The Texas Observer

The FLDS children are going home. Late this afternoon, a district judge in San Angelo officially ordered the state’s Child Protective Services to return more than 400 kids to their polygamist parents beginning on Monday.

The order follows yesterday’s ruling by the Texas Supreme Court that CPS overstepped its legal authority in seizing the children from the Mormon fundamentalist sect’s West Texas ranch in early April. Some of our past coverage is here.

Under the terms of today’s order — according to attorneys working on the case — FLDS mothers can live with their kids, on or off the sect’s Yearning for Zion Ranch, but CPS will keep close watch. The agency will have access to the children on any day between 8 a.m. and 8 p.m. And FLDS families can’t leave the state and must cooperate with CPS’ ongoing investigations into abuse at the ranch.

We’re also told that CPS may file to re-claim custody of a handful of teenage girls who were allegedly sexually abused. CPS has said that girls as young as 14 were married to, and sexually abused by, older men at the ranch.

The FLDS mothers have won back their kids for now. But this sorry saga is a long way from finished.

It appears a lot of the FLDS mothers will get their kids back, at least for a while.

The Texas Supreme Court late this afternoon ruled in favor of the 38 Mormon fundamentalists trying to reclaim custody of their kids from Child Protective Services. The state’s highest civil court affirmed a ruling by the Third District Court of Appeals last week that state officials had overstepped their legal authority in immediately seizing many of the 460 children from the FLDS sect’s ranch outside San Angelo in early April.

The AP story is here. You can read our report on last week’s appeals court ruling here.

The Supreme Court decision would seem to ensure at least temporary return of the FLDS kids, now scattered around the state in various foster care families and facilities. It’s worth noting that the ruling doesn’t prevent CPS from retaking custody of endangered FLDS children at a later date. The courts have simply said that the agency lacked the legal grounds to take immediate, emergency custody.

Nonetheless, the ruling is another blow to an increasingly embattled CPS. The agency has now been rebuked by two of the state’s highest courts for its handling of the largest child custody case in Texas history.

The news today is that Scott McClellan was just as frustrated while serving three years as Bush White House press secretary as we were watching him.

If you don’t know already, McClellan, an Austin native who first joined Bush’s staff when W was governor of Texas, has written a scathing tell-all memoir about his time in the White House. We haven’t read it, but judging from the title — ““What Happened: Inside the Bush White House and Washington’s Culture of Deception” — we’re thinking he is a tad disillusioned. The New York Times has more details here.

Mr. McClellan writes, the decision to invade Iraq was a “serious strategic blunder,” and yet, in his view, it was not the biggest mistake the Bush White House made. That, he says, was “a decision to turn away from candor and honesty when those qualities were most needed.”

Shocked, simply shocked!

His former colleagues are not happy and seem to be settling on an alien-abduction-like explanation. “It is sad — this is not the Scott we knew,” current spokesperson Dana Perino told USA Today. Rove echoed the refrain saying, “This doesn’t sound like Scott; it really doesn’t.” (It’s true McClellan does have three brothers. Maybe there is something to it. We’ve always had trouble telling them apart too.)

When McClellan announced his resignation from the White House in April 2006, he told the president, in front of a gaggle of reporters: “Our relationship began in Texas, and I look forward to continuing it, particularly when we’re both back in Texas.” (Video footage of the announcement is here.)

Bush responded, “One of these days he and I are going to be rocking on chairs in Texas talking about the good old days of his time as the press secretary.”

Yeah, that kind of “Old Friends” moment, could be a little awk-ward. It will take a mighty big porch. Or maybe the old McClellan will show up  and a new Bush we haven’t seen yet.

Gov. Rick Perry’s office just released the following statement about today’s appeals court ruling in the FLDS case:

“This is an ongoing legal matter, and our office is confident that state’s lawyers will review the appropriate next steps in this case to ensure the safety and welfare of the children involved.”

Translation: The governor is staying as far away from this as humanly possible. Please stop calling!

So now what?

The ruling today by a state appeals court in Austin has thrown the case of the FLDS children into even more confusion.

The Third District Court of Appeals ruled that Child Protective Services lacked the legal basis to remove many of the 400 children from the YFZ Ranch outside San Angelo. The court granted the request by 38 FLDS mothers to get custody of their kids back.

A quick refresher: CPS seized the children following a raid on the polygamist sect in early April. At a hearing two weeks later, District Judge Barbara Walther ruled that there was enough evidence of abuse at the ranch to warrant CPS taking temporary, emergency custody of all the kids. The agency then sent the children to foster homes and shelters all over the state while the courts began the process of sorting through each family’s case.

The appeals court ruled today that Judge Walther’s court “abused its discretion” in allowing CPS to keep custody of the kids. The appeals court commanded CPS to return the children of the 38 FLDS mothers who filed the appeal. (You can read past coverage here)

What does that mean for CPS? Will they appeal to the Texas Supreme Court? Will the agency return the children, who have been scattered to foster homes and shelters all over Texas?

Reached by phone, CPS spokesman Patrick Crimmins offered this statement, “We just received this information from the court of appeals and it is being reviewed. We are trying to assess the impact it may have on our case and what our next steps will be.” Asked if the agency would appeal to the Supreme Court, he said, “We don’t know. The attorneys are reviewing the ruling and trying to determine what happens next.”

After the appeals court ruling, the custody hearings that have been ongoing in San Angelo this week have been postponed. These so-called 60-day hearings are part of the legal process in which CPS will attempt to prove it should retain custody of the kids.

A key point to keep in mind: The issue at play in the appeals court ruling is not whether CPS can ultimately take custody of the kids — but rather whether CPS had the right to seize the kids on an emergency basis. As the appellate judges noted in their ruling, CPS’ first duty is to keep a family together and help parents work through their problems. The agency can seize the kids and take emergency custody — before all the facts have been established — only if the agency has evidence that the children are in immediate physical danger.

Emergency custody is a “extreme measure,” the appeals court wrote. But it’s a step CPS can take if “danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary.” The appeals court found CPS didn’t meet that standard in the FLDS case.

As we’ve noted before, there is some evidence of sexual abuse at the ranch — several dozen teen-age girls have allegedly become pregnant by older men. But, as the appeals court found, CPS offered no evidence that children of the 38 mothers involved in the case have been abused.

CPS countered, according to court filings, that the FLDS belief system “groomed” young males to be sexual abusers later in life and that the sect’s beliefs ultimately harmed all children. But the appeals court ruled that CPS’ allegations don’t meet the standard for emergency removal. (The law requires that children be in immediate physical danger.)

“The existence of the FLDS belief system…by itself, does not put children of FLDS parents in physical danger,” the appellate judges wrote.

The other key word in the law is “home.” As we’ve reported before, section 262 of the Texas Family Code, allows for immediate removal of kids in abusive “homes.” But families at the FLDS ranch lived in separate houses. And while they were in a tightly-knit community, the court ruled against CPS’ contention that the entire ranch qualifies as a single “household.”

In all, it was quite a judicial thumping for the good folks at CPS.

Texas’ Third District Court of Appeals in Austin has ruled that state officials lacked legal authority to remove more than 400 children from the FLDS ranch in West Texas in April.

We have detailed some of the legal problems with Child Protective Services’ seizure of the sect’s children. The AP brief about the ruling is here. We’ll post more details and reaction this afternoon.

Tomorrow, the three Gov. Perry-appointed commissioners will decide whether to approve Waste Control Specialists‘ license for a massive radioactive waste dump in West Texas, 30 miles west of Andrews. (Actually, this is the first of two Waste Control licenses that would authorize disposal of radioactive waste in two adjacent landfills.) The Sierra Club and residents of Eunice, New Mexico - the town closest to the proposed landfill - are calling on the commission to either reject the license or send the dispute to a contested case hearing for a decision by an administrative law judge.

As detailed in the Observer, TCEQ’s own experts have decided that the dump will in all likelihood leak into the groundwater. On a conference call this afternoon, former TCEQ employee Glenn Lewis reiterated the staff’s key finding that the radioactive waste will come within 14 feet of the landfill. “We are talking about contaminating the largest aquifer in the United States,” Lewis said, referring to the Ogallala Aquifer. Lewis added that the staff is uncertain of the exact location of the Ogallala but said a contested case hearing should settle the question. Waste Control maintains that the site is virtually dry and that whatever water is present isn’t connected to the two water tables in the area.

In Andrews, Waste Control has benefited from near-unanimous support for the project in the community. The Sierra Club failed to find a single resident to file for a contested case hearing. But Eunice resident Rose Gardner said today that her town should be taken into consideration by the TCEQ commissioners. “I want to bring awareness to the country,” Gardner said. “We have a nuclear waste issue that needs to be addressed but the solution is not at the site that Waste Control Specialists has chosen. It’s not my problem that they chose the wrong site; it is my problem that I have to fight this.”

In recent decisions on controversial environmental matters, the commissioners have either been unanimous or split 2-1 in favor of industry. (See Asarco smelter and coal plants.)

The commission meets tomorrow at 9:30am in Austin.