home : Legislative Session 2009: SB 1064 Testimony

Human Services Committee

Written Testimony of Judy Powell

Communications Director

Contact: 832.592.1323

judy@parentguidancecenter.org

May 14, 2009

Re: SB 1064

Chairperson and Committee Members:

Parent Guidance Center is a 501(c)(3) nonprofit organization that helps families involved in the child welfare system.

Although we realize this bill is well-meaning in trying to protect potentially abused and neglected children and aid in investigations, we don’t think Mr. Watson would like to go down in history as the Senator who circumvented the U.S. Constitution in order to “protect” the children of Texas.

First, this bill seems to want to get around the constitution by taking out “for good cause shown” language which protects children and parents from undue access by the government to their persons as well as their private information.  If investigators no longer need to show “good cause” for the state’s actions, should we expect house to house searches just in case there is abuse, neglect, or any other criminal activity going on in people’s homes?  I hope not!  If passed, this law will open the door to “no good cause” searches of people’s homes under the guise of “protecting” children and might set a dangerous precedent of expanding into other areas of law.  Much is done in the name of “protecting” children, however, the rights of the citizens of Texas that are protected from unreasonable search and seizure by the U.S. Constitution should be upheld, not circumvented, by a state law.

U.S. Constitution: Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Current state laws for CPS investigations are very specific and allow for questioning of children even without an affidavit or search warrant as long as you have good cause which can be interpreted as probable cause and has been successful to date in allowing proper investigations.  Why can’t we just uphold the current law?  Why are we trying to get around “good cause” language?  We need to take a long, hard look at what this bill is really trying to accomplish by getting around the 4^th amendment?

Second, this bill has very disturbing aspects that should caution anyone with children or grandchildren.  The phrase under (c-2), (3) uses the phrase: there is a fair probability that allegations of abuse and neglect will be sustained if the order is issued and executed.  So under this law an investigator can “search and seize” away as long as they believe there’s a “fair” probability that in the end the allegations will be upheld.  We have to remember that allegations are investigated off of anonymous complaints that often turn out to be hoaxes, lies, exaggerations, or misunderstandings.  I would hope that an investigator would have all their facts straight and enough facts to get a court order if necessary BEFORE they are allowed to snoop around someone’s home, ask questions and traumatize their children, and gain access to their personal records.

Third, adding “associate judge” language to the code is disturbing.  Right now, you have to go before a judge who has knowledge laws regarding abuse and neglect to get a search warrant.  This law seems to allow for “shopping” your affidavit for a judge that will sign it with no back up.  We can’t deny that “shopping” judges for warrants happens, but affidavits might be even easier to get signed and with no hearing!

The bottom line is that the current law that requires a search warrant and showing good cause PROTECTS the citizens of Texas from illegal searches and seizures.  We feel that this constitutional language also applies in allegations of abuse and neglect and protects families from undue violations by state agencies.  Please uphold the U.S.

Constitution and protect the citizens of Texas.  If there is enough evidence for looking into records and searching someone’s house after allegation of abuse and neglect, then by all means, get the search warrant and use it to the fullest extent of the law!  But to allow an investigator or representative of the department to go looking for something on a “just in case” basis with a simple sworn affidavit only signed by an associate judge because the department “believes” there is a “fair probability” they might find something does NOT protect families in this great state.

MAJOR FLAWS IN THIS BILL:

·         CPS Affidavits are ALREADY full of hearsay, false allegations, downright lies, and misunderstandings and now they will have the power to supercede Constitutional Rights

·         Using an affidavit with NO chance of hearing the other side first not only denies due process, but also violates THE CONSTITUTION

·         DUE PROCESS is supposed to be GUARANTEED by the 5^th AND 14^th amendments to THE CONSTITUTION

·         THE CONSTITUTION does NOT make an exception to itself for supposed “child protection” or investigations of supposed “abuse and neglect”

·         Allowing ANY authorized representative of the Department to present one of these affidavits is incredibly IRRESPONSIBLE as they may not even be trained for investigations

·         Forcing someone who has “records relating to a child” to “consent” to something they are not allowed to “consent” to opens these persons up to lawsuits and licensure forfeitures

·         With this bill, the Department can essentially just state that someone is NOT cooperating with an investigation WITHOUT having to prove that is the case.  This is another denial of DUE PROCESS that is protected by our CONSTITUTION

·         When you come to understand that in the State of Texas ANYONE can make a totally ANONYMOUS, and if they want to…..FALSE allegation of abuse and neglect ANYTIME against ANYONE, you as legislators will hopefully understand just how DANGEROUS the precedent in this bill will be.  Allowing a sworn affidavit (on the hopes that the findings are going to be true) WITHOUT THE USUAL NEED FOR PROBABLE CAUSE to be the sole way to gain entry to a home or to transport a child away for questioning, and to force the illegal search of records and documents protected under confidentiality laws, YOU will understand that YOU are about to approve of the wholesale violation of your OWN rights, your children’s rights, your grandparents rights, your grandchildren’s rights, a teacher’s rights, a professional’s rights, a foster parent’s rights, your neighbor’s rights, and essentially EVERYONE’S rights because again ANYONE at ANYTIME can make a false, anonymous allegation against ANYONE ELSE.  Our current laws protect children, parents, families, AND everyone else being investigated for good reason or not.

Of all the anti-family rights, anti-parent rights, anti-child rights, and anti-Constitution rights bills of this session, and there have been quite a few, Parent Guidance Center believes this bill ERASES every CITIZEN’S rights, wholesale, without discrimination in a CPS investigation including YOUR OWN. 

WE IMPLORE YOU TO LOOK AT WHAT THIS BILL REALLY ACCOMPLISHES AND TO MAKE SURE IT DOES NOT SUCCEED!