"Existence of the FLDS belief system as described by the [DFPS] witnesses, by itself, does not put children of FLDS parents in physical danger," the ruling read. "It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger."
The state's Supreme Court is expected to rule this week on DFPS's petition for emergency relief from the appeals court decision, possibly as early as Tuesday. If the appeals court decision stands, most of the children will be returned to their parents at the sect's ranch.
"If I had been advising the [DFPS officials] in their suit, I would have said, 'Don't even think of asking about their beliefs,' " says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "Ask about their conduct and intent to act. They don't have to abuse a child to be guilty of a felony if they have the intent. There should have been more focus on conduct."
The appeals court decision, in fact, was a stiff rebuke to the DFPS and the district judge who allowed the state to take custody of the FLDS children. Not only did it say the "pervasive belief system" of the FLDS sect did not endanger all the children, it also found that the removal of the children and their subsequent placement in foster care were not warranted.
Even if the high court were to side with the appeals court, that would not end the state's investigation into child-abuse allegations based on specific evidence, such as the finding that at least five underage young women are "spiritually married" to older men and have either given birth or are pregnant. Nor will it hinder the state's criminal investigation, which is expected to result in felony charges against some of the men, and possibly women, in the sect.