Polygamy Ruling Raises Legal Debate on State Power

Well, Professor Dixon, take us back to when officials first went into the ranch. What was their legal justification? And what does Texas law allow?

JESSICA DIXON, Southern Methodist University School of Law: The legal justification in this case was that a teenage mother called a referral line and stated that she had been physically and sexually abused by her spiritual husband, who was significantly older than her.

And upon further investigation, CPS found that there were several girls who they thought were underage who were pregnant and had children under the age of 17.

Where we are now is that the Court of Appeals has stated that at least 38 of these mothers, the order of the court should be dismissed or vacated, and that the children should be returned to their parents.

It should be noted, however, that all of the mothers were not part of this appeal. It was only 38 of the mothers.

JEFFREY BROWN: How unusual a case is this?

JESSICA DIXON: Very unusual. It's very unusual for there to be this number of children removed at the same time. It's very unusual for there to be a question as to who the mother of the children are, because typically we know who the mother is when a child comes into state care.

But in this case, there had to be DNA testing in order to prove which children belonged to which mothers.

JEFFREY BROWN: And at the same time, are there issues involved here, as unusual as it is, that come up in fairly routine cases?

JESSICA DIXON: Yes. In routine cases, we typically do have to do DNA testing or paternity testing to determine who the fathers are, because in most of the cases the parents are not married, and so there's an issue as to who the legal or biological father of the children are in cases.

There are cases where families are living in the same household even and, in those cases, each mother has a separate cause number or case with her own specific children, and the state moves forward with evidence that that particular child or children have been abused by that parent.

JEFFREY BROWN: Now, as you said, today the Texas appeals court overturned the action by the state. You've had a chance to look at that opinion. What jumps out at you? Give us some specifics about their ruling.

JESSICA DIXON: Well, one thing that jumps out is that the court stated that one of the reasons that CPS testified that there was a removal was because of the persuasive belief system in the sect that basically groomed males to be sexual perpetrators and females to be victims of sexual abuse.

And in the opinion, the court stated that it wasn't just the belief system that it existed, but it was the imposition of that belief system on the children in that particular family.

So it spoke volumes with regard to how a belief system can affect children and whether parents can raise them with the particular belief system and how that affects whether the parents should have custody of that child.

The other thing that jumped out was that it talked about immediate and continuing danger to a child. And in this case, as you stated before, many of these children are infants. And so they haven't reached the age of puberty, which was the concern of the state, as far as these children becoming victims of sexual abuse.

And it basically went forward to say that these children were not in any immediate danger and the state could not remove children, stating that, well, in some years or in years to come in the future, the child would be in danger. There needed to be some danger that was imminent in order for these children to be removed from their parent.

JEFFREY BROWN: And how common is something like this, where an action by the state child protection services is overturned by a court?

JESSICA DIXON: It's not that common, but it also is not that common that a parent goes forward to appeal a ruling from a 14-day hearing. Typically, our parents are indigent and they can't afford to go forward with an appeal or they choose not to. So it is very uncommon that a 14-day hearing is overturned.

JEFFREY BROWN: And what happens next as a legal matter? As you said, I think it was only 38 of the about 200 mothers who were involved in this particular appeal. Would this decision apply to the rest? Is that the thinking now? And will the state have an opportunity to appeal?

JESSICA DIXON: The state could appeal. They could file a motion for rehearing with the Court of Appeals or they could petition the State Supreme Court.

I'm not sure whether or not this case -- well, the ruling was conditional, and so it did speak to just the relators, or the 38 women. But the problem that the state will have is that they filed this case and all the mothers are under one order.

So all the mothers and all the children, all 440 children are under one particular cause number and one case only. So if they vacate that order -- that means that the order is -- it would seem to me that it would be vacated for all of the children.

But there are some children that have outcried, and the state could go ahead and file additional petitions to try to maintain custody of those children who have made outcries of physical and sexual abuse.

JEFFREY BROWN: And, briefly, for now, does it look like then the children will be going back soon to the ranch?

JESSICA DIXON: It looks that way. They should be returned to their parents. And unless there is another ruling that comes down within the next 10 days, the state will have to return the children to the parents.

JEFFREY BROWN: All right, Jessica Dixon of SMU School of Law, thank you very much.

JESSICA DIXON: Thank you.