Love Your Lawyer Suit - FLDS Does Not Put Children In Danger

Admin September, 30th 2015 Comments 844 Views

“I am… an attorney with Texas Rio Grande Legal Aid…currently representing forty-eight mothers in the child custody proceedings that began as a result of the raid of the YFZ [Yearning for Zion] Ranch in early April.

Last month, TRLA filed a Writ of Mandamus with the Third Court of Appeals in Austin, Texas, on behalf of the mothers, where we argued the state did not follow Texas law when they took these children without providing any evidence that these households were creating abusive environments.

The Third Court ruled on this matter, and stated that Child Protective Services had no evidence that these children were in imminent danger and that CPS acted hastily in removing them from their families. According to the Court, the existence of the FLDS [Fundamentalist Church of Latter Day Saints] belief system, as described by the department’s witnesses, by itself does not put children of FLDS parents in physical danger.

As you can imagine, both TRLA attorneys and the parents we represent are ecstatic about this news. In ruling this way, the Third Court of Appeals has stood up for the legal rights of these families and given the mothers hope that their families will be brought back together very soon.

It is a great day for families in the state of Texas.”

While many of you have probably followed the drama of this intriguing story of national interest as it unfolded in the news, you may not know that two of the key players in the case are locals. In fact, Julie Balovich and Amanda Chisholm, lawyers for TRLA and residents of Alpine, are two of the ten attorneys responsible for the return of the children to their parents after six weeks in state custody.

To recap: In late March, a woman called a domestic violence shelter, claiming to be a 16-year-old who lived at the “Yearning for Zion” ranch, near the town of Eldorado, TX in Schleicher County (about a 225-mile drive northeast of Alpine), reporting that she was sexually and physically abused by her 50-year-old “husband.” The shelter contacted the Texas Department of Family and Protective Services’ Child Protective Services (CPS), and the investigation of this community of fundamentalist Mormons began, resulting in a raid, beginning on April 3, in which CPS and law enforcement officials “took possession of all 468 children at the Ranch without a court order,” as the Supreme Court of Texas decision reads, ostensibly to protect the children from an immediate threat to their physical health and safety.

In what CPS has called “the largest child protection case documented in the history of the United States,” the agency claimed to have ample evidence of a “pervasive pattern and practice” of abuse in the YFZ community.

Two weeks later, in a hearing in State District Court in San Angelo on April 17 and 18 – the courtroom so jam-packed with attorneys for both parties, attorneys ad litem (“for the suit,” appointed to protect underage clients), guardians, and others that an additional auditorium was filled with the overflow – Judge Barbara Walther ordered that the children remain in the department’s temporary custody, and mandated DNA testing of each child to determine maternity and paternity.

All of the children older than 12 months were then separated from their mothers and relocated to foster homes and other state-overseen facilities in various and sometimes far-flung parts of the Lone State.

Thirty-eight of the mothers petitioned the court of appeals seeking a return of their 126 children; on May 22, the Third District Court of Appeals ruled that CPS failed to meet its burden of proof under Texas law (as detailed in Balovich’s statement above) and “vacated the temporary orders” which granted CPS custody.

CPS then petitioned the Supreme Court of Texas for a review. On May 29, the Supreme Court of Texas, “In Re Texas Department of Family and Protective Services Realtor On Petition for Mandamus (No. 08-0391)” issued its opinion: “We are not inclined to disturb the court of appeals decision.” Included in the court’s relatively brief, 905-word decision was this unambiguous statement: “On the record before us, removal of the children was not warranted.” The argument put forth by ten TRLA public defense attorneys prevailed in the court of appeals and in the state’s highest court.

By June 3, all of the children were released back into the custody of their parents; some of the families have since returned to the YFZ Ranch, some remain in different homes rented during the time their children were in state custody.

What got extensive coverage in the media was:

• YFZ parents and children are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) which practices polygamy, in which a man has multiple wives. Many individuals who have left the sect claim that the FLDS’ brand of polygamy is not amongst consenting adults, and results in rampant physical, mental, and sexual abuse, and that the marriages or “spiritual unions” often involve girls being forced to wed much older men, under the threat of “eternal damnation” if they don’t cooperate, and that many girls and women who do comply willingly with such arrangements have been indcotrinated or brainwashed since birth.

• FLDS women have weird hairdos and wear “prairie dresses” and are often portrayed as “brainwashed drones.”

• In late 2003, some members of the FLDS group left their base on the Utah-Arizona border to relocate in West Texas, creating the YFZ “ranch,” a 1,700-acre complex where hundreds of FLDS members live; it also contains gardens, an orchard, a dairy, a quarry, well-manicured and irrigated lawns, and many buildings, including a multi-story, stunningly bright white temple. Its members are said to be “reclusive” and anti-outsider, and the complex is most often referred to as a “compound.”

*The group’s leader (since 2002) is Warren Jeffs, currently in jail in Kingman, Arizona, convicted in September of last year for being an accomplice to rape. He had evidently married a 19-year-old man to a 14-year-old girl against her will. (Jeffs was sentenced to two terms of five years to life in prison.) He is also charged in Arizona as an accomplice with four counts of sexual conduct with a minor and awaits trial for these charges. (In late May, investigators from the Texas Attorney General’s office took DNA from Jeffs, saying they were looking for evidence of relationships between him and four girls from the Yearning For Zion ranch.)

What did not get much (if any) media coverage was most of what I learned from phone conversations and email exchanges in late June with Alpine attorneys Chisholm and Balovich, who several times each referred to their experience in the case as “surreal.”

Balovich would see how the story was being portrayed on TV, she said, and “it didn’t seem like we were talking about the same thing.”

It’s important to note that while the news media, perhaps understandably, largely focused on the sensational aspects of the “outsider” FLDS culture and the elaborate infrastructure of the ranch itself (often it seemed, with the zeal of some 19th and 20th Century anthropologists who’d discovered a “lost” civilization in the South Pacific), at issue for Chisholm, Balovich and the other attorneys hard at work for the YFZ parents was the legality of the state removing the children from their homes while it conducts its investigation of possible child abuse.

As their successful appeal clarifies, “Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse, as [CPS] contends, there is no evidence that this danger is ‘immediate’ or ‘urgent’ as contemplated by section 262.201 with respect to every child in the community…. The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing the children form their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.”

While CPS agents repeatedly insisted (and the media largely regurgitated this insistence) that the agency had no choice but to pull children from the YFZ ranch, that it was acting out of extreme concern for the safety and well-being of those individuals, Chisholm and Balovich found the actions of the state in the ensuing weeks “unbelievably horrible.”

For starters, said Chisholm, the initial investigation by CPS to question YFZ members was instigated at 9 pm, and subjects, including young children, were questioned well into the night, while armed agents (and a tank) surrounded them.

Then, once YFZ children were taken into custody, those under five years old were initially allowed to remain with their mothers, albeit all housed in a sports coliseum in San Angelo (anyone reminded of New Orleans after Hurricane Katrina?). Mothers’ mobile phones were confiscated, said Chisholm, and the coliseum entrances/exits were barricaded and guarded by Department of Public Safety (DPS) agents. CPS maintained that it was not preventing mothers from leaving the premises; if a mother left, however, CPS would not allow her back in. “If you had a child in there, what would you do?” asked Chisholm, who represents 4 of the mothers.

Further, after being blocked for an entire day by DPS from access to her clients into the coliseum, Balovich was forced to file a motion for a lawsuit before agents relented.

Those of you following the story may have noted that the number of children taken into state custody kept changing. The reason? Apparently caught up in the inertia of the case, some state officials accused many of the FLDS women of lying about their age, insisting that the women looked younger than 18; those who didn’t pass the “eyeball test” were proclaimed minors – often despite birth certificates and driver’s licenses with information to the contrary – and told they were no longer allowed to speak to their (original) lawyers (though each child is assigned an attorney ad litem).

Then CPS separated all children older than one year from their parents, causing untold stress for everyone involved and in particular for breastfeeding children who were suddenly and involuntarily weaned; breastfeeding mothers forced to pump breast milk many times a day, and worry exponentially more.

“Amanda and I both had clients who were breastfeeding,” said Balovich, who represents 7 of the mothers, “yet in one case [for example] my client was only seeing her daughter for only an hour a week.”

In another case, Chisholm learned from one of the ad litem attorneys that a breastfeeding baby just separated from its mother (one of her clients) would not feed from the surrogate, something that could quickly turn into a life-or-death crisis. Further, Chisholm and the mother were unsure where the baby was. When the baby was finally located, the CPS caseworker, says Balovich, refused to allow the baby to nurse with or see its mother, instead merely retrieving bottled breastmilk from the child’s mom to bring back to the child.

Sibling groups were split up, special needs and medical histories were for the most part ignored. “We kept saying ‘How can you do this with this little information, just ship them out?'” said Balovich. One child of a client of Balovich’s did not receive his essential daily physical therapy for the three weeks he was separated from his mother in state custody.

Perhaps most frustrating in the midst of these constant crises was the bureaucratic wall. “A lot of our day was spent pinpointing Who’s calling the shots? Who’s making the decisions? Who can fix this situation?” said Balovich. “A lot of our day was spent on the phone, trying to track people down.”

In many cases, children from the same family were split up, creating logistical and emotional nightmares for parents trying to locate their children, much less visit each of them. In one family Balovich represented, “there were five kids placed in three different facilities.” And the assigned caseworkers kept being switched.

Plus, it turned out that the CPS list of where each child went was not always accurate. Balovich told the story of being “called by one of my moms at 11 pm on a Friday night, saying ‘Julie, you must find my son!'”

Some children, separated suddenly and forcibly from their parents, were in shock and dehydrated from the trauma.

“It didn’t seem like there was any sort of thoughtfulness to the plan. Nobody would listen. [CPS] just would not negotiate. It seems to me,” noted Balovich, “that for their proported purpose, this had to be the worst way of going about it.”

For these two attorneys, this kind of case is the very reason they work for Texas RioGrande Legal Aid, a non-profit organization started in 1970 which “provides free legal services to low-income and disadvantaged clients in a 68-county service area that covers the southwestern third of the state, including the entire Texas-Mexico border region,” from El Paso to Austin to Corpus Christi, and everything in between, south of I-10. (Lone Star Legal Aid covers east Texas; Legal Aid of Northwest Texas covers Dallas and the Panhandle.)

“This is exactly why I work for Legal Aid,” said Balovich, 34, raised in Lake Dallas, and a ’99 graduate of University of Texas-Austin, who has worked for legal aid for her entire law career. Celebrating great support from the whole TRLA staff, Balovich cited in particular their boss, David Hall: “His thinking is If there’s an injustice, go out and fight it.”

Chisholm, 32, a native of Louisiana with an undergraduate degree in English literature from Nicholls State University, has been practicing law since 2003 when she graduated from UT-Austin. “CPS has a job to do – an important one. They need to follow up on allegations of abuse. But to go into a community and remove every single child…is a huge violation. It’s in everybody’s best interest that we have some sort of checks on government.”

If CPS did more harm than good to the YFZ families it temporarily broke up, the custody battle had a profound ripple effect on hundreds, probably thousands of others as well, including the 500+ lawyers involved in the case, and their families.

“It literally took over our lives for six weeks solid,” said Balovich. Besides having to de-prioritize nearly every everything else in their professional lives – in any given week, Chisholm, for example might have 35 open cases and a slew of applications for legal aid to review – the YFZ custody case took a huge toll on their personal lives.

“We were gone for days at a time,” said Balovich “The first week we were in San Angelo from Monday to Saturday; the second week we were there from Monday ’til Wednesday morning. A day later, I had to go to Austin for a conference; I ended up skipping the conference to work on the mandamus, and I was gone until Saturday morning. The third week I had to go to San Angelo to pick up the court reporter’s record then drive to Austin to work on the mandamus and to San Antonio to meet with clients….We were gone a lot!”

“I slept three or four hours a night, for weeks and weeks,” said Chisholm. “I don’t know if Julie slept at all…. Clients were calling constantly. Understandably. We were having to talk to them over and over, them asking ‘When are we going to see our children again?'”

For Chisholm, who has a two-and-a-half year old son, Owen, witnessing such heartbreak was excruciating. “It was heartbreaking as a mother to see children separated from their parents – and as a lawyer to see the legal system flop…. It was hard on lots and lots of levels.”

Chisholm credits her “wonderful” husband, Jim Thompson, and her parents, Susan and Clayton Chisholm, who also live in Alpine, for picking up the slack. “I don’t know how I would’ve gotten through without them…. [Jim] understood what I was going through emotionally. I was terrified he wouldn’t get it.”

Balovich told of one point in the midst of this when her husband, Jim Saunders, Education Coordinator at the Chihuahuan Desert Research Institute in Fort Davis, called her to discuss a medical issue about one of their dogs: “I just couldn’t deal with it. My poor husband…. I sort of shut down.”

When she learned that she’d be involved in the case, Balovich called Chisholm to say “If I’m going, you’re going.” Balovich is particularly pleased to work with Chisholm, whom she lauds as “fantastic” lawyer and writer. “We were each other’s saving grace.”

In dealing with the YFZ case, says Balovich, “We were in total crisis mode. There was a fire to put out every single day. I remember thinking This is never going to end.”

Thankfully, the custody ordeal, at least, did end. “These suits can last 12 months – and in some instances, up to 18 months,” noted Chisholm.

So why did this one end so relatively soon?

“Honestly?” said Balovich. “We were right. There were three things the state had to prove*, and there was no evidence of these.”

Initially the TRLA attorneys representing the FLDS mothers thought their appeal would be “a shot in the dark.” Once it was written, however, they realized that “legally, it is the only way the court could have ruled,” said Balovich.

Then there was the media frenzy.

“We generally would not allow our clients to talk to the media. We were in the middle of a lawsuit,” explained Chisholm, who was concerned that her clients would be exploited. “Then we began to realize we were losing this case in the media.”

“I started to figure the media game out pretty quickly,” mused Balovich. “I’d get calls saying ‘Julie Balovich! I need to put you on The Today Show. Are you ready?’ And I’d think, ‘Oh! My gosh! They need me.’ I didn’t really want to be on The Today Show, but I remember thinking ‘This is the only way they’re going to cover [this side of] the story.’ I felt an obligation to our clients.”

Though Balovich never made it onto The Today Show, she did have a one-minute cameo on Dateline, after not having eaten all day, having gotten only 3 hours of sleep, and wearing no makeup.

One of the pair’s favorite recollections from the media frenzy is a Dateline producer remarking to Chisholm “Hey, I like your lawyer suit!”

Balovich has learned “You can never judge a case by what you get from the media…. I mean, I love NPR [National Public Radio]…. I talked to this NPR reporter, and it was clear he had a story angle in mind [from the start]. He would ask me questions, and I would just answer them – and then he would cut the quote to fit his angle.”

Finally Balovich learned to be a politician, it seems. “By the third time [talking to same NPR reporter], I was savvy…. His angle was ‘CPS had to do this.’ So when he asked me ‘What was bad about the court’s decision [regarding the appeal]?’ I just kept saying ‘We’re just glad the children are going home.'”

Most infuriating for Balovich was the way most news outlets, including CNN and the New York Times, she claims, would simply take the CPS press releases and run with them, not question, not dig deeper. “It would make me so angry. Over and over, CPS talked about how our clients were lying. As far as I was concerned, that’s what CPS was doing: bald-faced lying.”

With the May 29 TX Supreme Court decision, the media pretty much stopped calling.

Since June 3, when the children were released from state custody back to their parents, noted Balovich, ” wecould finally breathe again.”

“There’s a huge weight off my shoulders,” explained Balovich. “I didn’t want to talk to anyone. I just wanted my moms to be with their kids. I got a voicemail message, this little chorus of [my client’s] twins saying, ‘Hi Julie!’… I had never even spoken to those kids that I’d spent all this time fighting for…. I took some time out, just veg-ed. My husband and I went to Balmorhea for a day.”

“I slept a bunch. And ate a lot of cake,” mused Chisholm. “We tried to celebrate the night the [Texas Supreme Court] decision came down by going to Reata for a nice dinner, but we were so exhausted.”

Perhaps more profound for the two was not what happened after the TX Supreme Court decision, but what stopped happening. “Everything changed so suddenly with the Supreme Court decision, it was kind of eerie,” said Chisholm. “Of course, there was still work to do; Julie went to San Angelo that week to work on getting the judge to sign new temporary orders. But the type of stress and work and constant telephone calls and e-mails that we had become accustomed to – all of that stopped, or at least decreased to a normal level. It felt weird and quiet and it took a while for us to come all the way up for air, for our bodies to release all of the stress and adrenaline and for us to really believe that all of this was true.”

Decompression from the ordeal will evidently not be as easy for the YFZ families. “My clients are really happy to have their children home,” wrote Balovich. Yet they “are trying to help their children feel secure again. It’s going to be a process.”

Normally in cases of traumatic separation of children from their parents, Balovich would recommend professional counseling, she said. But in this case, “I don’t think these kids can see another stranger without thinking they might get taken away.”

Requests from the Gazette to speak directly with their FLDS clients were denied. “As you would expect,” wrote Chisholm, “our clients are preoccupied with their children right now and not doing any media interviews at the moment.”

Though the original phone call which launched the investigation is now believed to be a hoax, CPS and the Texas Attorney General are continuing an investigation of the YFZ ranch. According to the San Angelo Standard Times, on June 26, a Schleicher County grand jury opened its investigation into the FLDS Church “with a marathon day of evidence that produced no indictments as yet.”

On Friday, June 27, the Commissioner of Texas’ Department of Family Protective Services, Carey Cockerell, announced that he is retiring August 31, offering no specific reason for his departure except that he’s “been thinking about retirement since late last year.” As Commissioner since 2005, Cockerell said he’s “proud of the improvements we made in our programs, but I’m even prouder of the thousands of caseworkers and other staff who made it all possible. They really came together and supported the rebuilding of the agency into one that was stronger and better equipped to protect Texans.” The release includes a list of Cockerell’s accomplishments – with no mention of the Department’s April raid of the Yearning For Zion ranch.

Requests from the Gazette for information and comment from Marleigh Meisner, CPS spokesperson, were not returned by press time.

According the Fort Worth Star Telegram, the cost for “operations related to the roundup” has already cost the state $14 million – “and a chunk of invoices for such expenses as overtime, travel and professional services have yet to be submitted.” $7 million of that will go to litigation expenses alone. And another $110,000 is charged to the Texas Attorney General’s office for the cost of “DNA testing on adults and children from the sect in an effort to positively identify the parents of every child who had been taken into custody.”

Both attorneys were unequivocal in their responses to questions about their impressions of the FLDS women and the safety of the children in their care.

“They are really great mothers. They are sweet and caring. Their children are very well-behaved,” commented Chisholm. Further, she marveled, in the midst of this crisis, “they were a lot kinder than me…. They had faith, they didn’t have the screaming fits I would have had.”

“I feel confident that my clients can follow the laws of the state of Texas,” said Balovich.

When asked about her clients’ connection to their leader, Warren Jeffs, Balovich is equally clear. “Let’s assume he is their spiritual leader, and he is guilty: people who believe in [him] are not necessarily implicated…. All of these parents are individuals…. This case is about government accountability…. CPS gets all this deference granted to them…. Before they take a child away, they’re supposed to meet the standards. The courts held them to the law. They can continue their investigation cautiously….I think our moms are good moms.”

Although they have not personally met him, Willie Jessop, spokesperson for the FLDS Church, apparently agrees, and lauded the attorneys’ work on behalf of the YFZ families.

“When we’d given up hope on the system,” Jessop proclaimed at a press conference just after the TX Supreme Court decision was issued, “it ends up being some kind-hearted attorneys that were willing to take up this fight.”

Ultimately, at issue for these attorneys is not whether the state has the right to investigate the sect, but rather whether it has the right to invade the citizens’ homes and abscond with their children with insufficient evidence of abuse.

“The state [of Texas] alleges that the FLDS culture and parents allowed [underage pregnancies] to happen. Underage pregnancies happen in the general public,” insisted Chisholm, “yet I don’t know of any other cases in which the state takes the mother from the family, or the baby from the underage mom….I don’t know about you, but I don’t want the state determining my mindset.”

*To read the Writ of Mandamus other court documents, and for more in-depth coverage of this ongoing story, please visit the San Angelo Standard Times (click on “Mandamus Decision” under “Court Documents” for TRLA appeal).

“After I got to know [the FLDS women] and spend time with them… they’re not ‘Stepford Wives,’ they’re not these brainwashed zombies,” said Texas RioGrande Legal Aid attorney and Alpine resident Amanda Chisholm (above, on right, with FLDS client, at Yearning For Zion ranch near Eldorado, TX). “They’re all very intelligent. Some are very funny. They have individual personalities.” (Photographer unknown)

An “ecstatic” Texas RioGrande Legal Aid attorney Julie Balovich (above, left) with FLDS client addressed a crowd outside the Tom Green County Courthouse in San Angelo, TX on May 22 after the legal aid attorneys won the appeal in the Third District Court which forced the state to release hundreds children back to the custody of their FLDS parents from the Yearning For Zion ranch. The decision was upheld on May 29 by the TX Supreme Court. (Brian Connelly, photo, courtesy of San Angelo Standard-Times)

Note: A “mandamus” (Latin for “we command”) is a writ from a superior court to an inferior court or to an officer, corporation, etc., commanding that a specified thing be done – or commanding that something be refrained from, required by law. A writ or order of mandamus is an “extraordinary” court order, as it is made without full judicial process, or before a case has concluded.