The two-day hearing in Texas late last week that resulted in the state keeping 416 children from returning to their communal home opened a rare window into the female side of a religious group that has long shut out contact with the outside world.
Mothers of some of the children now in state custody, adherents of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), prominently attended the hearing and often spoke to members of the press outside. In addition, they invited Americans across the nation, via televised broadcasts, to tour a home situated on the isolated 1,691-acre Yearning for Zion ranch near Eldorado, Texas.
Others gathered for group interviews, insisting they take very good care of their children, yet offering little information on the ages at which they permit their daughters to marry or about the fathers of their children.
Up to now, the focus of court cases against the FLDS involving polygamy have focused on the men, such as the prosecution of the group's leader, Warren Jeffs, in Utah and Arizona for arranging marriages of underage girls.
But this case in Texas is not only focusing on the children who are the products of these polygamous, or spiritual, marriages. It is also throwing the attention on the women who are the mothers of the children taken into custody and plural wives to the men on the compound. Spiritual marriages are not recognized as legal by the state of Texas.
The women, in a highly unusual manner for them, according to an attorney who represents them, decided to go public to fight for their children, to show the world they live in a real community and that they take good care of their children.
"When their children were taken from them, it changed the dynamics," says Rod Parker, an attorney from Salt Lake City who represents the FLDS. "The calculation on this was it mattered more for them to fight for their children. The possibility of criminal charges resulting from it was secondary."
Late Friday, after 21 hours of hearings, Texas District Judge Barbara Walther ruled that the 416 children, who were removed from the YFZ ranch earlier this month, may be at risk of sexual abuse if they return to the FLDS compound and must at least temporarily be placed in state foster care while an investigation continues. Separate hearings for each child will be held over the next several weeks through early June, she said. Judge Walther also ordered members of the sect to provide DNA samples for maternity and paternity tests.
Those tests will help the court determine which children belong to which mothers and fathers. Part of the reason the hearings were so chaotic – in addition to the sheer numbers of children and lawyers representing them – is that social service workers testified they had trouble obtaining accurate information on familial relationships.
The DNA tests should take care of that. But they also could help build cases for criminal charges. At issue is whether many of the girls were spiritually married to older men and impregnated before reaching legal age, which is 16 in Texas. At the hearing last week, Texas Child Protective Services workers testified to finding instances of at least 20 girls, some of whom are now adults, who had conceived or given birth before the age of 16 or 17.
The DNA tests will not only identify fathers, but mothers as well. And if those mothers were found to willingly turn over their underage daughters for such marriages, they could be charged as complicit to statutory rape, experts say.
"As long as the women were conspiring in the child sex abuse, knowingly allowing these underage marriages, all of them are capable of being indicted," says Marci Hamilton, an expert on church-state issues at Cardoza Law School in New York and author of the recently released "Justice Denied: What America Must Do To Protect Its Children."
As of now, no criminal charges have been filed in this case. That could be, experts say, because the children haven't identified their parents – some young children believe all the so-called sister wives are their mothers – and the women are being evasive in the answers they provide, according to the Child Protective Services workers' testimony. That may change once the DNA tests are completed.
"I suppose what they're hoping to do in part is identify the guys who impregnated these girls and prosecute them for statutory rape," says Ira Ellman, an expert on family law at Arizona State University's Sandra Day O'Connor College of Law in Tempe. "The adult women who cooperated in supplying these underage girls who were impregnated could have a criminal liability, too."
But right now, they face losing their children in this civil action in the 51st District Court in Texas.
"This is all about the care of the children and not a criminal trial," says Paul Bennett, director of the child advocacy clinic at the University of Arizona's College of Law in Tucson. "The court's main concern is how to keep these children safe, and how to create the best situation they can for them."
For now, that means placing all 416 children in temporary foster care while the investigation continues into whether all the children are at risk of sexual abuse if they return to the YFZ ranch.
For the mothers especially – the fathers are so far staying in the background – that means waiting and weighing options.
"We are evaluating the appeal options at this point," says Mr. Parker, the FLDS attorney and spokesman.