IN THE SUPREME COURT OF
Family and Protective Services, Relator
On Petition for Mandamus
Justice O’Neill, joined by Justice Johnson and Justice Willett, concurring in part and dissenting in part.
In this case, the Department of Family and Protective Services
presented evidence that “there was a danger to the physical health or
safety” of pubescent girls on the Yearning for Zion (YFZ) Ranch from a pattern
or practice of sexual abuse, that “the urgent need for protection required the
immediate removal” of those girls, and that the Department made reasonable
efforts, considering the obstacles to information-gathering that were presented,
to prevent removal and return those children home. Tex. Fam. Code § 262.201(b)(1)–(3). As to this endangered population, I do not agree
with the Court that the trial court abused its discretion in allowing the
Department to retain temporary conservatorship until
such time as a permanency plan designed to ensure each girl’s physical health
and safety could be approved. See id. §§
263.101–.102. On this record, however, I agree that there was no evidence
of imminent “danger to the physical health or safety” of boys and pre-pubescent
girls to justify their removal from the YFZ Ranch, and to this extent I join the
Evidence presented in the trial court indicated that the Department began its investigation of the YFZ Ranch on March 29th, when it received a report of sexual abuse of a sixteen-year-old girl on the property. On April 3rd, the Department entered the Ranch along with law-enforcement personnel and conducted nineteen interviews of girls aged seventeen or under, as well as fifteen to twenty interviews of adults. In the course of these interviews, the Department learned there were many polygamist families living on the Ranch; a number of girls under the age of eighteen living on the Ranch were pregnant or had given birth; both interviewed girls and adults considered no age too young for a girl to be “spiritually” married; and the Ranch’s religious leader, “Uncle Merrill,” had the unilateral power to decide when and to whom they would be married. Additionally, in the trial court, the Department presented “Bishop’s Records” — documents seized from the Ranch — indicating the presence of several extremely young mothers or pregnant “wives” on the Ranch: a sixteen-year-old “wife” with a child, a sixteen-year-old pregnant “wife,” two pregnant fifteen-year-old “wives,” and a thirteen-year-old who had conceived a child. The testimony of Dr. William John Walsh, the families’ expert witness, confirmed that the Fundamentalist Church of Jesus Christ of Latter Day Saints accepts the age of “physical development” (that is, first menstruation) as the age of eligibility for “marriage.” Finally, child psychologist Dr. Bruce Duncan Perry testified that the pregnancy of the underage children on the Ranch was the result of sexual abuse because children of the age of fourteen, fifteen, or sixteen are not sufficiently emotionally mature to enter a healthy consensual sexual relationship or a “marriage.”
Evidence presented thus indicated a pattern or practice of sexual abuse
of pubescent girls, and the condoning of such sexual abuse, on the Ranch — evidence sufficient to satisfy a
“person of ordinary prudence and caution” that other such girls were at risk of
sexual abuse as well.
Notwithstanding this evidence of a pattern or practice of sexual abuse of
pubescent girls on the Ranch, the court of appeals held — and the Court agrees
today — that the trial court abused its discretion in awarding temporary conservatorship to the Department because the Department
failed to attempt legal steps, short of taking custody, to protect the children.
Based on the language of section 262.201 of the Family Code, I disagree.
Subsections (b)(2) and (b)(3) of section 262.201
require the Department to demonstrate that “reasonable efforts, consistent with
the circumstances and providing for the safety of the child, were made to
eliminate or prevent the child’s removal,” Tex. Fam. Code § 262.201(b)(2), and that “reasonable efforts have been made to enable
the child to return home,” id. § 262.201(b)(3).
The Court suggests, consistent with the mothers’ arguments in the court of
appeals below, that the Department failed to adequately justify its failure to
seek less-intrusive alternatives to taking custody of the children: namely,
seeking restraining orders against alleged perpetrators under section 262.1015
of the Family Code, or other temporary orders under section 105.001 of the
However, the Family Code requires only that the Department make
“reasonable efforts, consistent with the circumstances” to avoid taking custody
of endangered children.
Thwarted by the resistant behavior of both children and parents on the
Ranch, the Department had limited options. Without knowing the identities of
family members or of particular alleged perpetrators, the Department could not
have sought restraining orders under section 262.1015 as it did not know whom to
restrain. See id. § 262.1015. Likewise, it could not have barred
any family member from access to a child without filing a verified pleading or
affidavit, which must identify clearly the parent and the child to be separated.
See id. § 105.001(c)(3) (“Except on a
verified pleading or an affidavit . . . an order may not be rendered . . .
excluding a parent from possession of or access to a child.”). Furthermore, the
trial court heard evidence that the mothers themselves believed that the
practice of underage “marriage” and procreation was not harmful for young girls;
the Department’s witnesses testified that although the Department “always wants
kids to be with their parents,” they will only reunify children with their
parents after “it’s determined that [their parents] know and can express what it
was in the first place that caused harm to their children.” This is some
evidence that the Department could not have reasonably sought to maintain
custody with the mothers. Thus, evidence presented to the trial court
demonstrated that the Department took reasonable efforts, consistent with
extraordinarily difficult circumstances, to protect the children without taking
them into custody.
The record demonstrates that there was evidence to support the trial court’s order as it relates to pubescent female children. Although I agree with the Court that the trial court abused its discretion by awarding custody of male children and pre-pubescent female children to the Department as temporary conservator, I would hold that the trial court did not abuse its discretion as to the demonstrably endangered population of pubescent girls, and to this extent would grant the Department’s petition for mandamus. Because the Court does not, I respectfully dissent.
OPINION DELIVERED: May 29, 2008
 Although referred to as “wives” in the Bishop’s Records, these underage girls are not legally married; rather, the girls are “spiritually” married to their husbands, typically in polygamous households with multiple other “spiritual” wives. Subject to limited defenses, a person who “engages in sexual contact” with a child younger than seventeen who is not his legal spouse is guilty of a sexual offense under the Texas Penal Code. See Tex. Penal Code § 21.11(a)–(b). Those who promote or assist such sexual contact, see id. § 7.02(a)(2), or cause the child to engage in sexual contact, see id. § 21.11(a)(1), may also be criminally liable.
The Family Code defines “abuse” to include “sexual conduct harmful to a child’s
mental, emotional, or physical welfare” — including offenses under section 21.11
of the Penal Code — as well as “failure to make a reasonable effort to prevent
sexual conduct harmful to a child.” Tex.
Fam. Code § 261.001(1)(E)–(F). In determining
whether there is a “continuing danger to the health or safety” of a child, the
Family Code explicitly permits a court to consider “whether the household to
which the child would be returned includes a person who . . . has sexually
abused another child.”