Yesterday, in In re Sara Steed, et al., the Texas Court of Appeals at Austin ruled that, in the case of the children of the thirty-eight mothers represented in the case, the Texas Department of Family and Protective Services failed to show that there was an “immediate danger to the physical health or safety of the children.”

Prior to removing children from their homes, section 262.201 of the Texas Family Code requires a showing that (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children’s removal from their parents. As the court noted, the extreme measure of allowing removal of children before litigating these issues is only allowed when “the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary.”

In this case, while there was a showing that at least twenty females had become pregnant between the ages of thirteen and seventeen, the Department conceded that teenage pregnancy, by itself, was not a reason to remove children from their homes.

While the Department asserted there was reason to believe children were sexually abused at the ranch, the Department primarily relied on the “pervasive belief system” of the Fundamentalist Church of Jesus Christ of Latter Day Saints (”FLDS”) that it was acceptable to marry and procreate with females as soon as they reached puberty, and that such a “pervasive belief system pose[d] a danger to children.” However section 262.201(b)(1) requires the existence of a danger to the physical health or safety of the child before removal. The Department was unable to provide evidence, other than the pervasive belief system, that there was danger to pre-pubescent children. There was no evidence of sexual abuse outside of the females identified as having become pregnant before the age of seventeen. There was also no evidence of physical abuse.

The court held that there mere existence of the FLDS belief system did not put the children at the ranch in physical danger. The risk that “children raised in this particular environment m[ight] someday have their physical health and safety threatened” was not enough the meet the legislative threshold that the danger be so immediate and urgent that it warrants removal prior to full litigation.

The Department of Family and Protective Services has not made any statements on whether or not it will appeal this decision.

Update: 5/23/08: The ABA Journal reports that the decision will be appealed to the Texas Supreme Court.