Courtroom A
It all looked simple at first.
Attorneys came to court with a workable plan. The mothers' lawyers agreed. The state attorneys agreed. Other attorneys seemed to find it workable.
Some 450 FLDS children would begin the journey home on Monday as long as their parents agreed to:
Sign affidavits affirming parentage
Be photographed with their children
Not let their children travel out of Texas for 90 days
Take parenting classes, with latitude to take up concerns about providers with the state
Cooperate in the state's ongoing abuse investigation
Allow child welfare workers to make unannounced home visits between 8 a.m. and 8 p.m.
Provide home addresses and names of everyone living there
That was it. Simple. Workable. Agreed upon, even more than called for, an attorney with Texas RioGrande Legal Aid told me.
Then things fell apart.
Judge Barbara Walther called a brief recess to let all the other attorneys look over the plan. There were dozens in the courtroom.
Another 56 lawyers were listening in on a telephone conference call. Copies were emailed to them. A buzz filled Courtroom A as attorneys conferred.
All a waste of time, as it turned out.
An hour later, the judge with back with her own ''tweaked'' version of the plan.
Just conforming to Texas Family Code, the judge said. Don't want any confusion about what's expected.
She added words that clarified she was vacating a ''portion'' of her order keeping the FLDS children in custody.
Parents, the judge said, would have to agree to:
Let CPS have 24/7 access to their homes if they lived at the YFZ Ranch
Keep their children in Texas indefinitely
Take parenting classes but removed language allowing them to negotiate with the state about providers
Give written notice to the state seven days before changing addresses
Notify the state 48 hours before traveling more than 60 miles from home
Allow their children, themselves or any other adults in the home to be given medical and psychological evaluations if requested by the state
She called another recess so attorneys could look it over.
Many did not like it.
Attorneys for Texas RioGrande Legal Aid objected one after another. Their clients had not signed off on this plan, they said. It went beyond setting reasonable conditions that would allow the state to continue its abuse investigation.
Worse, it again made a presumption the mothers were guilty of wrongdoing — which the two higher courts had agreed was unproven.
Why should a mother who has not committed any abuse have to let state agents into her home at any hour of the day or night? Or take a psychological test?, they asked.
Send the children home and let the state's investigation continue, they said. If evidence surfaces against specific parents, the state can haul them back to court.
Presumption of innocence kind of stuff.
The lawyers began speaking out.
John Kennedy said some of the children in state custody are not even residents of Texas but happened to be visiting the YFZ Ranch when the raid occurred. A 90-day travel ban was OK, he said, but an open-ended restriction was a problem.
Kennedy is an attorney with Legal Aid of North Texas, which also got a favorable appeals court ruling for three FLDS mothers.
He asked that parents be allowed to collect their children immediately. Fifty-seven days have passed since the children were removed from their homes.
''Another weekend seems like it would be forever for these people,'' he said.
Other attorneys asked Walther to allow parents to begin signing affidavits and picking up their children immediately. Some were visiting children that evening. They could leave together.
That would be especially helpful for parents whose children are in several locations in Texas hundreds of miles apart, they said.
Even the state seemed agreeable to that. ''We don’t want to hold these children up any longer than we need to,'' said Gary Banks, an attorney for the Texas Department of Family and Protective Services.
Gary said adult mothers with their nursing infants might be the first and easiest to process and send home.
And what about women the state considered minors but whom it now recognizes as adults? They are with their children already. Always have been. No confusion there about who their mothers are.
Why do they have to wait, asked Dallas attorney Laura Shockley.
Walther demurred. By then it was 4:30 p.m. and the work day was running out. Most shelters are not open on the weekend and there would be no state staff available to oversee the process.
Besides, there was still no agreed upon order.
''I don’t want to create an order that causes more chaos for these children than has already occurred,'' Walther said at one point.
At that point, more lawyers had had time to read through her proposal.
They did not like it.
The changes, they said, made it appear the mothers had been abusive when there was no such evidence -- the problem the Texas Supreme Court and Third Court of Appeals tried to cure by overturning Walther.
Let the children go home, they said. Let the investigation continue, they said. And if specific evidence surfaces against any individual, the state can haul them back to court.
Nah, said the judge.
This would be the order, she said, and if the attorneys did not like it, they had legal remedies.
Julie Balovich of TRLA, listening in on the telephone, tried again.
With all due respect, she told Walther, the higher court rulings were specific: Vacate the order. Set reasonable conditions for an ongoing investigation. That's it. Period.
Walther took another recess to think it over. It was short. She did not agree with Balovich. And she was apparently tired of the wrangling.
Get an agreement, get every mother to sign it, bring it back and she'd sign it, the judge said.
But which plan? Hers? Theirs? A new one somewhere in the middle?
Walther did not take time to explain. She got up and left so swiftly attorneys listening on the telephone did not realize it was over, that she was gone, as they carried on a one-sided conversation.
Attorneys came to court with a workable plan. The mothers' lawyers agreed. The state attorneys agreed. Other attorneys seemed to find it workable.
Some 450 FLDS children would begin the journey home on Monday as long as their parents agreed to:
Sign affidavits affirming parentage
Be photographed with their children
Not let their children travel out of Texas for 90 days
Take parenting classes, with latitude to take up concerns about providers with the state
Cooperate in the state's ongoing abuse investigation
Allow child welfare workers to make unannounced home visits between 8 a.m. and 8 p.m.
Provide home addresses and names of everyone living there
That was it. Simple. Workable. Agreed upon, even more than called for, an attorney with Texas RioGrande Legal Aid told me.
Then things fell apart.
Judge Barbara Walther called a brief recess to let all the other attorneys look over the plan. There were dozens in the courtroom.
Another 56 lawyers were listening in on a telephone conference call. Copies were emailed to them. A buzz filled Courtroom A as attorneys conferred.
All a waste of time, as it turned out.
An hour later, the judge with back with her own ''tweaked'' version of the plan.
Just conforming to Texas Family Code, the judge said. Don't want any confusion about what's expected.
She added words that clarified she was vacating a ''portion'' of her order keeping the FLDS children in custody.
Parents, the judge said, would have to agree to:
Let CPS have 24/7 access to their homes if they lived at the YFZ Ranch
Keep their children in Texas indefinitely
Take parenting classes but removed language allowing them to negotiate with the state about providers
Give written notice to the state seven days before changing addresses
Notify the state 48 hours before traveling more than 60 miles from home
Allow their children, themselves or any other adults in the home to be given medical and psychological evaluations if requested by the state
She called another recess so attorneys could look it over.
Many did not like it.
Attorneys for Texas RioGrande Legal Aid objected one after another. Their clients had not signed off on this plan, they said. It went beyond setting reasonable conditions that would allow the state to continue its abuse investigation.
Worse, it again made a presumption the mothers were guilty of wrongdoing — which the two higher courts had agreed was unproven.
Why should a mother who has not committed any abuse have to let state agents into her home at any hour of the day or night? Or take a psychological test?, they asked.
Send the children home and let the state's investigation continue, they said. If evidence surfaces against specific parents, the state can haul them back to court.
Presumption of innocence kind of stuff.
The lawyers began speaking out.
John Kennedy said some of the children in state custody are not even residents of Texas but happened to be visiting the YFZ Ranch when the raid occurred. A 90-day travel ban was OK, he said, but an open-ended restriction was a problem.
Kennedy is an attorney with Legal Aid of North Texas, which also got a favorable appeals court ruling for three FLDS mothers.
He asked that parents be allowed to collect their children immediately. Fifty-seven days have passed since the children were removed from their homes.
''Another weekend seems like it would be forever for these people,'' he said.
Other attorneys asked Walther to allow parents to begin signing affidavits and picking up their children immediately. Some were visiting children that evening. They could leave together.
That would be especially helpful for parents whose children are in several locations in Texas hundreds of miles apart, they said.
Even the state seemed agreeable to that. ''We don’t want to hold these children up any longer than we need to,'' said Gary Banks, an attorney for the Texas Department of Family and Protective Services.
Gary said adult mothers with their nursing infants might be the first and easiest to process and send home.
And what about women the state considered minors but whom it now recognizes as adults? They are with their children already. Always have been. No confusion there about who their mothers are.
Why do they have to wait, asked Dallas attorney Laura Shockley.
Walther demurred. By then it was 4:30 p.m. and the work day was running out. Most shelters are not open on the weekend and there would be no state staff available to oversee the process.
Besides, there was still no agreed upon order.
''I don’t want to create an order that causes more chaos for these children than has already occurred,'' Walther said at one point.
At that point, more lawyers had had time to read through her proposal.
They did not like it.
The changes, they said, made it appear the mothers had been abusive when there was no such evidence -- the problem the Texas Supreme Court and Third Court of Appeals tried to cure by overturning Walther.
Let the children go home, they said. Let the investigation continue, they said. And if specific evidence surfaces against any individual, the state can haul them back to court.
Nah, said the judge.
This would be the order, she said, and if the attorneys did not like it, they had legal remedies.
Julie Balovich of TRLA, listening in on the telephone, tried again.
With all due respect, she told Walther, the higher court rulings were specific: Vacate the order. Set reasonable conditions for an ongoing investigation. That's it. Period.
Walther took another recess to think it over. It was short. She did not agree with Balovich. And she was apparently tired of the wrangling.
Get an agreement, get every mother to sign it, bring it back and she'd sign it, the judge said.
But which plan? Hers? Theirs? A new one somewhere in the middle?
Walther did not take time to explain. She got up and left so swiftly attorneys listening on the telephone did not realize it was over, that she was gone, as they carried on a one-sided conversation.
23 Comments:
I hope that anybody who has completely read the Appeals court ruling and that of the Supreme Court will weigh in here.
It's not my understanding that the Appeals court ruled that there was no abuse. I believe they ruled that there was no immediate physical danger to children and therefore no reason to have pulled the children from the home. This applied only to those families who went before that court and not all of the children. It would be quite different from a ruling of "no abuse" or a mandate to end the child abuse investigation.
The next big question is whether or not Walthers is correct. Is she merely asking attempting to fulfill the requirements of TX Family Code? That may well be the case.
Again I will say that for the lead reporter on an important story to make personal and biased commentary on the situation, is highly unethical and just simply bad journalism practice.
THIS LADY IS WACKED! WACKY WALTHER!
SHE IS ON A REVENGE TRIP AGAINST THE MOTHERS (thanks for that tip TXBLUESMAN). She is carrying out a personal vendetta against the children, their parents and attornies because she feels slighted by the Appellate and Supreme Court rulings.
Arrogant Ego of a judge is wounded, someone call 911! (or perhaps 666 for her).
She OBVIOUSLY needs to be removed. Impeachment should follow. No one respects her in this court; fears her yes, respects her NO. A kangaroo court run on fear is TYRANNY with no chance of justice ever flowing from her bench.
Wacky Walther wants presumed guilty.
The Constitution demands presumed innocence.
The parents will have to wait a little but it will go their way.
Walther has just pissed on the Supreme Court. Watching for that Supreme Court gavel to come crashing down on her. You know what they say, it rolls down hill.
What's good for the goose, is good for the gander. One big difference is Wacky Walther DESERVES IT.
They ruled that there was NO EVIDENCE of abuse. Sounds like NO ABUSE TO ME.
Womankine stop trying to FABRICATE a case for the prosecution. Can you site ONE piece of solid eveidence against any one of these parents? Now, can you PROVE it was legally obtained?
If you cannot, then the Prosecution, Wacky Walther and you HAVE NOTHING TO STAND ON.
As for ethics womankine, yours are laughable where Brooke Adams has years of good reporting.
In case you have not noticed, the public and media respect her good work.
Wacky Walther should recuse herself. Her objectivity is non-existent. She is trying to lay out terms that presume guilt and simply putting it IF SHE IS AN OBJECTIVE JUDGE ON THIS CASE, SHE CANNOT DO THAT.
She needs to step down and let a replacement judge of the Appellate Court's choosing take her place.
If she is smart she will retire.
Otherwise, impeachment proceedings can begin.
Now, a new judge on bench for this should make no difference to anyone who wants the parents prosecuted, unless they KNOW Walther is biased against the parents already.
No one is suggesting ending any investigation if it is a legal one under the law, which has not been the case.
The FLDS and the CPS can reached an agreement, which includes all the lawyers.
Why is it that Wacky Walthers cannot as an 'objective' judge, accept that agreement. The agreement stipulates far more than what I would have accepted.
Time is on the parent's side now. The Supreme Court said VACATE THE ORDER. It did not allow the judge to try and butcher any agreement with the CPS.
Her prior rulings exceeded the law. The TRLA went to appeal and the appeals court slapped Wacky Walther's hand. The CPS appealed (or should I say Judge Walther) and the Texas Supreme Court heard all sides and looked at what LITTLE evidence there was and then SLAPPED WACKY WALTHER'S HAND AGAIN!
Now Wacky Walther pulls this?!?!?!
She NEEDS TO BE REMOVED! IT IS CLEAR there is NO OBJECTIVITY left in her since she is again attempting to abuse her authority as a judge.
This is black and white folks. There is no defense for her actions. There will be no justice for the FLDS with her adjuticating this case.
Her reign of terror should end.
My humble opinion is that FLDS parents get some form of uniformed professional security service to escort them into each state facility where their children are, and present copies of the Supreme Court decision and the appeals court decision and demand to have their children back immediately.
I don't advocate any violent or forceful confrontation but it needs to be made clear that the state has no right to any of the children, at all. I'd like to see local law enforcement deal with the situation and see how it shakes out.
Can a supreme court judge hold a lower court judge in contempt?
womankine,
I have read all the briefs and orders. You are correct, the appeals court did not say there was no abuse. It said the trial court failed to meet its burden of proof to justify removing a child from his parents as is required by the statute.
No it doesn't mean CPS has to leave them alone. It does mean that she must vacate the temporary custody order as directed by the 3rdCoA.
However, the SCoT told her she had the power to make and modify any order she wants to ensure the safety of the children and this appears to be her thinking in requiring the 38 mothers to sign her order vacating and modifying the original order.
Obviously Julie Balovich felt the judge was going too far and is willing to take the matter back to the appeals court for clarification and enforcement.
I'm betting the moms will win again on Monday.
You bet they will. With no evidence presented it should be easy.
Walthers should recuse herself.
The rubber stamp kangaroo court should end.
I am not saying the FLDS are above reproach. I AM saying that due process and the Constitution are there for a REASON.
The Constitution is there in part to prevent REIGNS of TERROR by arrogant judges like Walthers. Since she has taken monies from the CPS and done so poorly as a judge in this case, she should recuse herself, or perhaps RETIRE.
No one believes they could POSSIBLY get a fair shake from her.
“The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department.” 3rd Appeals. The order was vacated - gone - made void - set aside - the state can not hold the children - done - those kids should be on the Ranch right now. SCoT in its majority "chooses not to distrub" the 3rd but pointedly does not end the CPS investigation and allows Walther the ability to keep them in Texas while the CPS continues to investigate. The dissenting judges indicate they are in favor of follow up on a particular population (5 disputed pregnancies). Even CPS sees that they are holding children they should not have. Any further high court judgments seriously erode their hold on local courts and they are ready to back down.
Thus CPS first motion did allow for the CPS to continue their investigation and it was more than generous for the Mothers to even consider it as a show of good faith to the courts.
The second (Walther's)is a near admission to guilt and the CPS is still in control of the children with the parents not having the right to say no to further examinations and allow CPS in their property at anytime. You have to say "no" to that.
At the end of the day, Walther walked out leaving the courts in disarray - again. She has met her match with all these pro bono attorneys from the larger metro areas, she doesn't seem to be able to handle them well. It will probably need to be back to the 3rd Appeals in order to get anything done.
It strikes me that Judge Walther would do well to re-read the law and prepare to vacate the custody order.
She has the right to place some restrictions, however, it would be in "the best interests" of all parties that her restrictions fall in line with commonly accepted practices in Texas.
With that said, I have to wonder if these are "commonly accepted practices"...
Demanding that all parents and children be photographed together.
Be allowed unlimited access 24/7 to their homes, either at the ranch or in some other location.
Be restricted to the State of Texas for an unspecified time.
And, why should the parents have to claim their children? The state has the responsibility to return them to the parents... and that should be at the last place they were together, in at least San Angelo.
Monday will be interesting. If Walther's gets her act together, I'll be grateful. If not, I'll be one of those screaming for her to be held in contempt of court for failing to vacate her original order.
The Appellate Court has wasted enough time with Walthers and should declare the order vacated.
The children should be returned home immediately and litigation commenced regarding multiple civil rights and due process violations where applicable.
All voting age members of the YFZ Ranch need to register to vote and become politically active in representing their Constitutional interests.
A safety net committee needs to be formed with representatives from governmental agencies and the YFZ Ranch, to create an open and active dialogue that will address the interests of all parties.
Texas tried to prosecute sodomy and lost its moral imprimatur. It appears they will now get around to prosecuting polygamy. In view of the evolving and significantly updated case law since "Reynolds," it's time to litigate this issue once again. Perhaps some of the estimated 100,000 polygamists in the United States will get to sit at the front of the bus if they so choose . . .
Brooke
"She added words that clarified she was vacating a ''portion'' of her order keeping the FLDS children in custody."
BIG POINT HERE!
WE DO NOT KNOW WHAT HER ORDER SAYS. NO REPORTERS HAVE SHARED THAT WITH US IF THEY HAVE IT.
**************
Womankine reads it as she likes! If there had been evidence of abuse,there would be evidence of an immediate danger,
custody would be accepted in select cases, there would not be a order waiting to fall in place telling Walthers to release all the children.
**********
Hugh
There is nothing in the opinion of the 3rd or SCOT that releases the children. The 3rd will provide an Order only if Walthers does not vacate her Order for temp. custody. Until then, nothing exists that would release them.
********
Acerbic
The 3rd did review the hearing records for evidence of immediate danger... many forms of abuse would fit that definition and the 3rd found there was not evidence of such.
The SCOT pointed out Codes that were available for Walthers to utilize for the safety of the children, they did not write rules that created new laws to use or permission to make demands greater than the laws permit.
Walthers new guidelines will not stand up to meet requirements for the individual cases, and she knows it. She'll have a new order herself Monday, but the next result will be the children home anyway and Walthers wins a hand in the big game she's losing.
The interesting outcome in the short term will be if the 3rd steps in to vacate or restrict the new orders without being asked. They will not stand the test if it is a one size fits all order.
*****
Dee
It is NOT vacated unless Walthers does that or the 3rd provides the order. There is no order yet.
*******
Shari T
That ""commonly accepted practices" walthers does not follow, adds to reasons a civil complaint will succeed.
Yeah, well, if there was no reason to TAKE the kids, I say take them back.
"Womankine reads it as she likes! If there had been evidence of abuse,there would be evidence of an immediate danger,
custody would be accepted in select cases, there would not be a order waiting to fall in place telling Walthers to release all the children."
I don't buy that. I have skimmed the doc, since my first post. CPS claimed, in their petition to the Supreme Court, that the children suffered sexual, physical, and emotional abuse.
The court only ruled that there was no "immediate danger" of physical abuse for the group involved in the petition. That does NOT mean they are ruling that there is no abuse. Witness their directives regarding alternatives for investigation and monitoring in the home. They are assuming that CPS will continue to investigate and monitor. They're just telling them to do it without taking custody.
That leaves CPS free to monitor and intervene for emotional abuse, as well as future post-puberty sexual abuse, or any other physical abuse that doesn't qualify as "immediate".
I don't know if Walther just wants to make this difficult or if she has a good reason for her actions. She has a good reputation as a family judge.
It is the nature of judges not to like to be jerked around and it's clear from the CPS petition, that the FLDS community did a lot of that when they entered the compound. There's no reason to believe the pattern hasn't continued. Most of the reports on this site and others are from the FLDS PR folks and their lawyers.
She has claimed that she is following Family Code and wants to avoid having to adjudicate this issue further, in the future. I'd like to see her rationale, as well as have a TX practicing family law expert weigh in on the code, before I rush to judgment.
Unlike you, kbp, I'm not assuming some vast conspiracy. I genuinely believe there are people concerned about these kids. I also believe they have good reason to be concerned.
Womankine:
If there were evidence of any abuse that put the children in immediate danger, the state could keep the kids. It's as simple as that. That's not to say the kids aren't being abused - hence the steps the SCoT took to ensure the investigation could continue - just that CPS currently doesn't have evidence that the abuse is taking place.
I would love for them to stamp out any abuse that is taking place at YFZ (and I would particularly love to see those who perpetrated the abuse in state custody, rather than the children), but the fact is that it's illegal to remove children from their homes without evidence of immediate danger.
Think about it. If you can't enter the home of a murderer and detain him/her without a warrant based on evidence, why should you be able to take an innocent citizen (in this case children) without evidence?
Gather the evidence first, then step in and act.
I'm sorry, you can't legally detain people to investigate and collect evidence until you find a crime.
Texas has no idea who the victim is, what the crime is or who the perpetrator is TWO MONTHS LATER. Yet they continue to investigate and people continue to say the prudent thing to do is let the investigation continue. WHAT INVESTIGATION? THEY ARE NOT INVESTIGATING ANYTHING! THEY AREN'T EVEN INVESTIGATING A PERSON!
So far the evidence collected says there isn't a crime of any sort. The ones Texas went to investigate have turned into smoke. Why do they continue to investigate? Who is being protected when no crime is evidenced? There is no crime, there is no one to protect unless you count protecting the FLDS and their children from CPS.
I'm not sure what your argument with my statement is, harmony. We both seem to agree that the Supremes ruling of no immediate physical danger means exactly that and does not speak to whether or not there is abuse.
I also accept their ruling regarding the return of the children. However, I don't think that means that there can't be terms imposed that assure the children can be monitored for their safety and well-being.
hugh, I am assuming that there will not be charges filed, until DNA results come in and investigators can match fathers to pregnant underage mothers. There are some forms of child abuse that may not result in criminal charges.
Woman, that means they invaded peoples lives and homes, looked at everything they owned, constructed a narrative and then went looking to see if that narrative pointed to a crime. Police are supposed to investigate crimes not investigate lives so as to FIND crimes. There is not one valid idea or warrant on which Texas continues to gather evidence.
If you asked them what they were investigating, they could not tell you. They could only tell you the believe that if they KEEP INVESTIGATING (Snooping), eventually SOMETHING will turn up.
kbp,
you are totally wrong. you need to read the opinion with an open mind. the standard needed for removal of children is "immediate physical danger", not abuse.
abuse is defined in many different ways, i'm abusing you now by calling you an idiot...
hit the dictionary and Texas Family Code, it's only a click away.
The standard needed for emergency removal is immediate danger to the physical health or safety.
A child can be removed from the parents at a later date, following a hearing...
There are 20-something reasons listed, including failure to comply with a court-order....
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