The State of Texas was given temporary custody of the children, along with orders for DNA testing to be done to determine blood lines and relationships.
In early April, 463 believed minors were removed from the Fundamentalist Latter Day Saints (FLDS) compound after U.S. Child Protective Services (CPS) witnessed evidence of child abuse at the Yearning For Zion Ranch (YFZ).
On Thursday, May 22, 2008, the Texas Court of Appeals in Austin issued an opinion stating that not enough evidence was presented at the initial custody hearings for the District Judge, Barbara Walther, to order that 60 day temporary custody be given to the Texas State Child Protective Services.
I contacted Natalie Malonis, attorney ad litem for three of the FLDS children as well as co-counsel for another, to ask her what the legal process was, going forward, in regards to the children.
Malonis has extensive expertise in Family Law, Asset Protection and Estate Planning and Probate. Within Family Law, she specializes in complex, high-conflict custody litigation, as well as issues such as domestic violence, substance abuse and parental relocation.
This interview refers to those initial questions and the follow up questions that were subsequently asked, in order to understand the legal process.
S.D.: Yesterday when speaking to you about the legalities of the Appellate court's ruling and what the next steps were you said the CPS would probably, "file an application for write of mandamus with the Texas Supreme Court essentially asking the Supreme Court to command the appellate court to vacate their ruling".
Can you tell me what type of evidence the CPS would have to produce for the Supreme Court in order for them to vacate the Appellate courts ruling?
Natalie Malonis: Actually what happened today is exactly what I predicted yesterday. CPS petitioned the Supreme Court for a writ of mandamus today, asking that the Supreme Court order the appellate court to vacate its decision. There is no new evidence offered -- everything is by reference to the trial record, which would include a transcript of the proceedings as well as certified copies of all exhibits admitted into evidence and rulings on objections. CPS is making the argument that the Third Court of Appeals substituted its own discretion for the discretion of the trial court in reaching its decision, which is beyond the authority of the appellate court. The State is also arguing that the appellate court in essence engaged in a re-weighing of evidence, which again is beyond the appellate court's authority.
S.D.: You also said that presumably "CPS would seek a stay of enforcement of the appellate court ruling until the Supreme Court makes a decision."
Can you expand on that for readers that aren't aware of what a "stay of enforcement" is?
Natalie Malonis: Again, the State did in fact file an emergency motion to stay enforcement of the appellate court's decision and I expect the Supreme Court to rule on that before the end of the weekend. That is a request that no action be taken on the appellate court's ruling until the Supreme Court considers the case and makes a ruling. I think there is a very good chance that the Supreme Court will order a stay.
S.D.: You also gave me two possibilities of what can happen, one being the Supreme Court overturns appellate court ruling and the case progresses as it has, which is clear enough, and the other was that Judge Walther would have to vacate her temporary orders for those children of the mothers that applied for the writ with the third court of appeals.
My question stems from your comment after that when you said, "At that point Walthers could vacate ALL of the temporary orders and basically start over."
What exactly does that mean, "start over"? Would the court then start from scratch having a hearing for each individual child and deciding custody?
Natalie Malonis: If that is what happens, that throws the whole case in a procedural nightmare. At this point it is really too late to start over because the Family Code requires a hearing within 14 days of taking children into custody. Clearly the 14 day mark has come and gone, so there is really not an opportunity to redo the 14 day hearings. If the temporary orders are vacated, then the children would have to be returned to their parents or whoever is entitled to possession, where they would remain while the case proceeds. At that point the only way the State could take custody of the children while the case is pending is if there is some new evidence discovered that indicates that any of the children would be in immediate danger of harm unless they are removed. I believe one concern is that if the children are returned to the parents, there is a real risk that the parents may flee the jurisdiction with their children.
S.D.: Being you were the attorney ad litem for one of the young ladies that was deemed to be an adult, originally there were a number of people where the ages was "disputed", why were the ages disputed and what was required to prove their actual ages?
Natalie Malonis: I think the reason the ages were disputed in the first instance is because CPS felt like it could not rely on information provided by the parents and children. So, even if there existed some kind of evidence of age, CPS would not take the evidence at face value. Ultimately CPS stated that they would rely on birth certificates and drivers licenses to establish age if those documents could be otherwise verified. I have seen reports that CPS verified the documents by making calls to vital statistic offices to verify information.
S.D.: Why was it so difficult for CPS and the children and/or parents to establish the ages of those girls?
Natalie Malonis: I think the only reason was lack of trust flowing in both directions.
S.D.: Although the number is contradictory wherever it is reported, there are an unspecified number of children that are not matched with parents at the ranch, if the children were returned to the ranch, what would happen to those kids?
Natalie Malonis: If they have determined the children do not have parents at the ranch, I do not believe those children could be returned to the ranch. When children are in custody, they can only be returned to a person who is legally entitled to possession of the child. That would be a parent or legal guardian. Before those children are released, a parent or guardian would have to prove they are in fact entitled to possession.
S.D.: In the CPS update to the Senate there was an item listed under "cause for concern" that I wanted to ask you about.
The first cause for concern listed says: "There are 27 girls who have indicated that they are 14 to 17 years old. There are an additional 26 girls who have provided conflicting information about their ages, at some points indicating they are minors and at other times saying they are adults. Of these 53 girls, more than 30 have children, are pregnant, or both. Six of these girls have two children, and two have three children."
If 26 of those were under the disputed status and a number of them have been resolved as being adults, what happens to those that are admittedly under 18 and either pregnant or already have children, under the appellate's ruling, if it is not vacated by the Supreme Court?
Natalie Malonis: The appellate ruling only applies to the children of the mothers who were part of the petition to the Court of Appeals. It has been stated in the briefs that none of the pregnant minors are children of those particular mothers. That appellate decision would not, therefore, apply to those pregnant minors, and they would not be returned as a result of that ruling.
S.D.: Last question: In your professional opinion having experience in high-conflict custody litigation, do you have any insight as to what you think the Supreme Court will do?
Natalie Malonis: From a purely legal perspective, taking politics, emotion, and public perception out of the mix, I think the Supreme Court is on solid ground for setting aside the appellate decision. Whether that happens, however, is anyone's guess at this point.
(Note: Since conducting this interview with Ms. Malonis, the Supreme Court has requested the trial record from the appeals court, indicating it plans to work on the case over the weekend.)
All previous related articles on the FLDS children, from Wake up America, found here.