SOUTHEAST TEXAS RECORD

AUSTIN � Three justices on the Texas Supreme Court agreed with the other six that the state lacked evidence to take boys and little girls from their parents at the Yearning for Zion Ranch. The three believe, however, that the state did act properly when it removed pubescent girls from the ranch near Eldorado.

"The record demonstrates that there was evidence to support the trial court's order as it relates to pubescent female children," Justice Harriet O'Neill wrote.

Justices Phil Johnson and Don Willett joined O'Neill in partial dissent from the Court's May 29 decision overturning state custody of 468 children taken from the Fundamentalist Church of Jesus Christ of Latter Day Saints compound.

The FLDS, is a breakaway sect of the Mormon church and still practices polygamy. Texas authorities raided the YFZ Ranch after calls were made to a domestic abuse hot line, purportedly from a 16-year-old mother at the ranch who said she was being abused by her middle-age husband.

O'Neill wrote that evidence "indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch."

She faulted the majority for holding that the Department of Family and Protective Services should have tried other ways to protect the children before taking custody.

"Evidence presented in the trial court indicated that the actions of the children and mothers precluded the Department from pursuing other legal options," she wrote.

In interviews, she wrote, children "would not identify their birth dates or parentage, refused to answer questions about who lived in their homes, and lied about their names."

Documents were shredded just before the department arrived on April 3, she wrote.

The department couldn't file verified affidavits, she wrote, and it couldn't seek a restraining order "as it did not know whom to restrain."

The department "took reasonable efforts, consistent with extraordinarily difficult circumstances, to protect the children without taking them into custody," she wrote.

On April 3, the department took the children from their parents without a court order.

Texas law allows that only if the department has enough knowledge or information of sexual abuse or immediate danger.

To continue custody, the department asked Schleicher County District Judge Barbara Walther for emergency orders. She issued the orders April 18.

Thirty-eight mothers petitioned for mandamus review at the Third District appeals court in Austin, and the Third District directed Walther to vacate the temporary orders.

The department petitioned the Supreme Court, to no avail.

"On the record before us, removal of the children was not warranted," the majority held in an unsigned opinion.

They wrote that "the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care."

They wrote that when Walther vacates her orders, she can grant other appropriate relief to protect the children.

They agreed that the case involves fundamental issues of parental rights and state interests, but they added that "it is premature for us to address those issues."

The children were allowed to leave foster care after the Supreme Court's ruling that the state overreached by taking all the children even though evidence of sexual abuse was limited to five teenage girls. Half the children taken from the ranch were no older than 5. All 440 children were returned to parents by June 4.

However the Texas Department of Public Safety and the attorney general's office are continuing the criminal investigation at the request of authorities in the rural ranching community.

The high court's ruling does not impact the criminal investigation, which will include the examination of trailer loads of documents confiscated during the raid on the ranch. Authorities removed all documents and photos they say might show relationships between underage girls and older men.

Marilyn Tennissen contributed to this story with information from The Associated Press.