05/22/2008 06:49 pm ET Updated May 25, 2011

Despite Ruling Children Remain Captive

The rule of law prevails -- at least for 12 of the 463 children forcibly taken from their parents at the polygamous FLDS community in El Dorado, Texas. Now a higher court finds that the "round-them-all-up and let's-sort-it-all-out-later" approach is illegal and wrong.

It takes present evidence, not future speculation, of dangers to physical health and safety to justify the extreme approach of immediate removal of children from parents, according to the Texas 3rd District Court of Appeals in Austin.

"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," the three-judge panel said, as reported by CNN on 5/22/08.

But the appellate court did not order the children's immediate release. Rather, it gave the trial court ten days to vacate its decision that originally supported the unprecedented seizure of children. The order applies to the children of the 38 mothers who filed the appeal, but attorneys hope the ruling will affect the cases of other children held in custody.

When issues of forced underage marriage sparked the massive raid, the community was treated as "one household." Child Protective Services insisted the forced separation was necessary in order to give the children a chance to freely talk and stripped parents of their children, no matter what their ages.

The appellate court found this reasoning unacceptable.

"The state's Department of Family and Protective Services 'did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty," the judges ruled," as reported by CNN.

Despite the ruling, the return home of the majority of children remains uncertain. Once the Beast of Bureaucracy is awakened, the unfortunate can be held in its dark maw for a long time.

Emotional scarring surely will follow a continued separation of children from their mothers. How long would it take before you or your own children cracked under the horrific stress of being forced apart at gunpoint, shipped off to strange homes and not allowed to see, talk or touch each other indefinitely?

The hardworking employees of child protective services are not the enemy. They devote themselves to the protection of children, a highly commendable goal. But the authorization of jackboot tactics and the wrenching apart of families is to be denounced.

Until the day of release, how does warehousing these children within an inadequate foster care system serve their best interests? The American Statesman on 5/07/08 reported a shrinking availability of foster care homes in Texas. Why? Because potential caregivers did not want to subject themselves to 24/7 surprise inspections, to 474 agency rules or to agency questioning into every aspect of their personal lives, including their sexuality.

Overkill and the Big Brother aspect led many fine people to say no thanks at a time when fosters homes are in desperate demand. According The American Statesman, available foster homes increased only 26 percent compared to a 45% growth in numbers of children in need.

Now a sudden infusion of over 400 children threatens the already over-taxed foster care system of Texas. In the current hearings, each judge expressed the state's goal to provide family support, a safe environment and reunification of families. But such ideal goals will be thwarted by the glacial slowness of procedure and a dearth of resources.

In the meantime, young psyches burn with the damaging imprint of forced separation. In many instances, siblings have been torn apart from each other. For example, the eleven children of Kathleen Steed are scattered statewide. Sarah Jessop's children, ages 7, 9, 5, 4 and 18 months, are being housed at four different locations. Sarah Keate Steed brought to court a marriage certificate and birth certificates for her six children who range in age from 7 months to 10 years old. They've been shipped to four different shelters.

Mothers pleaded for their children to be placed together, but it appears unlikely.

Given how quickly a baby moves through formative stages in the first two years, can you imagine losing months of your own child's experience?

My own 3-year-old granddaughter starts to cry for her mommy and daddy just after a day of babysitting. Imagine the separation anxiety these children will suffer as weeks and months may stretch before them.

Was a wholesale roundup of the innocent in pursuit of the "possibly" guilty in their best interests? A higher court said no. Ah, sweet freedom, but alas, not yet. The legal wrangling continues and the Bureaucracy Beast will clench young children firmly in its jaws.