AUSTIN, TX -- The ACLU of Texas and the American Civil Liberties Union today submitted a friend of the court brief with the Texas Supreme Court opposing a petition from the Texas Department of Family and Protective Services (TDFPS) to retain custody of the children of 38 mothers from the Yearning For Zion Ranch (YFZ) in Eldorado, Texas. 

Last month, TDFPS seized more than 400 children during a raid on the YFZ Ranch, where individuals affiliated with the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) resided; the children have since been dispersed to foster facilities across the state. In its brief supporting last week's unanimous ruling by a three-judge panel of a Texas appellate court, the ACLU asserts that the state's only evidence of harm was general allegations related to the parents' "culture," "belief" and "mindset." Further, before the state may deny a mother access to and custody of her child, the U.S. Constitution and state law require the mother be assured of due process of law -- including a fair hearing, individualized consideration of the evidence, and proper application of state law.

"Children and parents have the right to be together unless it is determined, applying the proper legal standards adopted by the state and consistent with the U.S. Constitution, that temporary or permanent removal is necessary," said Daniel Mach, Director of Litigation for the ACLU Program on Freedom of Religion and Belief. "When the state has actual evidence of ongoing or imminent child abuse, it certainly should separate children from their abusers, but children may not be separated from their parents based solely on the state's disagreement with a group's thoughts or beliefs, religious or otherwise." 

In its ruling last week, the Texas Third Court of Appeals found that the state had offered "legally and factually insufficient" grounds for the "extreme" measure of removing all children  -- from babies to teenagers -- from the YFZ ranch. As the appellate court concluded, "[t]he existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger."

The ACLU brief filed today raises a number of concerns about the lack of procedural safeguards employed by the state. First, the ACLU argues that the state failed to provide parents a fair, individualized custody hearing at the highly unusual and frequently chaotic mass proceeding held before a district court on April 17 and 18, 2008. Second, the ACLU asserts that Texas custody law must be applied fairly, impartially, and without bias to the mothers.  Finally, the ACLU argument focuses on a parent's right to care for her child, a right both state and federal courts have found to be more "precious" than property rights.

"State officials have an important obligation to protect children against abuse," said Lisa Graybill, Legal Director for the ACLU of Texas. "However, such actions should not be indiscriminately targeted against a group as a whole -- particularly when the group is perceived as being different or unusual. Actions should be based on concrete evidence of harm and not based upon prejudice against religious or other communities."

The ACLU released a public statement May 2 in the wake of TDFPS' raid on the Yearning For Zion Ranch expressing serious concerns that the state's actions did not adequately protect the fundamental rights of the children or their parents. A subsequent statement released May 22 applauded the Texas Third Court of Appeals for seeking to ensure that members of the Fundamentalist Church of Jesus Christ of Latter-day Saints receive the due process to which they, like all Americans, are entitled.

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To view ACLU's statement of May 2nd, click here.

To view ACLU's statement of May 22nd, click here.

Additional information about the ACLU Program on Freedom of Religion and Belief can be found online here. 

To view the friend of the court brief, please click the link below.