I. Children Victimized by Wrongful Removals
The goal of the CPS system is to protect children from abusive situations and provide them with a safe home. However, in practice, the opposite of this often occurs. Children are routinely removed from their homes without justification (i.e., actual evidence indicating that there has been abuse or neglect).
In some cases, the reason for removal is something trivial such as children playing in normal conditions or because of an anonymous accusation with no factual support against the family. Removal from one’s home is a life-changing event from which many children never fully recover.
So, from the perspective of a child, a CPS removal is no different from a kidnapping. It doesn’t matter how nice your kidnappers are. They’re still strangers. They still took you from your parents against your will. They still won’t let you see, call, or communicate with your parents and very often your other siblings. And, they still won’t let you go home. It doesn’t matter that this may be deemed what’s “best” or “safest” FOR the child because TO the child it feels like everything they were ever taught about Stranger Danger and kidnapping has just happened to them.
~ Johana Scott, Executive Director, Parent Guidance Center
II. Healthy Families Destroyed
Currently, numerous flaws in the CPS system give CPS the power to run rampant over the rights of Texas parents and families, ultimately hurting children. Families under investigation by CPS find that the system is heavily stacked against them and facilitates an environment where parents are considered guilty until proven innocent.
A variety of factors contribute to this reversal in parental rights:
- A number of loopholes and unclear mandates in Texas law
- Lack of accountability for both CPS officials and courts
- Sections of Texas law failing to give parents sufficient options to defend themselves when they are threatened with the loss of their children.
The end result of these problems is that, in many cases, instead of children being protected, healthy families are destroyed by the broken CPS system.
CPS is tasked by law with protecting the children of Texas from abuse and neglect. Because of the many loopholes and issues with current law, however, not only does CPS often harm children by removing them from safe homes, but it tramples on the most basic rights of parents, destroying healthy families in the process.
~ Tim Lambert, President, Texas Home School Coalition
Goals of the Bill:
- Protect children from unnecessary and harmful investigations and removals by clarifying the standards that must be met before a child can be removed from his or her home.
- Close loopholes in current law that allow CPS to ignore deadlines and other necessary mandates without any repercussions.
- Provide additional protections to families and parents by reforming the legal procedure allowing families an effective defense while remaining innocent until proven guilty.
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Parent-Child Protection Act Bill Analysis
How do these reforms protect parental rights?
The Parent-Child Protection Act protects parental rights by closing loopholes that led to abuse in the CPS system.
Reform – Provides Adequate Time for Defense
- This allows the court to postpone a show cause hearing for up to one week when requested by the parent or the parent’s attorney to ensure that parents are allowed adequate time to prepare for the hearing or hire an attorney for defense.
Within 14 days of a child being removed from the home, CPS must prove that the emergency removal was necessary to protect the physical health or safety of the child.
The problem is parents are often not notified of the specific allegations until shortly beforehand. Parents are not given adequate time to (a) prepare for the hearing or (b) hire an attorney and for the attorney to prepare for the hearing.
The current statute allows up to seven days postponement when the court appoints an attorney to represent the parent to allow the attorney to prepare for the hearing. However, the law does not allow this protection when the parent chooses to either represent themselves or hire their own attorney.
The Parent-Child Protection Act solves this discrepancy by allowing the court to grant the same extension to all parents regardless of their representation.
Reform – Protecting the “Fit Parent”
- This disallows the termination of parental rights of both parents when there is only evidence of abuse against one parent, protecting fit parents from unjustly having parental rights terminated on unsubstantiated grounds.
CPS refers to a parent involved in a suit who has not committed abuse or neglect as the “non-offending” parent. However, it is not uncommon for CPS to file a termination suit against both parents even when there is evidence of abuse or neglect only against only one parent.
Thus, even though the “non-offending parent” may be a fit parent, they are still often subject to a termination suit for their parental rights.
A fit parent separated from their child—either through temporary removal of the child or final termination of the parent-child relationship—is devastating to both the child and the family. For this reason, it is paramount that parents be protected from CPS filing for termination unless there is evidence of abuse or neglect against both parents.
The bill prevents CPS from filing for termination against a non-offending parent. It also prevents the court from terminating parental rights unless there is evidence of abuse and neglect against that particular parent.
Reform – Eliminates Burdensome Costs to the Family
- This prohibits courts from requiring parents pay child support costs during the pendency of a suit before the legal process unfolds to actually determine it they are unfit.
This was an important loophole to address to protect parents financially. CPS can remove a child and require the parents pay the costs of having their child removed—in addition to the costs of trying to get their child back in court—before proving that the parents did anything against the law.
The bill remedies this by preventing courts from forcing the parents to pay child support costs during the pendency of a suit.
When the court requires parents to pay additional fees such as child support costs, it pushes many families below the poverty level. This prevents them from affording an attorney.
Because their eligibility for a court appointed attorney is determined before factoring in child support costs, a parent who finds themselves in this situation is not entitled to a court appointed attorney. They can also no longer afford to hire their own attorney.
Parents stuck in this predicament should find relief from this loophole being closed.
Reform – Requiring the Jury to Agree on the Charge
- The bill disallows courts from using “broad-form jury charges” to terminate parental rights, ensuring that the jury must agree on a specific singular charge before parental rights may be terminated.
In the context of a parental rights termination case, a broad-form jury charge is when the court asks the jury a broad question: “Should parental rights be terminated?”
The problem with broad-form jury charges is no specific charges are presented. If the court only asks whether or not parental rights should be terminated, each of the 12 jurors can come up with a different reason for terminating parental rights. And, even if they disagree with each other on the merits of their reasons, they can all vote to terminate parental rights because they collectively each came up with their own reasons.
Broad-form jury charges effectively deny due process to parents by not even requiring that a parent be convicted of a specific allegation. Even if the prosecution fails to meet the burden of proof on allegations against the parent, parental rights can still be terminated.
This is a direct threat to both parental rights and the best interests of the child. The bill ensures that parents are protected by due process in termination of parental rights cases.
Reform – Relieves Unnecessary Burden on the Family
- Requiring all cases concerning the same children and same CPS incident be heard by the same judge or court relieves unnecessary burdens placed on families in CPS court cases.
According to Texas law, if a child has previously been through the court system, then the original court is given continuing jurisdiction over that child. This requires the child to return to that court for future cases.
However, a family with multiple children might be in a situation where different courts have jurisdiction over their children. Thus, when CPS files suit against the family, the parents might be faced with multiple suits in multiple courts for each child despite being the exact same CPS case.
For example, parents might be forced to defend themselves 2-3 different times in 2-3 different courts in front of 2-3 different judges. Not only does this force families to divide resources among cases and incur additional legal costs, it also threatens due process by forcing families to defend multiple times for the same charge.
The Parent-Child Protection Act protects families from this unnecessary burden by requiring the Department of Family and Protective Services file all petitions related to the same children and CPS incident in the same court.
Reform – Requiring Efficiency and Timeliness in CPS Investigations
- The bill enforces a one-year deadline on CPS cases by automatically dismissing the suit without a court order if the case is not completed by the deadline, protecting parents by closing the loophole that allowed CPS cases to carry on for years.
If a CPS case does not conclude within one year, the Family Code requires the court to dismiss cases in which the Department of Family and Protective Services has been named temporary managing conservator of a child.
The only exception to this requirement is in extraordinary circumstances necessitating that the child remain in the temporary managing conservatorship of the department. The court may then retain jurisdiction of the case for an additional period not to exceed 180 days.
Unfortunately, despite the legal requirement, many courts do not follow the deadline. Children have historically been prevented from returning home for several years, even if it is safe for them to return home or if another family is available to adopt them.
An upsetting example is the Tutts case, where the court and CPS ignored deadlines for years. Cases like this have occurred in Texas for too long. This bill will automatically dismiss a case like the Tutts’ if the deadline is not met, ensuring that children are not left in foster care indefinitely. CPS is also required to either return the child home to their parents or provide proof to terminate parental rights, leading to adoption in a timely manner.
Reform – Including Parents in all Hearings Regarding their Children
- Prohibiting ex-parte hearings unless specifically authorized in the Family Code protects parental rights by preventing parents from being excluded from hearings involving their children.
In the 2000 Supreme Court case Troxel v. Granville, the Supreme Court recognized: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
Unfortunately, lower courts regularly circumvent this protected right by holding hearings regarding a child without the presence of the child’s parent.
This is expressly disallowed under the Texas Code of Judicial Conduct. The code reads: “A judge shall not initiate, permit, or consider ex parte communications or other communications. This subsection does not prohibit…considering an ex parte communication expressly authorized by law.”
Essentially, the bill states that the court may not hold an ex-parte hearing unless the code specifically authorizes them to do so.
The provisions contained in the Parent-Child Protect Act prohibit ex-parte hearings except when specifically authorized in the Family Code. This protects parents by not infringing on their parental rights and ensuring a parent’s ability to be present at hearings regarding their child.