In re Steed
2008 WL 2132014 (Tex. App. 2008)

Facts:

  • The Texas Department of Family and Protective Services removed 468 children from the Fundamentalist Church of Jesus Christ of Latter-Day Saints’ (FLDS) ranch based on allegations that there was immediate danger to the physical health or safety of the children.
  • The FLDS belief system condones polygamous marriage and underage females having children.
  • In order to remove children from their homes and parents on an emergency basis before fully litigating the issue, section 262.201 of the Texas Family Code requires that
    1. There was a danger to the physical health or safety of their children;
    2. There was an urgent need for protection of the children that required the immediate removal of the children from their parents; AND
    3. The Department made reasonable efforts to eliminate or prevent the children’s removal from their parents.
  • Here, the Department relied on the following evidence:
    • Interviews with investigators revealed a pattern of girls reporting that “there was no age too young for girls to be married”;
    • Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen; and
    • The Department’s lead investigator was of the opinion that due to the “pervasive belief system” of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse.
  • Section 262.201 further requires the Department, when it has taken children into custody on an emergency basis, to make a showing of specific circumstances that justify keeping the children in the Department’s temporary custody pending full litigation of the question of permanent custody.
  • This is obviously an extreme measure that should be approached with caution.

Issue:
Whether the Department met its burden with respect to the requirements of section 262.201 for removing children from their homes.

Holding:
No.

Reasoning:

  • The danger must be to the physical health or safety of the child.
    • Here, the Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty.
  • Additionally, the Department also failed to establish that the need for protection of the Relators’ children was urgent and required immediate removal of the children.
    • Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue.
  • Lastly, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators’ children.
    • While responding to a distress call, they removed all of the children without ascertaining alternative measures.

Rule: Evidence that children raised in a particular environment (e.g., polygamy) may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue.