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FLDS Children Going Home?

Posted in Opinions & Judgments

In In re Steed (No. 03-08-00235-CV) (orig. proceeding) (per curiam), the Third Court of Appeals has conditionally granted the petition for writ of mandamus and vacated the district court’s order placing more than 400 FLDS children in state custody.  The Supreme Court of Texas Blog, the ABA Journal, and other media outlets are reporting additional details.

Chief Justice Law, Justice Pemberton, and Justice Waldrop made the decision, but we don’t know who wrote the opinion.  It’s difficult to criticize deciding this case per curiam, given its  highly politicized and controversial subject matter and the national publicity it has received.

Update:  On closer examination, the Third Court’s ruling in In re Steed does not purport to return all the FLDS children in CPS custody, only those belonging to the 38 relators in that proceeding.  The court reached the same result in a related case, In re Bradshaw (No. 03-08-00298-CV), also issued per curiam, which involved three additional relators.

After these orders, however, CPS would presumably change course on all the affected children.

A third case involving three more relators, In re Jessop (No. 03-08-00236-CV), remains pending.

5/23/08 Update:  Per coverage at CNN.com and the Salt Lake Tribune, the State is taking the matter up to the Texas Supreme Court.  The Deseret News posted unsigned PDFs of the mandamus petition and motion for emergency relief apparently filed today.

5/24/08 Update:  Per the Supreme Court of Texas Blog, the response to the State’s motion, the Court’s docket sheet, and a page with the electronic versions of the briefs (which should be updated when any further briefs are filed) are now available through the Texas Supreme Court’s web site.

Given the present uncertainty, I have added a question mark to the title of this post.

  • Doug Conley

    I implore parents, members of the bar and the honorable judges and justices of the state to take the time to read Justice Puryear’s masterful analysis of the interests of parents, children and the state in this concurring opinion.
    Puryear takes a further step in this concurring opinion and states that in these circumstances, he would require “clear and convincing” proof from the trial court and conduct a “legal and factual sufficiency” review of the trial court’s order.
    In my humble opinion, Justice Puryear’s dicta is strongly persuasive and should be followed.
    “dicta may be followed if sufficiently persuasive but are not binding.” Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey’s Executor v. United States, 295 U. S. 602, 627 (1935).
    In In re Steed, the panel did, in fact conduct a “legal and factual sufficiency” review of the order when seeking support for the requirements of Tex. Fam. Code 262.201; however they stopped short of declaring that to be the standard of review.
    Legal and factual sufficiency was merely used as a tool to reach a finding of “abuse of discretion”:
    “The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators’ children with the Department. Consequently, the district court abused its discretion in failing to return the Relators’ children to the Relators.”

  • http://texasappellatelawblog.com D. Todd Smith

    Application of the “abuse of discretion” standard of review was a function of the writ upon which the relators relied to obtain relief from the district court’s order. Mandamus can only be granted if the trial court commits a clear abuse of discretion for which there is no adequate remedy at law (i.e., an appeal). Notably, the court of appeals’ opinion doesn’t address the inadequacy of any legal remedy.

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