the boorish facts of reality.

In doing so, these actors placed themselves on a psychological slippery slope. They are drawn in a fantastic - literally - interpretation of their situation & actions. When things begin to go awry, it's somebody else's fault! They slip into "denial", which is a potent neurotoxin. Arrogance wells up the craw, and they are further compromised by its blinders. When this condition is mocked, they descend into anger, and finally a chronic, seething, festering "I'll show you!" agenda to achieve vindication.

It's in the nature of the beast.

Sure, Judge Walther can & I expect will go on trying to "show" those danged FLDS (and of course, the whole world, before which she has now been humiliated).

But as this post notes, the FLDS have been restored to a position of strength. Now, they will grow and mature. The Judge will win some battles, but she won't be able to inflict damage that YFZ (and perhaps others like it to come?) can't absorb & be the stronger for.

The stuff of Shakespearian & Greek classics, right here in our daily news...

TxBluesMan said...


kbp is correct, nothing will happen about the seized documents due to this decision.

I would anticipate that the Court will vacate the Emergency Removal Order today or tomorrow, concurrently with additional orders to protect the children. I would anticipate orders prohibiting the removal of the children from the jurisdiction, perhaps prohibiting unidentified (by DNA) males from residing with underage girls, a requirement that the alleged parents to submit to the previous order for DNA, a requirement to cooperate with CPS investigators, etc.

Nothing is ‘fruit’ – this was a petition for mandamus, not an appeal of the search.

Also, nothing in this decision ends the case or investigation of child abuse by CPS. CPS will be coming back at the parents, and we will continue to go after the offenders.

rericson said... al....
I may be remembering things out of order...if so, I appologize...
I seem to recall that they went in first...took some children and mothers out....then went back, and that's when they started seizing things....
It was in the second trip, when they ostensibly had a warrant...based on the earliest interviews and what they claim to have 'seen' on their first trip....
So wouldn't that make all the pictures and documents, such as the "bishop's list" fruit of the now to be 'vacated' order(s)????

Maybe the state can use some of the allocation for new hires to actually get a full complement of folks trained in Family Group Decision Making....
If I were an advocate in this mess, whether representing a child or a parent, I would be insisting on the use of FGDM.....and I would be insisting that the FGDM facillitators be trained specifically in the aspects and nuances of this culture germaine to adequately and appropriately facillitating the process...and I would want to see documentation of the development of that expertise...including having hired consultants from the FLDS to assure the viability and authenticity of the cultural competency training...
And, since we are in the middle of a national move to eliminate the use of restraints and COERCIVE practices in children's services, this iwould be a great time to point out to the court the coercive nature of the service plans that were signed...and get on the record how they fly in the face of all models of best, or even good, practice....ergo should be vacated....

Then we would expect that one of the services that CPS will be providing to these families is a treatment package to address the trauma that the families have suffered....this should include, but not be limited to culturally competent clinicians with expertise in treating trauma.....assumtion by the state for any costs incurred for the treatment of the trauma.....and some out of the box thinking/strategizing with the parents as to how best help, based on THEIR culture and needs....

It would also seem that a mechanism should be put in place to allow the parents to claim reimbursment for any costs incurred by them as a result of this expenses...gas, lodging, loss of work....
And what costs have the larger FLDS community incurred.....

kbp said...

"...a requirement that the alleged parents to submit to the previous order for DNA".

On what basis?

rericson said...

so....sorry for being so wordy.....
So, what you're saying is that Legal Aid or some other advocate, or group of advocates, should be filing a motion to quash all of the 'fruits'?????
Would that motion start with the district court, or would it go to the third circuit????

kbp said...


Any Search Warrants and the taking custody of the children are separate issues.

The custody was based on alleged acts / evidence observed while at the ranch.

The SW's on cause noted in the affidavits, which is another topic that may end with the evidence being suppressed.

Time will tell if any have reason to challenge anything taken by use of those SW's.

kbp said...


I should add that until there are any criminal charges, there really is no reason to challenge the SW's and any "fruits" they produced.

TxBluesMan said...

First, you have to have an actual controversy. The rules for civil cases and criminal cases are different and the exclusionary rule applies to criminal cases, not civil cases.

The CPS action is a civil action, not a criminal case.

It won't be until a criminal case comes up that the issue will come up - and even then, generally the evidence can still get into a civil case.

And yes, the motion would go to the trial court.

Ron in Houston said...

All the decision really means is that the emergency removal of the children is overturned. It doesn't end the case or invalidate CPS family service plans.

The FLDS will have CPS more in their lives than before since CPS will need to monitor the children placed back at the YFZ ranch.

The irony is that non-cooperation with the family service plan can be grounds to terminate parental rights or to pick up the children from that family.

It sort of reminds me of the Borg from Star Trek Next Generation, "resistance is futile."

Anonymous said...

How does the Texas taxpayers like paying for CPS screwup? It's just at a couple of million right now. But when its over with. . . .

kbp said...

Ron or Anyone

I won't dispute that the Family Service Plans , will still be in effect, but if you read them (boilerplate they said), there looks to be a great deal of it based on an order that will not exist soon.

All I dug through in the codes was mostly what might be related to the 262.201 mess that was going on. The SCOT opinion seemed to hint more at any action the "court" (Walthers) could take was under other codes.

Not all would sign the plans, nor were the status hearings completed, so many did not have a chance to sign on the plans.

It seems like the only way those "family service plans" can work is if they are at least amended and/or a new order includes them.

rericson said...

ron in houston, et al....

Because there are going to be a slew of service plans...or most likely will, it is crucial for folks to understand the concepts behind "family centered planning"...and especially Family Group Decision Making....and not some bastardized version of it....

In a nutshell, a trained facillitator works with the parent(s), and the child , if the child is old enough, to identify who the people are that they want to have as part of the group assisting them in making plans for their child and family.....CPS, in turn, tells the facillitator the safety provisions that need to be addressed in the plan....
The facillitator then brings the group together....usually with a meal, or something that puts everyone at is done either in the home, or at a non-threatening site...a church, or other community place....the group talks about the whole gamut of issues that need to be covered in the plan....the family has time to go off by themselves and talk/think....the group identifies who will do what in the plan...what are the timelines, etc. and as long as the safety issues identified by CPS are addressed, the plan is written up and that becomes how business is done for that family....the plan can include monitoring, therapy, education, recreation, respite if needed, anything and everything that a family may need to make a reasonable life in their household and assure the safety and well being of the children...and the family gets to yea or nay any suggestions...and CPS , or any other governance must abide by it.....
FGDM stated in New Zealand with the MAORI group....not dissimilar issues to what the FLDS are experiencing...
It has grown from there and is now considered the 'gold standard' in child welfare...but it is a complete paradigm shift in that it puts planning and responsibility in the family, with the parents....and it is doing for onesself, not an agency dictating and doing it's a difficult shift for traditional child welfare folks to assumes that the family will rise to the level of expectations and that families are strong, resilient, and will do good for their children if given ownership of planning and the tools to make the plans happen....

The stakes are very is abjectly necessary for the lawyers in this toounderstand the types of practices and services that are, or should be available....and not negotiate down to 'business as usual' as usual doesn't work, which is the genesis of the national move toward transformation and change....

Anonymous said...

Eugene Volokh thinks that the grounds for the dissent in the SCOT decision was that the dissenting justices tacitly accepted the definition of the ranch as a a single household.

As a side note, President Bush met with the head of the Mormon Church in SLC.

Barney Smellcash said...

Grits, When did the total of new staff hires at CPS rise to 90? I thought it was 70?

Gritsforbreakfast said...

Dear Mr. Smellcash (great handle!):

Here's a pdf of the document the agency presented to the Senate Finance Committee. See p. 12 for the list of staff positions. It's actually 96, looking at the document again. They wanted 70 field staff, ten attorneys, and 16 various other positions.

Pinkycatcher said...

I just wonder what the DA will do, if he wants to keep his job he most likely won't prosecute for bigamy. But I think most would agree with him prosecuting for sexual assault etc. I wonder if he's going to go along with what the sheriff (if I remember correctly) said and prosecute the polygamists.

I think the gvmt. needs to cut their losses and try to interact more with these people much like Arizona and Utah, that was CPS is actually effective in getting abuse out of the culture rather than making them more secretive. Hell the town should throw a huge BBQ once the kids are back.

Ron in Houston said...


It will be interesting to see CPS' next moves in this case. There are so many options at this point that it's hard to predict. The children will still be under the jurisdiction of Judge Walther. It's just that instead of being spread out in foster homes across the state, they'll be at the YFZ ranch. I'd predict that some children will be immediately re-removed with new show cause hearings to validate their removal.

It's still going to be a titanic struggle because it really comes down to a fight over "pervasive belief systems." CPS pervasive belief system is that the FLDS belief system is basically a form of child abuse.

Make no mistake CPS is like a pit bull. Once the latch onto something, it's almost impossible to get rid of them.

Ron in Houston said...


I think your paradigm of family centered planning makes a lot of sense. I'm hopeful that CPS will at some point come around to understand that their way of handling cases often causes more problems.

CPS operates on the "we know what's best" paradigm. They seek to impose their will rather then trying to help families find ways to work through issues.

kbp said...

Court sets hearing for 2 p.m. in FLDS matter

Anonymous said...

txbluesman said here:

"My own mea culpa is on my blog,"

Here is what he said there:

"Obviously I was wrong when I believed that the Supreme Court of Texas would rule to protect the children of the FLDS."

blueman speak with forked tongue.

don said...

Scott: The question about Rosita and her scarcity, I think, can be answered like this. The authorities have never acknowledged the call was a hoax. They still say they are "investigating the possibility" that it was. You, I, my 10 year old nephew, God, everybody knows it was a hoax, who perpetrated it, and all. But. . , when they admit it was a hoax, they will also have to admit they knew it was, or should have, from the beginning. Which they simply cannot do. So they are still trying to figure out how to handle this. They are between the proverbial rock and hard place. They will either have to admit it was a hoax, or they made not even the slightest of a cursory effort to investigate it, even while they dithered for 5 days. I think that in the midst of the excitement of the past few weeks, this issue has not been pushed as much as it now will. How can you see them answering, when somebody with clout starts asking the hard questions?

Anonymous said...

Last night Nancy Grace spoke of "facts" after the courts ruled there was insufficient evidence to support those "facts." Some of her rants were more than opinions, and since she is a lawyer and former prosecutor, her alleged "facts" carry more weight than other commentators who state opinions. One glaring example is the "fact" that FLDS used a bed in the temple to consummate underage marriages.

I'm really, really hoping someone in FLDS sues her. Too many have lost their lives due to her unsubstantiated rants.

don said...

In all the celebratory excitement, which I gladly join, it is troubling that many people seem to still be ok that people who haven't done anything wrong will still be required to "cooperate" with CPS. That the bogus "service plans" can still be in effect, or others will go into effect. That people who were blackmailed into signing them will still be held accountable for whatever is in them. Not being a lawyer, I can't see why EVERYTHING that came about as a result of this illegal raid wouldn't be "fruit of the poisonous tree". Disturbing.

Anonymous said...

Re: Rosita.

My bet is that she is in a mental hospital somewhere. The state got rid of her by agreeing to drop the charges if she sought help. Ideal.

kbp said...


If there are criminal trials, Rozita will be in the news again.

Meanwhile, keeping Sarah alive also keeps alive the fact that authorities have a possible double murder victim to search for!

What happened to Sarah?

Anonymous said...

TxBluesMan said, "My own mea culpa is on my blog."

Doran Williams said, "blueman speak with forked tongue."

What the Obama-Clinton campaign shows us (reaffirms) is that for a really good contest, you need two really closely-matched, really good contestants. It puts an extra zing on the drama, if one contestant 'misunderestimated' the other, or similarly if the audience was relatively uninformed about one (or both..).

It's the same principle in the FLDS case. It wouldn't be dramatic, if the circumstances weren't so close to an Immovable Object and an Irresistable Force.

Continuing the analogy, champions of each side in this contest have made basic 'read-errors', misjudging key factors scattered all over the case-map.

Here on GritsForBreakfast' blog, it is the norm to cheerlead for the FLDS/YFZ (guilty! ;). Reading the threads here, you could think there is relatively little doubt about the values at stake, or the likely outcome.

That would be a mistake. TxBluesMan does this forum a very good turn, helping us avoid undue mutual-flatter and over-confidence on matters that are less certain than the 'stacked room' dialog might lead some to imagine.

Anonymous said...

The Texas Family Code requires review of the Department's service plans by the court in a status hearing within time periods prescribed in the statute. Tex. Fam. Code Ann. � 263.201(a) (Vernon Supp. 2005). In its review, the court shall review the plan for "reasonableness, accuracy, and compliance." Tex. Fam. Code Ann. � 263.202(b) (Vernon Supp. 2005).

Maybe the court will have to re-review the plans given the new conditions. Also, a cursory search of Texas cases indicate that transcripts of the proceeding are not preserved unless requested.

A case, quoted above, with a general overview is here. Sometimes it is best to know why a parent lost and avoid those pitfalls.

Anonymous said...

Reminds me of Antelope, Oregon in the 1980s when cult leader Bhagwan Shree Rajneesh and his followers moved onto the Big Muddy Ranch and took political control of the city.

If this doesnt work to get the FLDS to leave town they'll start arresting them for tax evasion.

Anonymous said...

Based on info from the raid, the State of Arizona has issued a warrant for buccal swabs from Warren Jeffs, who is now in jail inn Kingman, AZ. The alleged crime is sexual contact with a minor at the FLDS ranch.
I am curious about the cross-state (interstate?? warrant, especially since Arizona does not have any jurisdiction) Not sure i have heard of before. Does anyone have a comment ??.

Anonymous said...

Ted Clayton, you raise an interesting point about the 'stacked room.' It is time for SCOTUS to revisit its 1st Amendment rulings on pending cases. The remedy was once a change of venue, but given the nationwide media and instantaneous spread of sound-bites, does the government have free speech rights to claim broken bones, molested boys, exaggerated claims of pregnancies and beds in temples used to consummate child abuse marriages?

I don't think the 1st gives the government protection that broad. Given the government's lust for trial by media, maybe it shouldn't have any protection at all in pending cases.

Ron in Houston said...

Ted Clayton is right. You shouldn't give txbluesman a hard time. He's provided a lot of good information on this forum.

All the Supreme Court really said is that the declaration of a fire was premature. However, it's not like there is no smoke in this case.

This whole matter is quite far from being over.

Anonymous said...

Kevin Kearney, is there any information on if the "spiritual marriage" to the 12-year-old in the pictures was consummated? I'm not even sure what a "spiritual marriage" is in fact. Maybe it is a marriage in the usual sense of the word, including sex, or maybe there is a waiting period until the child is old enough. In other words, is the crime "spiritual bigamy" or is it sexual abuse? Evidently CPS wants to prove he fathered some children while the mother was under age. Even if so, that is no proof against everyone else.

Anonymous said...

The 3rd said "the declaration of a fire was premature" as well. That is nothing new.

Anonymous said...

Fred said:

"I don't think the 1st gives the government protection that broad. Given the government's lust for trial by media, maybe it shouldn't have any protection at all in pending cases."

I had the impression that the Bill of Rights applied to individuals, not to the government,

On thing that Britain has is strong laws against sensational coverage of trials, at least while they are in progress. If some tabloid printed some of the crap that has been on the MSM, HM government would be all over them.

I also agree that TBM's presence has been good. His quotes from the family Code has saved having to slogg through it looking for the relevant statutes.

TxBluesMan said...


The first search warrant was for ‘Sarah,’ based on the anonymous phone call (almost certainly by Swinton) and the corroberating information gathered by Ranger Long. Thanks to Brooke Adams publishing excerts from the arrest warrant affidavit for Swinton, it now appears that law enforcement were acting in good faith, still looking for ‘Sarah’ after the children had been removed from the ranch, and apparently not realizing that Swinton was behind the calls until sometime after April 10th (note that the order collecting the cell phones came out on 13th).

The second search warrant for the documents, other children, etc, came after CPS investigators and law enforcement officers had been on the ranch under the authority of the first warrant. Removal of the children started at this time.

As to the use of the ‘Family Group Decision Making’ teams, whether the parents or the GALs demand it or not, it won’t happen unless ordered by the court.

And the reimbursement of costs to the family? Ain’t going to happen in Texas....

Plus, Ron is exactly right – lack of cooperation would be grounds to remove the children. So when the CPS investigators go to the ranch, and are turned away, all they have to do is trot back to the judge and get another order. I also don’t think that CPS will change the way that they approach this.

The service plans will be changed somewhat, but not in the ways that you are hoping for.


The order for DNA testing is authorized under FC §160.502 et seq. The refusal of an individual to comply with the order are grounds to the court making a finding adverse to the refusing party, i.e., prohibiting contact or by finding the refusing party in contempt of court.


I was wrong – sorry that you don’t like the way I phrased it, but the bottom line is that I was still wrong. Happy now?


Thanks, although we disagree on the main issue, I appreciate your kind words.

rericson said...

Bluesman's role here exemplifies, in many ways the role atty's are oft in.
Their charge is the law...subject at times to interpretation, again, usually by attys....
"Just the facts, M'am..."....but family law is about the human condition at its most vulnerable. And while the law sometimes attempts to recognize that, ore often it falls short....
And atty's, while well versed in the law, often don't know their ass from their elbows about good, or best, or evidenced based practices for families and their they assure the law is respected and upheld, but they get snookered into really bad positions for the families...and, at the end of the day, the attys go home....and the families have to deal with the detrius of the law.....

Human services are full of buzz words and catch phrases that one needs to be on the inside to understand...I've talked before about how CPS has it's own language....
Again, as I've said before, the FLDS would serve themselves well to hire an external consultant who is knowledgable in the child welfare, children's behavioral health service spectrum...and knows how to read the code, apply practices to it, and help them give their attys the info they need to develop questioning, as well as to develop alternative service plans that will pass muster.....

Anonymous said...

Evidently CPS wants to prove he fathered some children while the mother was under age. Even if so, that is no proof against everyone else.

I disagree. This pervert prophet expresses his beliefs about pre-teen bigamy to his flock and they stay with him and offer up their own sister/daughters.

rericson said...

Family Group Decision Making is cited in the policy manual of CPS as the way to don't you agree that the attys and CASA folks should hold them to that?

Anonymous said...

I appreciate tx's comments here, as they are useful foils for making points that might not otherwise be made.

But c'mon, tx said he posted a mea culpa on his site. What he posted was not a mea culpa, it was a snide, sarcastic comment on the Supreme Court's opinion.

That is why I said he speaks with forked tongue.

Anonymous said...

If Judge Walther doesn't want to get snookered again, she might want to read up on "Family Group Decision Making".

TxBluesMan said...

Apparently things are going to get more interesting.

The search warrant affidavit for Jeff's DNA shows that there is evidence of:

The marriage of Jeffs to a 14 year old female in Schleicher County on 7/22/04.

The marriage of Jeffs to a 12 year old female in Schleicher County on 4/16/05.

The marriage of Jeffs to a 12 year old female in Schleicher County on 7/27/06 and a corresponding Aggravated Sexual Assault.

The affidavit states that there is evidence of the following crimes by Jeffs in Texas:

Sexual Assault of a Child,

Aggravated Sexual Assault,

Bigamy, and

Prohibited Sexual Conduct.

The last charge is commonly known as Incest. Although not listed, the multiple counts and the time frame would also support a charge of Continuous Sexual Abuse of a Child.

Anonymous said...

There disjunct in family court because CPS is always "best interest of the child" but the case law doesn't really support the view of "best interest of the child" when it is in conflict with the interest of the birth parents.

Just think about it and it makes sense... it could be in your child's subjective "best interest" to be adopted by Bill Gates, Michael Dell, or Daddy Warbucks... and they have the attorney's to prove it.

Anonymous said...

Continuous Sexual Abuse of a Child is 21.02 Penal Code

... it is a felony of the first
degree, punishable by imprisonment in the Texas Department of
Criminal Justice for life, or for any term of not more than 99 years
or less than 25 years.

I wonder the cult will disband if they send this perv away for life.

Melanie said...

BREAKING NEWS 2:46 Cntral:

SAN ANGELO, Texas (AP) -- Texas authorities and a polygamist sect have reached a tentative agreement to begin returning children taken by the state starting Monday.

A draft agreement released in court by Texas Child Protective Services attorney Gary Banks on Friday said the parents can get their children back after showing identifications and pledging to take parenting classes and remain in Texas.

I guess CPS and Walthers finally decided to drop the "but the IDs might be fake!" argument.

SB said...

We know that on April 16 Rangers assisted in the arrest of Swinton but she has been charged with nothing in TX although records trace back to her phone.
I never heard anything about cell phones being seized in connection with the hoax call. It was done to keep these women from commicating with one another.
The state knows if this underage marriage was ever consumated. They did exams. If Warren Jeffs is guilty of this it should be prosecuted like his other crimes.
Much has been discussed about the DNA testing. When te results come in what will authorities know that they don't already know? I see this as something else that can blow up in CPS faces.
I am not a lawyer but I do know right from wrong so I agree with Don. FLDS has a right, or should have, to get these blood suckers out of their lives. If they do not have that right we have a clear indication where change should begin. Lawyers talk law and I talk treating others the way I want to be treated. Any wrongs that can be proven against FLDS will be punished. Two courts have pointed out the wrongs done by the state and nobody is talking about punishment. These things keep happening because there is never any punishment for the state or federal officials. Our butts belong to these bullies and they can do with us whatever they please. This is not a position I am comfortable with.

Ron in Houston said...

Ron's Rules of Life 101

Whenever you revere a child molester as a prophet, you're going to have problems with CPS.

Anonymous said...

Apparently things are going to get more interesting.

The search warrant affidavit for Jeff's DNA shows that there is evidence of...

Warren Jeffs......

.....that's a guy that is already in prison, right?

Gritsforbreakfast said...

Bluesman, where'd you see that search warrant affidavit? Gotta link?

Gritsforbreakfast said...

Never mind. Found the affidavit here.

Headmistress, zookeeper said...

Jeffs getting his DNA samples drawn:
"The samples were taken as part of an investigation into whether Jeffs sexually assaulted four girls at the sect's Yearning For Zion Ranch near Eldorado in January 2004 and July 2006. Placed on the FBI's most-wanted list in May 2006, he was arrested outside Las Vegas that August.

Investigators have wedding photos and church records indicating he had spiritual unions - marriages recognized by the sect but not legal marriages - with four girls ranging in age from 12 to 14, according to an affidavit filed by Denis Gilbert, an Arizona officer aiding Texas law enforcement. At least one girl conceived a child at 15, the affidavit says.

Under current Texas law, girls younger than 16 cannot consent to sex or marriage. However, before 2005, Texas law allowed girls as young as 14 to marry with the permission of their parents.

In CPS speak, we've noticed that 'at least one' means, "We think we have one if we did the math right," but I don't want to make light of this- it's tragic if these four girls have been assaulted by Jeffs.
But one pregnancy out of four girls - and that one not until she was 15, doesn't seem like these marriages have a high probability of having all been consummated.

Meanwhile, he's been in jail since 2006, so none of the girls were in any immediate danger from him.

My guesses, and it's only a guess, about the incest- I would guess JEffs is married to a mother and to his step-daughter. There was a 14 year old CPS said was pregnant, who turned out not to be. Her Attorney, Sloane, worked hard to get that nonpregnancy put in the record. She was the youngest girl CPS had in their their 31 pregnant minors. If, if, and if, all that is so, then maybe CPS wanted her to be pregnant so badly because they knew she was 'married' to Jeffs.

kbp said...

FLDS children could be returned to parents starting Monday

Melanie said...

I'm curious about the same question as commenter Kevin: the affidavit is from an AZ police officer, who is assisting TX police, but the first "marriage" to the 14 year old took place in UT. I don't believe it says where the baby (of that first girl mentioned) was born. As for the 12 year old, if she never bore any children, and if she and the parents won't testify against him, so far all the state's got is that photo, as far as we the public know. There may be more.

San Angelo News has updated the news report about the return of the kids:

Walther's proposed order stated that all the 330 children affected are to be returned to their parents starting at 8 a.m. Monday, with all children returned no later than June 6. That's provided that the parents meet conditions Walther imposed under the proviso of the Supreme Court opinion that the district court "may make and modify temporary order for the safety and welfare of the child."

Parents will be required to submit an affidavit identifying the children of whom they take possession, and both children and parents will be photographed at the time.

Parents will be required to take parenting classes as arranged by the Department of Family and Protective Services. The order also requires cooperation of parents in any investigation of child abuse or neglect, and gives CPS right of unannounced home visits any time between 8 a.m. and 8 p.m.

The parents are not allowed to remove the children from the state effective through Aug. 31.

It's not clear why the number of children included in the proposal is 330. The Supreme Court's ruling immediately affects about 125 sect children of about 40 mothers.

Headmistress, zookeeper said...

I would agree with Doran, TBM' 'mea culpa' looks like the sort of Mea Culpa you get from an 8 year old boy when you tell him to apologize for telling his sister she's ugly, and he says, "I'm sorry you're ugly."

From GoSanangelo:
Walther's proposed order stated that all the 330 children affected are to be returned to their parents starting at 8 a.m. Monday, with all children returned no later than June 6. That's provided that the parents meet conditions Walther imposed under the proviso of the Supreme Court opinion that the district court "may make and modify temporary order for the safety and welfare of the child."

Parents will be required to submit an affidavit identifying the children of whom they take possession, and both children and parents will be photographed at the time.

Parents will be required to take parenting classes as arranged by the Department of Family and Protective Services. The order also requires cooperation of parents in any investigation of child abuse or neglect, and gives CPS right of unannounced home visits any time between 8 a.m. and 8 p.m.

The parents are not allowed to remove the children from the state effective through Aug. 31.

It's not clear why the number of children included in the proposal is 330. The Supreme Court's ruling immediately affects about 125 sect children of about 40 mothers."

Pinkycatcher said...

I would hate that "gives CPS right of unannounced home visits any time between 8 a.m. and 8 p.m." that I don't like, I can see the reason behind it, I just don't like the government giving themselves the right to come into someone's house whenever they want.

As far as the 330, I think Walther's finally said "fine, these kids are gonna appeal, might as well speed it up so CPS and I don't look horrible in press."

I figure when you're in Texas and you get a Supreme Court decision saying you overstepped your bounds as part of the government, people start rallying against you, people in Texas historically don't like a powerful government. That's why the Govna has so little power, and why our state gvmt. is so large, to spread out the power.

Anonymous said...

I just wish these people would leave Texas. Why stay? Arizona and Utah have already proven they don't care if they f*ck children as long as they aren't too public about.

I don't care about people's religon, but there ought to be some rule that if you think its a good idea to bring your child up in a religon where the leader f*cks kids and preaches about how great it is, you're too stupid to have a child. Then again, you're never too stupid to legally have a child are you?

God be with those kids. They need it.

SB said...

They are doing a lot of things right so I hope they would not disband. There have been statement that Jeffs was taking brides who were younger than the norm. I don't know what history shows.
The FLDS needs to do a lot of thinking and discussing and figuring how it would impact their lifestyles if they adopted the same laws as the state.
The age limit was changed to 16 because of FLDS and the desire to destroy them. If that were changed back to 14 maybe all would agree to abide by it. The change back would also cut down on the number of unwed mothers outside the compound. Vengeange laws do nothing but destroy but that is often the ultimate goal.

Anonymous said...

Lest anyone think that completing parenting classes is easy, I personally know of a case where all either of the parents had to do was finish parenting class to get back their baby, who they were not providing enough milk (or formula). The baby weighed the same about the same at 4 months as at birth. But 4 weeks later she had added about a pound a week (4 pounds) in the emergency foster home. Neither one of her natural parents completed the parenting classes.

TxBluesMan said...


Sorry, I should have posted the link to the affidavit.


If the state has, like it appears they do, evidence of a ‘spiritual’ marriage to a 12-year old girl while Jeffs was already married to another, than he is pretty much toast as far as a Bigamy charge, regardless of whether the girl and/or her parents testify.


OK, so you agree with Doran. I’m sorry that the sister was ugly. Geez.

rericson said...

I hope that the attys assure that the parenting classes are culturally appropriate, and not some cookie-cutter, boiler-plate curriculum....
They also need to offer the classes at a time and place that is convenient for the parents....
Perhaps offering several sets of classes at different times so the mothers can trade off child care responsibilities for each other....
And the classes need to be based on age appropriate parenting skills based on the age(es) of the children that a given set of parents have.
You don't teach positive reinforcment while potty training to parents of teenagers.....

Also, I know I'm not the sharpest knife in the drawer, so could someone please explain the different numbers to me....the total number of children taken into custody and the 300+ addressed the 300+ the number less the ones specifically covered in the circuit decision???....and will all 460+ be allowed to return to the ranch, including those now living in alternative arrangments???

rericson said...

bluesman did a reasonable 'mea culpa'...he just didn't get to the 'mea maxima culpa' part....but humble pie by any other name.....

'sides, he wouldn't be bluesman if he ate too big a slice.....we'd think there had been some sort of identity theft....or obfuscation....

Anonymous said...

If they leave town after this pervert thing passes the state will be after them for the kids being truant from school, and then for child labor violations, and then for tax evasion. Best just go back to Utah.

Melanie said...

Anon 4:26:

They can't get them for truancy, because the children are homeschooled, and thus, not regulated as to attendance. (They are considered private school students.)

Headmistress, zookeeper said...

Oh, don't get me wrong. I thought his apology on behalf of the SCoT was amusing.
But then, I have a 9 year old boy...

blog648 said...

anonymous 4:26

I don't think it's illegal in Texas to home school your kids, even if you're FLDS.

The YFZ ranch is something like the 3rd or 4th largest taxpayer in the county. There goes your bogus tax evasion complaint.

I expect the FLDS will throw Warren under the bus, and whoever else is convicted of sexual assault on a minor, and go on with their lives.

I expect they'll register to vote, too.

Melanie said...

"If the state has, like it appears they do, evidence of a ‘spiritual’ marriage to a 12-year old girl while Jeffs was already married to another, than he is pretty much toast as far as a Bigamy charge, regardless of whether the girl and/or her parents testify."

Thanks, TBM. New question - unless the girls he "married" in TX have had children (and there are no references to children by them in the affidavit, only the 14 year old who was "married" in UT) then why do you think they are named in the affidavit for the DNA warrant? They're not going to get any bodily samples off these girls at this date.

SB said...

"If they leave town after this pervert thing passes"

What pervert thing are you talking about?

Heather Dixon said...

This probably won't happen, but I hope the YFZ people sue the holy crapoly out of the CPS.

Anonymous said...


Yes, Gov can say the kids had broken bones. Half of all boys and a quarter of all girls break bones. Yep. And they found a bed in the Temple and - omg! - it had a female hair in it.

Gov didn't say, "We saw 'em twisting their arms backwards". They didn't say, "We saw 'em poundin' girls in the Temple bed". No, those versions only happened in the imagination of the listener.

It's bait, Fred. Older 'n the hills. It may be whiff (works better if it is), but it's not a Free Speech issue.

kbp said...


"...arrest warrant affidavit for Swinton, it now appears that law enforcement were acting in good faith, still looking for ‘Sarah’ after the children had been removed from the ranch, and apparently not realizing that Swinton was behind the calls until sometime after April 10th (note that the order collecting the cell phones came out on 13th"

So, after waiting five days to save Sarah, the fact they were looking for THE "Sarah" that made the calls indicates they were NOT AWARE of the fact Dale never existed at the ranch, therefore Sarah the wife of Dale never existed there, but they were acting in good faith because...?

Maybe because "Sergeant Mandel was aware that the phone number (deleted by Brooke) that was possibly related to the reporting party for the YFZ Ranch incident in Eldorado, Texas, was also identified in a prior CSPD case report." and Mandel might not have known this before...? and we're certain he was not investigating to find a prank caller because...?


Since "Texas Ranger Brooks Long had advised ... that a series of telephone calls were made to the Newbridge Family Shelter beginning March 29, 2008... Sarah Barlow described Dale Barlow as both physically... abusive... currently residing at the Yearn For Zion Ranch located in Schleicher County, Texas..." Long had explained away knowledge of husband Dale's absence prior by way of...? and he was not worried about interviewing the shelter worker that spoke to the Sarah until two days before the raid because...?

TBM, I see nothing that proves that claim.

Melanie said...

The Trib has updated to saying that 450 children will be returned starting Monday, and outlines further travel restrictions on the families:

"SAN ANGELO, Texas - Another proposed order has emerged from a crowded courtroom today, further restricting the movement of the FLDS children at the center of the YFZ Ranch case once they return home.
Fifty-first District Judge Barbara Walther has said that some 450 children will be released from state custody and reunited with their parents starting Monday, in keeping with a Texas Supreme Court decision Thursday.
In order to take custody, FLDS parents or their designees must produce an affidavit and have themselves and their children photographed "at the time of taking possession of the child," according to the order.
As before, the children are not allowed to leave the state. The revised order adds that if families move within Texas, the parents must notify the state seven working days prior to the relocation.
And if the children are to travel within state lines more than 60 miles from where they live, the state must be told at least 48 hours ahead of time."

Anonymous said...

Anonymous [03:43:00 PM] said...

"I just wish these people would leave Texas.

... Then again, you're never too stupid to legally have a child are you?"

Actually, it did occur to me that it wasn't really about the children.

Sure enough, I too see signs the intelligence-bar is too low on breeding-permits.

You were talking about the Catholic priests, right?

Anonymous said...

Ted Clayton,

Rumor has it the SCOTUS doesn't like trial by media such as Court TV and Nancy Grace for a variety of reasons, one being the disrespect for the law. Free speech or not, the government's rights on bogus evidence and publicity are not written in stone. See Pretrial Publicity Prevents a Fair Trial in the USA for a case history study(pdf). The same should be true under the 14th for civil matters.

karateka said...

I think the FLDS would be better served by strategic participation as opposed to attempting to dominate. They will be able to get ~200 registered voters for this election, which will not be enough to dominate. However, by splitting between both parties they stand a much better chance of changing the political climate, and thus more effectively influencing local politics.

Warren Jeffs being incarcerated should actually help the political organization of the FLDS as I believe the local YFZ leadership is much more politically savvy. If they weren't before the raid they certainly are now! Those thinking "the FLDS is cult, and will break up with WJ in jail" will certainly be disappointed, though it will not stop them from repeating baseless hate speech.

Parent Rights

blog648 said...

So Texas will begin issuing breeding permits, but they'll only be required for FLDS members. They will be administered, of course, by CPS. ;)

After all, they don't want to bite off more than they can chew, do they?

TxBluesMan said...


I would assume that there is a baby involved in Texas, in which case Jeffs is probably toast.


We hope that they sue do realize that a lawsuit would open up their entire organization to discovery, depositions, inspection of the site of the alleged rights violation (the ranch), etc? Please encourage them to sue the State....


Exactly where is the incontrovertible evidence that the Rangers knew that Barrow had never been to the ranch? Based on his say-so? So the next time a murder suspect says that he/she didn't do it, the cops should just let them go? It was already known that he was a convicted felon - there is a reason that felony convictions can be used to impeach the credibility of witnesses - because they sometimes lie.

The Colorado Springs affidavit shows that the Texas Rangers still believed that 'Sarah' was an actual person days after the raid - which would negate the one basis for throwing out the warrant, that Ranger Long deliberately misled Judge Walther. If they are still trying to find 'Sarah' it is obvious that there was not an intentional deception, and the warrant stands.

The Local Crank said...

'What does this mean for families that already signed CPS "service plans"? Will those be deemed invalid since the child seizures that spawned them weren't justified?'

No. The service plans will gave to be modified, but the case is still pending and the ruling from the adversary hearing(s) is still in full force and effect.

"Similarly, if the judge had no authority to order the children's seizure, does that mean she also had no authority to order the much-ballyhooed DNA testing, results of which are expected back soon?"

Also no. Though this points out the tension between Family Law and Criminal Law. If I represented an alleged father and there was any chance he might be identified as having fathered a child with an underage girl, there is no way I would want him submitting to a DNA test. I would at least make the State get a warrant and I would fight it all the way. As his Family Law attorney, though, I would recognize that submitting to paternity testing would be the only way for him to get his kids back. There's also the risk, of course, that some defendants are less than honest with their own attorneys.

Anonymous said...

Txbluesman: Only the honest FLDS need to file the suit, there are plenty of them compared to the few old geezers who use teenagers as child bearers. Even VT (Island Pond) didn't escape their raid without a minor payout (only to some child they caught who was visiting a TT house) despite the judge taking the proper action there; here Texas CPS walked all over their rights and the judge didn't give a damn about doing her job right just wanted to avoid an adverse political outcome. The payout here will probably be huge as it was 8 weeks and included adults.

Anonymous said...

txbluesman--even a rat is smart enough to jump off of a sinking ship. The fact that you're willing to go down with it and continue to attempt to divert from the facts is a testament to your ignorance. Or rather, your dishonesty.

Anonymous said...

Looks like Judge Walther sabotaged the deal. Here's a link tothe AP story:

--Richard Wexler
National Coalition for Child Protection Reform

Anonymous said...

Here are the actual Walther's new court orders/documents-drafts. None signed by either yet, despite media misinformation.

Linked, upper left hand corner of the above article.





Each family needs to prepare to appeal this to the US Supreme Court—ONE AT A TIME.

This is unconstitutional–violating all sorts of constitutional rights and more—especially 4th amendment—and more–5th amendment–due process, 8th …on on on.

People, please read the documents.

This site link below has inside information and Bill is in touch with the ranch daily. We knew ahead of time, that the ACLU would do a brief, and we knew ahead the SC decision was in before it hit media--now we know families are not signing.

Do not believe anything media reports on this.

Families are refusing to sign, these house arrest orders---rightfully so!!!

Remember, no crime...nothing...and these 465 kids were taken by gun point.

What the hell is the matter with you people down TX way?

Never, mind---I know, I lived there unfortunately, for 6 years.

Anonymous said...

For some reason, the entire Ap link didn't appear when I posted a moment ago. This is a link to the same story on the Dallas Morning News site:

In case that doesn't work either, bottom line is that Walther wanted to add new conditions, when lawyers for the families balked she said all 38 parents must sign the agreement before she'll sign it.

--Richard Wexler

TxBluesMan said...

This is hilarious.

See Coram Non Judice for my full take, but basically Judge Walther is going to insist that the TRLA lawyers meet the exact letter of the law to get the order signed, since they didn't agree to her conditions.

It could have been simple - but no, they wanted to piss off the judge...


Anonymous said...


ADDENDUM: Walther’s orders, violate constitutional standards, as above, but moreover–

This is Walther’s judicial retaliation–or let’s say prosecutorial retaliation as she is ‘prosecuting’ the FLDS from the bench without: 1) evidence according to 2 higher courts) 2) without a crime 3) without a victim for 465 children 4) without a DA review and 5) without a grand jury indictment.

She is attempting to place them under house arrest and more.

Remember, the children were taken at gunpoint.

Anonymous said...



The 'amended' second order is worse than the first! Media, as usual, isn't reporting Walther's 'condition' correctly.

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


"Exactly where is the incontrovertible evidence that the Rangers knew that Barrow had never been to the ranch?"

You give a general summary as if that points out your incontrovertible evidence that the Rangers [didn't] knOw.

I've pointed out numerous times all that were involved in the FIVE DAY planning seesion PRIOR to the raid, which should show everyone they were NOT in a hurry to save a life.

I could be incorrect, there looks to be 3 options here.

1. They knew there was no Sarah, so they planned for five days;

2. In "good faith", the entire leadership ignored SOP that would have produced immediate action because they are unprofessional; or

3. In :good faith", they're all just plain STUPID.

You're the Texan, you pick which one.

Pinkycatcher said...

kpb, as a Texan I would choose number 3.

On another note: Deseret News take

By reading The Deseret News you get a impression about the judge, what I'm getting would be this:

Judge - "I don't like this I'm gonna change it nanananana you can't do anything about it!"

Attys - "What? Can we talk to our clients?"

Judge - "I'm not listening, look I'm going walk of the bench, you're wrong! HUMPH!"

Attys - "Que?"

Anonymous said...

Warren Jeffs
Warrant to collect DNA

Melanie said...

Okay, color me confused. It sounded this afternoon like negotiations for the first proposal were going swimmingly. Then Walthers brings out MORE restrictions?! That's a backwards way of negotiating if you ask me - which sounds coldly calculated. Start off small, then see just how far you can push them til they snap back; *then* you have the excuse to step down and shake your finger at them because they're not cooperating.

I sincerely Walthers is investigated over this. Something's rotten in the state of Texas.

Anonymous said...

Can Walther's violations of the TXSC's opinion be appealed directly to the TXSC? Once the 10 days are up isn't Walther in contempt of the 3rd if she doesn't comply? Broad discretion does not mean violating the ruling under a different color of authority. Maybe the 3rd will issue a direct order enforcing its opinion.

Anonymous said...

TBM said: 3. In :good faith", they're all just plain STUPID.

I've seen a better description from someone with years dealing with TX corruption.

"Retarded Sociopaths"

Yep...I can't think of a better one.

kbp said...

Comment i left at TBM's:

The end result is Walthers gains nothing beyond increasing WHAT percentage of the public reads about her actions, as all see only that she held the children hostage.

That will be the general view of the overwhelming majority that read about what she has done.

Certainly not the best PR move I've ever witnessed.

kbp said...


I am lost on what 10 days you're talking about that may lead to contempt.

I may be incorrect, but the 3rd has not yet provided the "Order" that would force Walthers, and the SCOT did not provide one.

Melanie said...

Brooke Adams pointed out in her blog that there was no 10 day period granted by the 3rd. They gave no timetable, only that "The writ will issue only if the district court fails to comply with this opinion."

So. The SC didn't issue a timetable, either, did they? So Walthers can dither around as much as she likes, as long as she's "trying" to working things out.

Anonymous said...

Thank you Melanie,

"The writ will issue only if the district court fails to comply with this opinion."

So if Walther does not comply (house arrest) and the writ issues, isn't that an order from the 3rd court?

kbp said...


I see Walthers mooning on the 3rd also, and it's not the first time.

The Order from the 3rd is yet to be written. I'd guess they can play a better hand than Walthers, if they decide to.

If it turns into a pissn' match between the courts, it could get interesting.

TxBluesMan said...

A copy of my reply to kbp from my blog...


It also depends on what part of the public she cares about - which is the 51st District.

I would imagine that the citizens of those counties back her position, which will help her at re-election time.

As to the mandamus:

The writ will only issue if Walther does not vacate her emergency removal order. To do that, the TRLA lawyer has to present her with an order vacating the ERO, but it has to be signed by all of the 38 relators.

Since the TRLA isn't playing nice, and insists on Walther going by the letter of the law, she's doing the same to them.

Besides, I would imagine that she'll have individual Sec 105.001(b) TROs prepared by Monday, which do not require notice or a hearing, do not have to have the reasoning set out, and have no requirement for a finding based on evidence to be published. A bonus is that you can't appeal them, and it's almost impossible to get a writ of mandamus on them, since they don't have anything but the actual TRO to go on...

She's playing their game now and they don't like it - too bad.

It's never a real good move to piss off the judge by telling her what she can't do, even if you're right...

Melanie said...

"Since the TRLA isn't playing nice, and insists on Walther going by the letter of the law, she's doing the same to them."

Objecting to onerous additions to a (fairly) reasonable agreement is "not playing nice"? That's their job, to protect their clients from undue harm, punishments, restrictions, etc.

And can you explain to me how she's holding them to the letter of the law by insisting the 38 named mothers sign off of this order? Where does it say that the mothers have to agree to anything? I do understand that the SC ruling gave her latitude to impose some restrictions, is that what you mean - that if she's imposing restrictions, they're going to have to sign off on them? And that if TRLA had "played nice" and not objected, she was just going to waive the mothers having to sign off?

kbp said...

Walthers really answers to none in this situation.

I do not like judges being elected, it's a waste of expense in 99% of the elections.

She'll be the Mike Nifong of Texas, as in "nifonged".

Next thing you know, "walthers" is a noun, and it won't be a good one!

It is an absolute certainty she'll be discussed in future law classes - what NOT to do.

Should leave quite a legacy for her family to live with for maybe decades.

The last laugh will not come from her.

kbp said...


FYI, I repeated my comment here to share it. The ID'ing that it was at your site was to show it was a repeat posting.

No other reason, and thanks for updating me on your response here.

Anonymous said...

Once again tx explains to us what justice and the rule of law is in the government's eyes. Is there any precedent at all for house arrest in child custody cases? Maybe the FLDS lawyers should explore the 7th Amendment. This may be a good case to get civil law constitutionally protected under the 14th Amendment.

I think maybe Walther is trying to mitigate possible civil suits.

Anonymous said...

BTW, don't "individual Sec 105.001(b) TROs " have to be based on evidence relevant to each child? Isn't that the whole point of the 3rd's opinion? Is she going to sign new blanket TROs based on the same lack of evidence? How can she sign any TROs without individual hearings? Isn't she slapping the 3rd and the TXSC in the face?

TxBluesMan said...

kbp, I merely thought that you were sharing it over a wider audience, which I was also trying to do - I certainly was not offended or displeased... ;)


Judge Walther is the one that is responsible for the FLDS children now, they are in her jurisdiction and will remain so until the case is resolved. She is the one present in the courtroom that can judge the demeanor, the obstructions by the FLDS wives, etc.

She must not have thought that restrictions were enough to protect the children, so she insisted on additional requirements. That's within her discretion as outlined by the SCOT opinion.

The TRLA attorneys had a choice. Agree to the restrictions, or come back with a properly formated order to vacate the emergency removal order.

If the attorneys were doing their job properly, they would have already had the order prepared and signed by their clients.

In any event, as the SCOT noted, Judge Walther has the right to set restrictions under FC 105.001. This statute allows her to set a temporary restraining order and states:

"A temporary restraining order or temporary injunction granted under this section need not:
(1) define the injury or state why it is irreparable;
(2) state why the order was granted without notice; or
(3) include an order setting the cause for trial on the merits with respect to the ultimate relief requested."

Both case law and the statute clearly notes that the TRO is not subject to appeal.

It shouldn't take long to xerox several hundred TROs and fill in the blanks...

Anon 11:50,

They have a right to a jury trial in Texas - when it gets to the point of termination of parental rights. Until then, they just get a judge. It's a shame that the Federal Courts have approved of this. Kinda shoots your whole argument down...

kbp said...


"If the attorneys were doing their job properly, they would have already had the order prepared and signed by their clients."

What order?

TxBluesMan said...


Unlike an emergency removal order, which specifically requires a hearing and that certain evidence be present, there are no such requirements for a temporary order under Sec. 105.001(b) - note that except in TROs involving custody, there is not even a hearing requirement.

Since the judge isn't required to explain the reason for the TRO, the justification for it, etc, how do you appeal it (especially since the law states that a TRO is not subject to an interlocutory appeal).

Mandamus would be an option, only it doesn't work very often in those cases.

It's hard to abuse judicial discretion when the law says you can issue whatever orders you want...

TxBluesMan said...


The draft order to vacate the ERO.

kbp said...

THREE CHEERS for walthers, a legend in her own time!

Made the top LEFT column, first story you see, in the DRUDE REPORT!

No upper case for this noun!

"walthers" = One who holds children hostage, often only to prove a frivolous point!

kbp said...


Wouldn't the 3rd, after opposing counsel had approved, have to give it their stamp of approval so that the signatures would not have been a wasted effort?

TxBluesMan said...



Texas is a little unique. The mandamus is typically conditional here - if the trial court doesn't withdraw or vacate the order in question, then mandamus will issue, otherwise it won't. If she vacates the order, there is no need for any additional paperwork or orders or approval from the 3COA.

Since the TRLA hasn't yet presented Walther with a properly signed order for her to vacate her original order, she's not yet (technically) in violation of the 3COA's opinion.

Anonymous said...

TX Bluesman:

I simply do not believe you.

No judge can issue such sweeping orders on hundreds of families...and do cookie cutter---once again--essentially taking away constitutional rights i the process. WITHOUT ANY EVIDENCE.

If nothing else, the 3rd told her she could NOT treat all 465 as one household!

What you say, simply is false.

People..don't believe this guy.

Anonymous said...

Anonymous @ 2:30AM

If only that were true. Unfortunately this is a CPS case. Walthers can do pretty much what she wants. If you need proof, just look at what she has done already. :(

Regardless of which side you are on, pray for those kids. They need it.

Anonymous said...

txblues: You have officially jumped the shark.

THey didn't want to piss off the judge, the judge is bitter ecause her ignorance has been proven in front of the entire country. She has no right to force the families to sign anything now, and she's getting called on it. It's only going to get worse for her.

She's been reported to the Commision on Judicial Conduct already. She'll be lucky to be able to preside over traffic tickets in the future.

rericson said...

I think there is some confusion about how an order is written....
In this case the 'order to vacate'...
Typically, the petitioner, in this case the mothers, through counsel, writes the order they want signed, and it is attached to the petition....
Apparently Texas has some caveat in their 'rules' or 'local rules', that can require that the actual petitioner and not counsel, sign the proposed order....
or sign a statement of veracity....whatever...
I think some folks here have the impression that the issuing judge actually writes the order, and not the petitioner...... and what you're saying is that based on local rules, each mother in the 3rd circuit case must present an individual, signed petition with a proposed order attached...
Am I getting it?????
This is where you are talking about 'letter of the law'????

What you're also saying is that Walthers can issue a TRO against each mother, or father, or both, without having to give justification, correct????
And if she does this, does it have to have an end date?
And why is 'mandamus' the only recourse? and, in the instant case anyway, wouldn't a higher court see it for what it is, a retaliatory measure? despite the rarity, wouldn't the inclination be to grant mandamus???? was granted in the first appeal?????

Ron in Houston said...

A common problem in family law appeals is that most of the time you still end up back in front of the same judge.

Judges have different attitudes about being appealed with some not caring while others get highly annoyed that you appealed them.

The Supreme Court pretty much told Judge Walther she could make other orders short of emergency removal.

The FLDS just won a battle but they're a long way from winning the war.

Anonymous said...

Tx, with all due respect, you seem to be full of it again, and if this is what the court is trying to do, so is the court.

§ 105.001. TEMPORARY ORDERS BEFORE FINAL ORDER. (a) In a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:
(1) for the temporary conservatorship of the child;
(2) for the temporary support of the child;
(3) restraining a party from disturbing the peace of the child or another party;
(4) prohibiting a person from removing the child beyond a geographical area identified by the court; or
(5) for payment of reasonable attorney's fees and expenses.
(b) Except as provided by Subsection (c), temporary restraining orders and temporary injunctions under this section shall be granted without the necessity of an affidavit or verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held. Except as provided by Subsection (h), an order may not be rendered under Subsection (a)(1), (2), or (5) except after notice and a hearing. A temporary restraining order or temporary injunction granted under this section need not:
(1) define the injury or state why it is irreparable;
(2) state why the order was granted without notice; or
(3) include an order setting the cause for trial on the merits with respect to the ultimate relief requested.
(c) Except on a verified pleading or an affidavit in accordance with the Texas Rules of Civil Procedure, an order may not
be rendered:
(1) attaching the body of the child;
(2) taking the child into the possession of the court or of a person designated by the court; or
(3) excluding a parent from possession of or access to a child.
(d) In a suit, the court may dispense with the necessity of a bond in connection with temporary orders on behalf of the child.
(e) Temporary orders rendered under this section are not subject to interlocutory appeal.
(f) The violation of a temporary restraining order, temporary injunction, or other temporary order rendered under this section is punishable by contempt and the order is subject to and enforceable under Chapter 157.
(g) The rebuttable presumptions established in favor of the application of the guidelines for a child support order and for the standard possession order under Chapters 153 and 154 apply to temporary orders. The presumptions do not limit the authority of the court to render other temporary orders.
(h) An order under Subsection (a)(1) may be rendered without notice and an adversary hearing if the order is an emergency order sought by a governmental entity under Chapter 262.

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 575, § 5, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1390, § 3, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, § 1, eff. Sept. 1, 2003.

So, 1) there is still the presumption of parental right, 2) there is no emergency for these children as the higher courts found, so Subsection (a)(1) may NOT be rendered. 3) "Except as provided by Subsection (h), an order may not be rendered under Subsection (a)(1), (2), or (5) except after notice and a hearing."

If breaking the law is criminal, then so goes Walther.

rericson said...

Ron in Houston, et all...
So....again, not being the sharpest knife in the drawer. I'm still confused....
Walthers can issue temporary orders for all sorts of stuff, except taking physical custody, without showing evidence??????

So she can order TROs barring a parent from the residence, but not removal of the child????

But the issue of signatures is what I asked about earlier....was I correct in my understanding???
Wanting signed orders isn't asking the mothers to agree to anything, as is some readers/posters is simply a pain-in-the-ass move on her part that is backed up by procedural rules....apparently rules that are often waived?????????

kbp said...

There are quite a few that have expressed their doubt a civil complaint - which a letter of notice for such has already been provided - could survive a motion for summary judgment.

The task of proving "malice" is not a simple one, but the initial warrant used in this raid was the result of a law passed to nail the FLDS. Working from out-of-state, I have 5 documents in which Hilderbran tells the world his intentions for passing the laws is the FLDS.

The complaint will be full of accusations much worse than those have written about, and that complaint is read as FACT when it faces summary judgment.

Even if the authorities succeed in finding a crime or two, that will not eliminate all the other families. Actions against any within households at the community do not effect the claims filed by families within other households.

If Walthers slips any in this "because I can" act, it only adds to the problems Texas could face.

rericson said... I just readon Brooke's blog that the signature(s) on the proposed order have to contain language laying out the specific expectations that each family will meet/abide by....and Walther is stipulating one set...and says she will not negotiate any others....and the atty's, including the State's Atty...have agreed to a different set.....
So Walther is presuming to know more about what is needed to assure safety than anyone else...including the SCOT and the third circuit?

Anonymous said...

Having read the order now, Walther doesn't invoke or even mention section 105.001. Tx is exercising a little fascism though creative writing. Fiction.

kbp, the judge is trying to define the definition of household by using the nepotism statutes, possibly to the deflect suits.

From the order:

"For purposes of this ORDER, the term household means" any dwelling, building, trailer, or structure that is intended for or is actually used as a habitation that is occupied by individuals that are related to each other within the thrid degree of consanguinity or second degree of affinity, as determined under Chapter 573, Government Code;"


Consanguinity: Two persons are related to each other by consanguinity if one is a descendant of the other or if they share a common ancestor. An adopted child is treated as the natural child of the adoptive parent in this regard. The degree of relationship by consanguinity between a person and the person's descendant is determined by the number of generations that separate them. As the table illustrates, a parent and child are related in the first degree, a grandparent and a grandchild in the second degree, etc. If a person and the person's relative are related by consanguinity, but neither is descended from the other, the degree of relationship is determined by adding the number of generations between the person and the nearest common ancestor of the person and the person's relative; and the number of generations between the relative and the nearest common ancestor.

Affinity: Two persons are related to each other by affinity if they are married to each other or the spouse of one of the persons is related by consanguinity to the other person. Termination of a marriage by divorce or the death of a spouse terminates relationships by affinity created by that marriage unless a child of that marriage is living, in which case the marriage is treated as continuing to exist. A husband and wife are related to each other in the first degree by affinity. For other relationships by affinity, the degree of relationship by affinity is the same as the one by consanguinity. For example, if A and B are related to each other in the second degree by consanguinity, A's spouse is related to B in the second degree by affinity.

Texas nepotism statutes with a chart.

Anonymous said...

This is a copy of my comment to TxBluesMan's post of his interpretation of the return-the-children hearing that unraveled in Judge Walther's court on Friday, May 30.

I have now read additional and more-detailed accounts of what transpired in Judge Walther's Friday hearing. While the family lawyers did provoke Walther by objecting to her changes of the agreement for return of children, and further provoked her by reminding her of the higher court rulings, it looks nonetheless as though Walther modified the agreement too extensively and too unacceptably for the familys' representatives to just 'let it go'. So they challenged the Judge on it, and she then 'walked'.

The Judge, I would say, created the confrontational context, and once she did this, the lawyers were obliged to object. It smells like a set-up, and Walther was the cook.

I do not see the situation being accurately or adequately characterized as "they messed up", meaning the TRLA lawyers.

Speculatively, if the hangup that results from this unprofessional-seeming 'outburst' (with the whole nation & world watching, and Texas alreay on the hotseat)delays the return of the children by more than a very short time, Judge Walther could be facing additional challenges - but from the higher courts, again.

At this point in the case, the Appeal Court and the Supreme Court having made clear the necessary corrective actions, and Judge Walther's appropriate role was to reverse her previous custody ruling. The time & context for additional negotiations and court-actions on her part, is after she backs up and corrects her previous mistake.

Strong-arming the mothers & their lawyers - which I think is a fair characterization of her most recent actions - appears distinctly inappropriate as a prelude & prerequisite to following through on the order to return the childer.

The time for initiating the 'offensive' Judge Walther launched on Friday, is after she has reversed her initial boo-boo and the kids are back home.

Indeed, the Judge's actions on Friday strongly remind me of the original mistake she made - in handling the FLDS intervention in a mass-processing fashion, without child-by-child evidence. Specific items in Judge Walther's modifications to the agreement have the overt effect of continuing her previous error of applying remedies & requirements before legitimate evidence of justification has been found & presented.

I think the Judge blew it. Again.

Anonymous said...

More BS from Walthers. If the state and the parents are in agreement, she should shut up and accept the deal, unless she thinks its in violation of the law.

kbp said...


Grits has a new post up:

"For the sake of accuracy..."