In re Steed, No. 03-08-00235-CV (Tex. App.—Austin) (orig. proceeding)

Mandamus Issued: May 22, 2008

It was a per curiam opinion of the Third Court in Austin. The opinion came out today at 11:30AM.

In a nutshell, the Court held that the State had failed to carry its burden that all of the children were in physical danger, placing stress on the word “physical.” The Court concluded that the State had tried to substitute evidence about the FLDS system of beliefs, but that the existence of those beliefs did not discharge the State’s heavy burden here:

The existence of the FLDS belief system as described by the Department’s witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger.

The Court issued mandamus relief to vacate the district court’s award of custody to the Department of Family and Protective Services.

Because the Court decided this question on statutory grounds of insufficiency of evidence, it did not need to reach the more sweeping constitutional questions that seem fairly implicated here.

The next step is up to the Department.