A couple of months ago on this Blog, I noted a solemn promise by Texas child protective service – a promise to, in effect break the law. I wrote that in stories about the FLDS raid,
The Salt Lake Tribune and the San Angelo Standard Times both report that Texas CPS says if they faced what CPS spokesman Patrick Crimmins called "the exact fact situation" again, they would do exactly the same thing again – take away all the children. But the Texas Supreme Court ruled that taking away all the children under these exact circumstances is illegal. As in, against the law. Did CPS forget that small fact – or do they just plan to break the law on purpose next time?
Clearly, the Texas Legislature couldn't stand for something like this – so they sprang into action: They passed a bill that would legalize CPS' illegal behavior in the FLDS case and another case in which their actions were struck down by courts. An excellent family advocacy organization in Texas, the Parent Guidance Center, reports that this language actually failed to pass on its own. It was sneaked onto another bill at the last minute.
Under current law, if CPS wants to rush onto someone else's property, demand entry, seize records question the children, stripsearch the children, and then seize the children and take them away, all without so much as a court hearing, CPS is supposed to convince a judge that it's a dire emergency. The judge needs to be persuaded that the children are being abused right now – or will be abused so soon that there is no time to even hold a hearing for the families to defend themselves.
The reason for this should be obvious. If the only alleged problem is that children face a threat that is not imminent, then there is time to hold a hearing before exposing children to the trauma of being questioned, stirpsearched, and often, torn away from everyone they know and love. In the FLDS case, for example, some of the allegations boiled down to the claim that very young children might be abused when they reached puberty. Now granted, there are a lot of delays in juvenile court – but ten years also usually is enough time to schedule a hearing.
Under the new bill, SB 1440, all CPS would have to do is file an affidavit claiming that
- based on information available, a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect;
- the requested order is necessary to aid in the investigation; and
- there is a fair probability that allegations of abuse or neglect will be sustained if the order is issued and executed.
The law says nothing about when the child's "physical or mental health or welfare … may be adversely affected." It could be tomorrow, next month or years from now.
Johana Scot, executive director of the Parent Guidance Center, points out that "based on information available…" can be nothing more than an anonymous tip. She calls the "fair probability" requirement the "I swear what I'm about to find is true" clause.
As with most states, Texas has a broad, vague definition of neglect that easily is confused with poverty. So under the new law, all CPS needs to barge into any home at any time and take any impoverished child is an affidavit that says, in effect, "we think this family is very poor and it's likely that, once we get into the home, it will turn out that yes, they really are poor."
Or, in an FLDS-type case, they would need only present an affidavit saying "Sure the child's an infant now, but in 12 or 13 years…"
Indeed, this bill specifically rejects the notion that danger has to be imminent before CPS can skip over the niceties of due process. According to the bill:
This section does not prevent a court from requiring notice and a hearing before issuance of an order in aid of an investigation under this section if the court determines that:
(1) there is no immediate risk to the safety of the child; and
(2) notice and a hearing are required to determine whether the requested access to persons, records, or places or transport of the child is necessary to aid in the investigation [emphasis added].
First of all, the key words are "does not prevent." Courts would remain free to let CPS run roughshod over families even when there was no immediate risk to the safety of the child, if the court felt like it.
And the court would be required to let CPS do this, even when there was no immediate risk to the safety of the child if the court simply determined that it is necessary "to aid in the investigation."
Of course, even if the governor signs the bill, at some point, it may be challenged on constitutional grounds. But most children victimized by needless intrusion, stripsearches and foster care don't have parents who can afford such court challenges. And, of course, there's no guarantee such challenges will succeed; not when so many judges are afraid to look "soft on child abuse."