Are the beliefs of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), the polygamous sect that the state of Texas has also accused of child abuse, sufficient grounds for removing all the children from the group's compound in Eldorado, Texas?
The answer now lies in the hands of the Texas Supreme Court, and how it rules will help resolve a major church-state clash that began when Texas officials last month took some 460 minors from the sect's Yearning for Zion ranch after receiving phone calls from an alleged underage spouse complaining of physical abuse. That complaint, it turns out, was almost certainly a hoax – the first in a series of bad news for the Texas Department of Family and Protective Services (DFPS).
It also now appears that evidence about the sect's belief system that the state collected during the raid – and presented to a district court to justify its temporary removal of the children – is probably flawed. In the DFPS's biggest setback so far, a Texas appeals court on May 22 overturned the district court's decision to keep the children in state custody temporarily.
"Existence of the FLDS belief system as described by the [DFPS] witnesses, by itself, does not put children of FLDS parents in physical danger," the ruling read. "It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger."
The state's Supreme Court is expected to rule this week on DFPS's petition for emergency relief from the appeals court decision, possibly as early as Tuesday. If the appeals court decision stands, most of the children will be returned to their parents at the sect's ranch.
"If I had been advising the [DFPS officials] in their suit, I would have said, 'Don't even think of asking about their beliefs,' " says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "Ask about their conduct and intent to act. They don't have to abuse a child to be guilty of a felony if they have the intent. There should have been more focus on conduct."
The appeals court decision, in fact, was a stiff rebuke to the DFPS and the district judge who allowed the state to take custody of the FLDS children. Not only did it say the "pervasive belief system" of the FLDS sect did not endanger all the children, it also found that the removal of the children and their subsequent placement in foster care were not warranted.
Even if the high court were to side with the appeals court, that would not end the state's investigation into child-abuse allegations based on specific evidence, such as the finding that at least five underage young women are "spiritually married" to older men and have either given birth or are pregnant. Nor will it hinder the state's criminal investigation, which is expected to result in felony charges against some of the men, and possibly women, in the sect.
State officials' rationale for removal
DFPS officials insist they were legally compelled to remove all the children from the ranch, sparking the biggest child custody case in US history, because they found many underage women with babies or pregnant, because FLDS members they interviewed provided conflicting or erroneous information about family relationships, and because the "pervasive belief system" of the sect put all the children at the ranch in danger of either participating in or becoming victims of sexual abuse.
FLDS members, however, who split with the mainstream Mormon church in the late 1800s after it officially banned polygamy, deny those claims. They've said that if there are abuses in individual families, those should be dealt with separately – not communally.
"From the very beginning of this case, I thought [the DFPS] should look at individuals and not try to treat every participant in this community as though they're all the same," says Rod Parker, a Salt Lake City attorney for the FLDS. "They're not all the same."
It's a typical practice in child-protection agencies to remove all children from a home where abuse is likely to have occurred, says Ellen Marrus, a family law expert at the University of Houston. (Her own view is that it makes more sense to remove the abuser and get help for the others.) "If this were a house in which several immigrant families were living and one of the children were being abused, would all of the children be removed? Absolutely."
"There was no mention of what the standard of proof is," says Mr. McCown. "What the [district] court had to find was sufficient evidence to satisfy an ordinary person of prudence and caution that there was a danger to these children. The court of appeals treated this more like a final trial when this was a temporary order."
He is uneasy, too, over the appeals court's inattention to evidence of "spiritual marriages" and their effect on children, given that polygamy is illegal in Texas.
Also expected this week are results of DNA testing on the adults at the compound, which the state ordered to establish family ties. And criminal charges are expected soon.
"I anticipate ultimately there will be some criminal charges pursued," says Allison Palmer, an assistant district attorney. "But we will only pursue those after a full, thorough investigation."