*1 DEPARTMENT OF TEXAS FAMILY AND PROTECTIVE
SERVICES, Relator.
No. 08-0391.
Supreme of Texas. 29,
May Woodruff, Allen Duke Elton
Trevor Hooten, Shulman, Carey and Michael C. Cockerell, D. for Texas Family and Protective Services. Warr, Amy Doggett, Robert W. Julie Balovich, Chisholm, Amanda Michele Jane Alexander, Douglas Steed. and W. Sara PER CURIAM. 1,700- for Zion Ranch is a Yearning Eldorado, Texas, that is complex
acre near large community home to a associated with the Fundamentalist Church of Jesus March Day Christ of Latter Saints. On 29, 2008, the Texas telephone received a Protective Services sixteen-year-old girl reporting call being physically Sarah was and named sexually at the Ranch. On abused p.m., Department investigators about 9:00 law officials entered the enforcement night they in- throughout adults terviewed for documents. searched Concerned community polygamy had a culture of directing girls younger eigh- and of with older spiritual teen to enter unions have men and at the of all 468 children took *2 (1) Ranch without a court danger physi- order.1 The De- there was a to the partment largest pro- calls this “the cal or safety health of the child which history tection case of documented by was caused an act or failure to act It never United States.” located the person possession of the entitled to subject Sarah who was the of the and for the child to remain in the March 29 call. home contrary is to the welfare of the child; then filed several suits affecting parent-child relationship (2) urgent protection need for (“SAPCRs”)2 requesting emergency orders required the immediate removal of the removing the parents child and reasonable consis- limiting parents’ and access tent with the circumstances and requested children. The child, viding safety for the of the appointment managing sole made to eliminate or children, genetic conservator of the test- removal; child’s and ing, permanent and relief. On 17- (3) reasonable efforts have been 18, the district court conducted the adver- made to enable the child to return 262.201(a) sary hearing required by section home, there is a but substantial risk of (b) of Family the Texas Code.3 Subsections continuing danger if the child is (c) part: state in relevant returned home. (b) At conclusion of full adver- (c) If the court finds sufficient evi-
sary hearing, the court shall order the satisfy person ordinary dence to return of the prudence and caution that there is a possession entitled to unless the court continuing danger physical to the health satisfy per- finds sufficient ordinary safety of the child and for the child to prudence son of and caution that: contrary remain in the home is to the 262.104(a) ("If together person ordinary pru- 1. See Tex. Fam. Code there is would lead a temporary restraining no time to obtain a dence and caution to believe that taking possession order or attachment before abuse_”). has been the victim of of a child consistent with the health and safe- child, ty representative of that an authorized 262.105(a) ("When 2. See Tex. Fam. Code Family and Protective possession child is taken into without a court may possession Services ... take of a child order, person taking posses- the child into following without a court order under the sion, (1) delay, unnecessary without shall: file conditions, (1) only: personal knowledge on relationship; affecting parent-child a suit person ordinary of facts that would lead a (2) attorney request appoint an ad the court to prudence and caution to believe that there is child; (3) request an litem for the initial danger physical an immediate to the health or hearing by no later than the first to be held child; (2) safety of the on information fur- working day the date the child is taken after by nished another that has been corroborated possession.”). into by personal knowledge of facts all together person which taken would lead 262.201(a) provides: 3. Section "Unless the ordinary prudence and caution to believe that already parent, child has been returned to the there is an immediate conservator, managing possessory conserva- child; (3) personal tor, caretaker, guardian, entitled or custodian knowledge of facts that would lead a order, any, possession if ordinary prudence and caution to believe dissolved, adversary hearing been a full has the child has been victim of sexual day abuse; after (4) shall be held not later than the 14th by on information furnished anoth- the date the child was taken into by personal er that has been corroborated governmental entity.” knowledge of facts and all of which taken safety, welfare of the the court shall issue tect the children’s but the appropriate temporary order under gives the district court author- broad Chapter 105. ity separating children short of placing them from their them The hearing was attended scores of *3 may in attorneys parties, for foster care. The court make and attorneys ad li- tem, litem, guardians Ap- modify ad Texas orders “for the (CASA), pointed Special child,”4 Advocates including and welfare of the many hearing others. The was conducted “restraining party removing order in the courtroom in Angelo San with over- beyond geographical area iden- participants flow in city auditorium. by may tified the court.”5 The court At the conclusion of hearing, the dis- order the removal of an alleged perpetra- trict court issued orders con- tor from may the child’s home6 and issue tinuing Department’s custody orders to assist the in its in- children and allowing by for visitation vestigation.7 prohibits The Code interfer- parents only Department’s agree- with the ence with an investigation,8 and a ment. who relocates a residence or conceals a Thirty-eight petitioned mothers child with the intent to interfere with an appeals mandamus, court of for by review investigation commits an offense.9 seeking return of their 126 children. The While the district court vacate the must record reflects that at least 117 of the temporary custody current orders as di- children are under boys 13 and that two appeals, rected the court of it need not are 13 17. ages of the other seven, do so without granting appropriate at least two of whom boys, are are children, not Concluding shown. relief to as Depart the moth- ment had failed to meet its of proof burden ers involved in this in proceeding concede 262.201(b)(1), under section the court of response to the Department’s motion for appeals directed the district to vacate its emergency appeals’ relief. The court of temporary orders granting Depart decision not does conclude the SAPCR Steed, custody. ment 2008 WL proceedings. (Tex.App.-Austin 2008, orig. pro Although the involve impor- SAPCRs ceeding) (mem.op.). tant, paren- fundamental issues concerning The Department petitioned this Court tal rights and the State’s interest in pro- for review Having mandamus. careful- tecting premature it is for us to ly examined the testimony at the adver- Department’s address those issues. The sary hearing and the other evidence before petition for mandamus is denied. us, we are not inclined to disturb the court appeals’ decision. On the record before
us, opinion JUSTICE O’NEILL filed an removal of the was not war- concurring part in in Department argues dissenting part, ranted. The without explanation that in appeals’ which deci- JUSTICE JOHNSON and sion leaves the unable to joined. JUSTICE WILLETT 105.001(a); 261.303(a). § 4. § Id. see id. 262.205. 8. Id. 105.001(a)(4).
5. Id. 9. Id. 261.3032.
6. 262.1015. 261.303(b)-(c). O’NEILL, joined by girls Justice un- aged Justice interviews seventeen or WILLETT, der, JOHNSON and twenty Justice as fifteen to interviews well part concurring dissenting part. In the adults. course these inter- views, learned there were case, In this on many polygamist living families and Protective Services evi- Ranch; a of girls age number under the dence that “there was eighteen living preg- the Ranch were pubescent health birth; nant or given had both interviewed (YFZ) girls on the Zion Yearning for age and adults no too considered from pattern Ranch of sexual “spiritually” mar- young for a abuse, urgent protection that “the need *4 leader, ried; religious and the Ranch’s required the immediate removal” of those Merrill,” power had the unilateral “Uncle girls, and that the Department made rea- to when and would be decide to whom efforts, considering sonable the obstacles court, trial in the Additionally, married. information-gathering pre- to that were Department presented “Bishop’s Rec- the sented, prevent to removal and return from the ords”—documents seized those children home. Tex. Fam.Code of indicating several presence the 262.201(b)(l)-(3). § Ranch— endangered As to this or extremely young pregnant mothers I population, do not the agree with Court sixteen-year-old “wives”1 on the Ranch: a that trial court in the abused its discretion child, sixteen-year-old a “wife” with a the allowing tempo- to retain “wife,” fifteen- pregnant pregnant two conservatorship rary until such time as a “wives,” thirteen-year-old year-old and a permanency plan to ensure each designed testimony a The who had conceived child. girl’s physical safety health and could be Walsh, families’ of Dr. John the William §§ id. approved. See 263.101-.102. On this witness, Funda- the expert confirmed that record, however, I agree that there was no Latter of of mentalist Jesus Christ Church of “danger physi- imminent to the “physical Day accepts age of Saints pre- cal health or safety” boys of menstruation) (that is, development” first pubescent girls justify their removal “marriage.” for age eligibility as the YFZ from the and to this extent I Dun- Dr. Bruce Finally, psychologist child join opinion. Court’s Id. 262.201(b)(1). Perry pregnancy can testified that the § was Ranch underage children on the presented in Evidence the trial court the result of sexual because abuse began that the Department indicated its fifteen, fourteen, or sixteen age of the investigation of the Ranch on March YFZ mature to sufficiently emotionally are not 29th, when it of sexual report received a relation- healthy sexual enter consensual abuse of a on the sixteen-year-old ship “marriage.” or a 3rd, property. On the Ranch thus indicated along entered with law-enforce- Evidence pu- personnel pattern ment and conducted nineteen of sexual abuse Although legal spouse guilty of a sexual of- referred to as "wives” in the Bish- not his is Records, girls op's underage these are not See Tex. fense under the Texas Penal Code. married; rather, legally girls “spiritu- are l(a)-(b). § 21.1 Those who Code Penal husbands, ally” typically married to in contact, such see id. mote or assist sexual multiple polygamous with households 7.02(a)(2), engage § in or cause child to "spiritual” Subject wives. to limited defens- contact, 21.11(a)(1), may § see id. sexual es, person "engages who contact” sexual criminally liable. younger with a child seventeen who is 262.201 girls, condoning language of such of section bescent Based on Code, abuse, I Subsec- disagree. the Ranch2 —evidence (b)(2) (b)(3) ordinary of section 262.201 satisfy “person sufficient tions prudence require and caution” such that other demonstrate with at risk of as well. that consistent sexual abuse “reasonable 262.201(b). supports providing This evidence the circumstances and court’s finding safety the trial that “there was a were made to eliminate removal,” physical to the of or child’s health or Fam. Tex. 262.201(b)(2), pubescent girls on the and that “reasonable Ranch. 262.201(b)(1); (“ see child id. 101.009 ‘Dan- efforts have been made to enable the 262.201(b)(3). home,” ger physical safety health or to return id. moth- exposure child’ includes of the to loss consistent with the suggests, injury jeopardizes appeals ers’ arguments below, of the without re- to ade- failed whether gard quately justify there has been actual its failure to seek less-intru- child.”); prior injury Dep’t Tex. taking custody sive alternatives to cf. *5 Boyd, namely, restraining Human Servs. v. seeking 727 S.W.2d children: or- (Tex.1987) (affirming alleged against perpetrators the termination ders under Code, parental rights “endangering] Family section 262.1015 of the child,” physical well-being the section orders under [a] holding: agree “While we ‘endanger’ Family that 105.001 of the Code. 262.1015,105.001. metaphysical §§ means more a threat of injury possible or the ill of a effects less- However, Family only the requires Code family environment, than-ideal it is not Department ef- that the make “reasonable necessary that the conduct be directed at forts, with to consistent the circumstances” the or that actually suffers taking custody avoid chil- endangered Rather, injury. ‘endanger’ to ex- means 262.201(b)(2). dren. pre- Evidence pose loss or injury; jeopardize.”). to to trial court the sented indicated that Thus, the trial court did not abuse its pre- actions of children and mothers in finding discretion Department Department pursuing cluded from oth- 262.201(b)(l)’s met section requirements. er legal options. Department When the
Notwithstanding pat- Ranch, this of a the YFZ arrived at it was treated tern or pubes- cordially sexual abuse of and allowed access to Ranch, cent on the ap- repeatedly but children “the pled those peals today— held—and the agrees response questions Court Fifth” in to their about trial court not identity, identify abused its discretion would their birth- awarding temporary conservatorship to parentage, dates or refused to answer homes, Department Department because who questions about lived in their attempt legal steps, failed to short of tak- lied about names —sometimes custody, ing the children. Answers parents several times. (F). Family determining 2. The Code defines to include a "con- "abuse” In whether there is mental, tinuing conduct of a “sexual harmful to a child's emotional, including explicitly permits of- welfare” — under fenses section 21.11 of Penal court to consider "whether the household well as Code—as "failure to make reason- which the would be returned includes sexually able harmful ... has another effort conduct who abused 261.001(1)(E)- 262.201(d). to a child.” Tex. Fam.Code child." Id. pubescent similarly one mother as it relates to female children. were inconsistent: hers, Although agree first claimed that four were I with not. and then later avowed that trial court abused its discretion award- Furthermore, of male ing custody pre-pu- arrived children and discover that a had been used female children to the shredder bescent conservator, destroy just I documents before its arrival. would hold that the trial court not abuse its discre- did Thwarted the resistant behavior endangered demonstrably tion as to the both children and on the pubescent and to this population girls, options. had limited peti- grant Department’s extent would knowing family Without the identities tion for mandamus. Because the Court particular alleged perpetra- or of members not, respectfully I does dissent. tors, not have could sought restraining under section orders
262.1015 as it did know whom to re- not Likewise, See id. it
strain. 262.1015. any family
could not have member barred filing
from access to child without affidavit, pleading or must
verified which
identify clearly child to 105.001(c)(3) DEPARTMENT OF TEXAS separated. See id. FAMILY AND PROTECTIVE (“Except on a or an affi- pleading verified SERVICES, Relator. ... an order may davit not be rendered *6 excluding No. 08-0403. child.”). Furthermore, or access to a of Texas. Supreme Court that the moth- trial court heard evidence themselves ers believed 29, May underage procreation “marriage” De- young girls; was not harmful for testified that al-
partment’s witnesses “always wants
though to be with their will parents,”
kids only reunify children with their Kennedy, Louisa Bradshaw. John W. parents] after “it’s determined that [their Schenck, Salga- David David J. Richard express was in the know and can what it Theiss, do and Paul Fava for Marie Steed. their chil- place first that caused harm to Cockerell, This D. Carey pro dren.” is some evidence se. reasonably could not have PER CURIAM. sought custody to maintain with the moth- Thus, the trial ers. evidence The Texas court demonstrated that the for review petitions Protection Services reasonable consistent with ex- took decision appeals’ of the court of mandamus circumstances, traordinarily difficult (Tex. Bradshaw, in In re 2008 WL taking them the children without (mem. proceeding) App.-Austin orig. custody. into same child op.). That case arose out of the Steed, 2008 there was protection proceedings The record demonstrates that (Tex. 2008, orig. support App.-Austin trial court’s order WL