FDLS Appeal(s) Will Come to Austin

By April 22, 2008March 8th, 2019Jurisdiction, News & Politics, Procedure

The West Texas town of Eldorado is more than 200 miles from Austin.  So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U.S. history") will be heard by the Third Court of Appeals, right here in the Live Music Capital of the World.

Surprisingly few Texas family law bloggers have weighed in on the FDLS matter.  I’m sure some of them were among the hundreds who volunteered to serve as court-appointed ad litems in more than 100 child removal cases the State filed in the 51st District Court (which serves Schleicher County and nearby Tom Green County, among others).  What an incredible effort.

It will be interesting to see how the appeals will be handled logistically.  Some of the attorneys involved have identified Judge Barbara Walther’s decision to hear the State’s evidence en masse, rather than child-by-child, as a potential ground for reversal.  I suspect the challenges arising from the sheer numbers will carry over into the appellate court to a significant degree.

Join the discussion 3 Comments

  • Doug Conley says:

    Good. The most important issue at stake here is the unlawful standards by which Texas courts use to limit a parent’s access to their children. Texas uses preponderance at trial and abuse of discretion on review. I believe that this is incorrect.
    The Honorable Justice Puryear in our 3rd COA is the only Texas appellate judge that I am aware of that supports this. The standard at trial should be clear and convincing.
    Justice Puryear believes “[…]that the current standards of proof and review applied by Texas courts are inconsistent with the constitutional nature and importance of the rights at issue and our legislature’s stated policy and directives, I would review this order under a heightened standard.
    See Troxel v. Granville, 530 U.S. 57, 65 (2000) (fundamental liberty interest of parents in relationship with children is constitutionally protected); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (parent’s interest in care, custody, and management of children paramount and due greater respect than liberties derived from mere shifting economic arrangements); Tex. Fam. Code Ann. §
    153.193 (West 2002) (limitations or restrictions on parent’s right to possession of or access to child “may not exceed those that are required to protect the best interest of the child.”). Accordingly, I would require the trial court’s order to be supported by clear and convincing evidence and conduct a legal and factual sufficiency review of that order.”
    See: In re L. M. M., No. 03-04-00452-CV
    “The custody issue […] is one faced by trial courts countless times every day. Yet, while the liberty interest at issue is “perhaps the oldest of the fundamental interests recognized,” Troxel v. Granville, 530 U.S. 57, 65 (2000), the standards by which the trial courts decide and consequently, by which appellate courts review these decisions offer minimal recognition of the gravity of the liberty interests parents and children hold in their relationships and little protection to the individuals involved. Our trial courts operate under a preponderance of the evidence standard in these cases and appellate courts apply an abuse of discretion standard in reviewing those decisions. Thus, even against the background of these monumental rights and explicit legislative directives to limit a parent’s time with a child only as necessary, see Tex. Fam. Code Ann. § 153.193 (West 2002), a trial court, if it were ever so slightly more persuaded in one direction than another, may make a decision profoundly affecting the rights and abilities of parents to raise their children, and unless we can say that no reasonable mind could have reached the court’s conclusion, we leave it undisturbed.” See: In re J. R. D., 169 S.W.3d 740 (Tex.App. Dist.3 07/14/2005)
    Puryear further states in J.R.D.: “[….]I believe we need to carefully re-examine the standards by which decisions that limit a parent’s access to or possession of a child are made and reviewed.”
    Perhaps now is the time…?
    I certainly hope so.

  • Third Court to Hear FLDS Mandamus April 29

    It turns out that Tuesday’s post about FLDS appeals coming to Austin was timely. According to this press release and what I can gather from the Third Court of Appeals’ web site, lawyers for Texas RioGrande Legal Aid filed a…

  • Magus Amathion says:

    I am a priest and not a lawyer. I have been following this case. What I can’t understand is why the FLDS Lawyers haven’t filed Genocide charges against the police, CPS, and Judge Walther in Federal Court. They are clearly in violation of U.S.C Title 18, Part I, Chapter 50A, Section 1091 on Genocide.
    (a) Basic Offense.— Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
    (1) kills members of that group;
    (2) causes serious bodily injury to members of that group;
    (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
    (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
    (5) imposes measures intended to prevent births within the group; or
    (6) transfers by force children of the group to another group;
    or attempts to do so, shall be punished as provided in subsection (b).
    (b) Punishment for Basic Offense.— The punishment for an offense under subsection (a) is—
    (1) in the case of an offense under subsection (a)(1), where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and
    (2) a fine of not more than $1,000,000 or imprisonment for not more than twenty years, or both, in any other case.
    (c) Incitement Offense.— Whoever in a circumstance described in subsection (d) directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.
    (d) Required Circumstance for Offenses.— The circumstance referred to in subsections (a) and (c) is that—
    (1) the offense is committed within the United States; or
    (2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)).
    (e) Nonapplicability of Certain Limitations.— Notwithstanding section 3282 of this title, in the case of an offense under subsection (a)(1), an indictment may be found, or information instituted, at any time without limitation.
    They have taken by force (tanks and guns were used in the raid) the chilren of the FLDS and given them to Baptists. This seems to me to be an open and shut case of subsection (c) Genocide. I think the real problems that the lawyers are having with the en masse proceedure is that it is far more than an irregular procedure. It’s a crime and the crime the State of Texas is commiting is Genocide as defined by US law. This action will destroy the FLDS (a religious group) in that gated community in Eldorado.