On May 29, 2008 the Supreme Court of Texas upheld a Court of Appeals order requiring the Texas Department of Family Protective Services to return more than 460 children taken into protective custody.
In Re Texas Department of Family and Protective Services
2008 WL 2212383
Tex., 2008.
On May 29, 2008 the
Supreme Court of Texas upheld a Court of Appeals order requiring the
Texas Department of Family Protective Services to return more than
460 children taken into protective custody. The children were
removed in April 2008 from The Yearning for Zion Ranch, a large
complex near Eldorado, Texas. Yearning for Zion is a community
composed of members of the Fundamentalist Church of Latter Day
Saints (FLDS), which has been the subject of media and government
attention due to their polygamist lifestyle and the recent
conviction of FLDS leader Warren Jeffs for accomplice to rape. On
March 29, 2008 the Texas Department of Family Protective Services
(DFPS) received a telephone call indicating a 16-year-old girl on
the ranch was being sexually and physically abused. On April 3, DFPS
entered the ranch, interviewed members of the community, searched
for documents, and eventually took possession of 468 children from
the ranch, on an emergency basis.1
On April 17-18, 2008, a District Court granted sole conservatorship
of the children to DFPS.2
Under Tex. Fam.
Code §262.104(a) (2007), DFPS is authorized to remove
children without a court order provided there is evidence of
immediate danger to the physical health or safety on the child or
there is evidence that the child has been a victim of sexual abuse.
Under Tex. Fam. Code §262.201(b)(1), at district court
the state has the burden of providing sufficient evidence of this
immediate danger in order to retain custody. According to Tex.
Dep’t of Human Servs. v. Boyd, “[D]anger to the physical
health or safety of a child includes exposure of the child to loss
or injury that jeopardizes the physical health or safety of a child
without regard to whether there has been an actual prior injury to a
child.”3
The statute places emphasis on removing children only as a last
resort and places the burden on the government to prove immediate
danger. Subsection (b) requires the department to demonstrate,
“[R]easonable efforts, consistent with the circumstances and
providing for the safety of the child, were made to eliminate or
prevent the child’s removal,” and both subsections (b) and (c)
mandate the return of children to parents unless there is an urgent
need for protection or a substantial risk of continuing danger.
At district court, the
state presented evidence indicating the prevalence of teenage
marriage and pregnancy at the Yearning for Zion ranch, including two
15-year-old “wives” and a pregnant 13-year-old. Expert witnesses
for the state also opined that the “pervasive belief system”
encouraging underage girls to marry and engage in sex at young ages
presented a danger to the children, including males and prepubescent
girls. Further, the state offered the testimony of a child
psychologist that children below the age of 16 are generally “not
sufficiently mature to enter into a healthy, consensual sexual
relationship or a marriage.” The district court found that the
government proffered sufficient evidence of danger to physical
health or safety to girls on the ranch to meet §262.104(b) and
thus allowed DFPS to retain custody of the children.
The Court of Appeals
of Texas, Third District, reversed, holding that DFPS failed to meet
its burden of proof under §262.201(b) (1) and vacated the
temporary custody orders. The Court of Appeals noted that DFPS
presented no evidence of any abuse to male children or prepubescent
girls. Further, they noted that living in a “pervasive belief
system” that may breed future abuse does not make that abuse
immediate or urgent as intended under the statute. DFPS did not
provide evidence that they made “reasonable efforts” to
eliminate or prevent removal of the children. Furthermore, DFPS did
not present evidence that the relators petitioning for the writ of
mandamus were the parents of the pregnant teens. The Court of
Appeals held the District Court had abused its discretion in
granting custody to the state.
The Supreme Court of
Texas affirmed the Court of Appeals’ decision, rejecting the state
argument that such a decision would leave the Department “unable
to protect the children’s safety.” The Supreme Court of Texas
also noted the various alternatives DFPS may use in order to protect
the children without removing them and encouraged the district court
to grant “appropriate” relief to protect the children. In a
concurrence, Justice O’Neill agreed there was no immediate danger
to prepubescent girls or boys on the ranch. However, O’Neill
argued, based on the record, the district court was well within its
discretion to grant custody of pubescent girls to the state, whom he
described as a “demonstrably endangered population.”
1In
Re Steed, 2008 Tex. App. LEXIS 3652, at *1 (2008).
3
727 S.W.2d 531, 533 (Tex.1987).
