Responding to the 5th Circuit Court of Appeals recent decision in the Gates case, Texas CPS today issued an “urgent legal advisory” to all CPS personnel warning them of dire consequences for failure to conform to so-called “new standards” in removing children from their homes.
Ordinary Americans have traditionally thought of these “new” standards as something closer to “due process,” a standard that has been with us since Magna Carta, in 1215, but CPS has heretofore been too self-important to bother with it. The world watches in stunned silence as CPS personnel contemplate the very idea of personal consequences for their own misbehavior. What a concept!
I haven’t had time to analyze the advisory in detail, but this introductory wording is both interesting and potentially significant:
The Gates case is significant for two key reasons. First, it sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.
What we’re talking about here, I believe, are simple 4th and 5th Amendment concepts. But for CPS, it’s a sea change. I look forward to reader comments on the advisory.
ht: an AAL
{ 103 comments… read them below or add one }
It has been the prevailing idea that since everybody is concerned for the children. We dont have to worry about due process of law. However, Give people too much power and they will abuse it. Plus, most people think loosening constriants on law helps. In fact actually makes them less efficient. Restraining the CPS will discipline their investigations.
One that reviews case law felt the Gates opinion was fairly SOP!
I felt the court appeared to have actually told us of how they reinterpreted to expand that “special need”.
CPS ought to ask Mike Nifong how claiming “qualified immunity” worked out for him. Hint: Not too well.
He’s been held accountable for his willful violation of due process and civil rights of the 3 Duke students he attempted to railroad.
With CPS, and innocent children’s lives at stake, its gratifiying to see the same accountability may soon be applied to the almighty CPS caseworker(s).
If these caseworkers can no longer hide behind “qualified immunity”, they will finally fear being held *personally responsible* for any overzealous and inappropriate interference in the homes and families of innocent Americans, which means it will happen a LOT LESS OFTEN. And that is a very good thing.
This is the way it SHOULD be .. no emergency removals unless it’s necessary to prevent a child from being abused in the time it would take to get an order. Very good.
I must applaud the Gates for their persistence and hundreds of thousands they spent pursuing their case to clear their name and clarify the law here regarding unconstitutional search and seizures.
As for the ruling, I don’t like the low threshold they placed on imminent danger based on alleged testimony of the children that indicated harsh disciplinary methods. IMO, the standard should be imminent danger to life or limb — not bruising or vague/isolated claim of fear, for child removal. It’s also interesting that the court ruled the child removal was constitutional on the basis of the children’s testimony describing physical abuse for the warrantless removal, but the very next day the court returned the children. Was the veracity of the children’s testimony called into question? Was the reasonableness of the removal apparent to the case workers but not to the judge? Obviously also the interviews with the children were not recorded or filmed. I think that should be required, as it would have settled the matter on many levels, not only on substantiating the reliability of the children’s testimony but also for documenting any “intentional infliction of emotional distress, excessive force, privacy violations, etc.” for claims for damages.
I’ll be the first to admit that CPS is often guilty of remove first and really sort out the facts second. Hopefully, this will help put a stop to those practices.
However, there’s always another side to the equation. There is a possibility that some worker concerned about sufficient exigent circumstances could end up endangering a child.
Excessive use of removals to this point has resulted in negative statistics that weigh heavily against removing children from their families. The risk of endangerment has been greater in removing children than in leaving them at home.
This is great news. Especially about caseworkers now being liable for their actions. Long overdue.
Yes, film children making allegations. Children with attachment disorders are notorious for making false accusations. But such documentation would also restrain the CPS from inflating the allegations.
What does this mean for Merrianne Jessop?
I think that LE needs to be included with any decision to remove. The “just doing my job” needs to be held accountable for their involvment in any removal.
One persons judgement, that of the CPS worker, should not be solely responsible for either leaving children or taking them out of the home. In fact, I think CPS needs to be a department of DPS, not the IRS.
A signed police report should be part of the documents the Judge must review within 24 hours.
Kurt,
I applaud you for bringing this up, and I agree with the 5th Circuits decision in the case. If possible, CPS should always try and get an order authorizing the removal of the children, and the decision clearly establishes this.
I would make one minor point on the actual case – all of the claims against the individual officers and social workers, as well as the claims against the agencies, failed, with the 5th Circuit stating that all were entitled to summary judgment based on either qualified or official immunity and the Gateses were not entitled to an injunction prohibiting the removal of the children in the future.
The court also repeatedly made statement like the following:
“we conclude that the TDPRS employees did not violate the Fourth Amendment rights of the Gates children by seizing them without a court order.” Gates v. TDPRS, No. 06-20763, ___ F.3d ___, 2008 U.S. App. LEXIS 15947 (5th Cir. Tex. 2008)
and
“Consequently, the Fort Bend deputies did not violate the Gates children’s Fourth Amendment rights in assisting TDPRS in removing the children from their home.” id.
and
“Therefore, the Gateses have failed to present evidence of a policy or custom that caused their alleged constitutional deprivation with respect to the entry into their home.” id.
In other words, while the court spoke of the need to get court orders, they found that CPS and the officers were not liable for any alleged misconduct.
Case workers, like all government employees were always liable for their actions – but if the law wasn’t clearly established, like in this case, they have immunity.
CPS is just being prudently cautious.
Jeny,
Neither absolute or qualified immunity have come into play on the Mike Nifong matter, not yet anyway.
That relates to the civil complaint Nifong is using bankruptcy in an effort to keep himself out of the case.
If he is added back into the civil case, which I anticipate, he can then look to use that immunity defense.
Just FYI
TBM, they weren’t liable then (in 2000) because the “special needs” doctrine had not been well established and clarified. Now it has been. If it had not been for the lack of clarity in the “special needs” doctrine in 2000, all those directly involved would have been found liable for violation of fourth amendment rights for the entering the home without a warrant and interviewing children without court order, given the lack of exigent circumstances.
Ron, my guess is that non-removal of a child from a situation that a CPS worker is not sure meets the criteria doesn’t meet the ‘emergency’ requirement. If the CPS worker can’t figure out how imminent the danger is, there must not be imminent danger.
I hope someone explains to CPS workers that imminent danger is NOT danger that MAY happen in 10-20 years and that imminent danger does not include teaching a child the family values that have been guaranteed by our consitution.
They seem to have a problem understanding that – or maybe it is just Texas CPS that’s thick.
Joey,
In the very specific, very limited case that you describe, that is correct. They have always, like police officers, been liable when they violate clearly established law, and nothing in that regards has changed.
Until the courts interpret the law and explain it, how are you going to hold them liable for it?
Well, if I were one of the justices in this case I would have allowed the lawsuit to go through just to send a message out. The fact that the justices in this ruling did some jujitsu by exonerating the defendents on the basis of some esoteric “special needs” doctrine, shows reaching on their part, possibly politically motivated. I wonder, was there any evidence that the defendents knew it was on the basis of a “special need” that they had the right to enter the home without a warrant? Or were they just given the benefit of the doubt. I’m starting to see this ruling as pretty dubious. Maybe it should be appealed on the basis that the defendents didn’t bother to mention this “special needs” defense until their attorneys advised it. I think they went in to the house presuming exigent circumstances and not “special needs” which would make them liable. Maybe an even higher court can make a better ruling based on the presumptive thinking of the defendents at the time of the raid, and not on their retroactively vindicating themselves upon finding some obscure loophole after the fact.
Joey,
The way I took it was that because the court had not yet done it’s part with that “jujitsu”, it was OK.
It read more like it was OK because of what all involved did not know than having considered or being based upon any limits created by what they clearly knew of.
kdp: I direct you to THE Definitive blog on the Duke debacle
http://durhamwonderland.blogspot.com/
http://durhamwonderland.blogspot.com/search?q=qualified+immunity+%2B+nifong
I searched for the posts on qualified immunity and Nifong. Might be of interest to you.
Oh, and excellent reading here. I highly recommend the book.
http://untilproveninnocent.com/
Chai tea
The problem is that CPS workers are human and can err on either side of the equation.
Every time a baby ends up dead, people always say “Where was CPS?’
That fear made the pendulum swing the other way toward “round em up and sort it out later.”
Maybe this case will help restore equilibrium; however, you have to remember that any time the pendulum swings, it can swing too far.
I have a unique idea. Why not when a baby turns up dead, we make the killer dead? But no, we have only to look to Texas who refuses to put Andrea Yates to death, and instead is spending tens of millions of dollars to pursue ghosts in West Texas. Just kill the killers. The idea of crime prevention is bankrupt. Enforce the law and let that do the work it is supposed to do. Kill killers. That’ll work.
Every time a baby ends up dead, people always say “Where was CPS?’
And therein lies a big problem. CPS can’t and will never be able to “protect children” from abuse. The most they can do is set out policies and procedures to “minimize” abuse.
Putting the unrealistic burden on an agency to ensure no child is ever abused is absurd, and because the finger is pointed at CPS when abuse/death happens we end up with ridiculous laws stemming from over-reaction.
Not to say, they haven’t left kids in truely squalid, dispicable situations that resulted in the kids death.
They just aren’t capable of society’s expectation or their claims.
Based on the following, did CPS even have jurisdiction to act on the bogus phone call from a woman alleging to be 16 and married with child? Based on law, under those conditions she would no longer be considered a minor.
From the CPS Employee Handbook:
Law
Child or Minor — A person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes.
Texas Family Code §101.003
~~~
Sexual conduct — Sexual conduct includes, but is not limited to, any of the following:
Law
•Sexual contact — Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.
Texas Penal Code §43.01(3)
Given that it’s been reported that they don’t have sex for pleasure, can any of them be charged with having “sexual contact”?
Workers also may inform any reporter [of alleged abuse] that TFC, §261.107, sets a Class B misdemeanor penalty for knowingly or intentionally making a report without a factual foundation.
Texas Family Code §261.107
Provided there really was a call, Was Rosita given this warning? Did CPS make the follow up call to her as required, to gather detailed information in order to assess the validity of the complaint and need for an investigation?
Responsibilities of DFPS Staff
DFPS staff must encourage reporters to report all suspected incidents (or risk of incidents) of abuse or neglect to the DFPS abuse hotline (see Item 2122). If the reporter refuses to call the abuse hotline, staff must report the information to Statewide Intake (SWI).
As state-employed professionals, DFPS staff who discover abuse or neglect must call the hotline within 48 hours to report the suspected abuse or neglect.
Appears they should have referred this call to local law enforcement.
2145 Closing Reports Without Assignment for Investigation
The supervisor may close reports of abuse or neglect without assigning them for investigation for the following reasons:
The report is not within the responsibility of CPS and will be handled by another state agency in Texas, another state’s protective services program; or a law enforcement agency for investigation.
And if they found some loop-hole around the jurisdiction issue, why wasn’t this Priority I report acted on immediately?
Rule/Program Standard
[DFPS] must notify appropriate law enforcement agencies of reports of child abuse or neglect within the following time frames:
•DFPS] must give notice within 24 hours of receiving a priority I report, a sexual abuse report, or a report alleging abuse or neglect in a public or private school. The initial notification may be given orally or by facsimile. This deadline applies even if subsequent information shows that the report is unfounded or does not qualify for priority I treatment. [includes "sexual abuse"][DFPS] must follow up an initial oral notification with written notification within three days after receiving the report.
If the report indicates that the child may be at risk of immediate harm, the investigation will begin within 24 hours; otherwise, the investigation must be started within 10 days after the report was received.
Hugh McBride, Andrea Yates was mentally ill.
How can people who are so unqualified receive ‘qualified’ immunity?
Chai Tea : I hope someone explains to CPS workers that imminent danger is NOT danger that MAY happen in 10-20 years and that imminent danger does not include teaching a child the family values that have been guaranteed by our consitution.
The advisory explains that very clearly.
Andrea Yates was legally insane .. “mentally ill” is not a justification for homicide.
From the CPS Employee Handbook:
Law
Child or Minor — A person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes.
Texas Family Code §101.003
Kurt, if this is accurate, then how can they charge ‘bigamy’ and ‘sexual contact with a minor’ at the same time? If they are charging ‘bigamy’ then it seems that they are giving validity to a ‘marriage’ and not be able to have it both ways. Please advise.
(and blues, spare us the rhetorical tripe. Just talk the law without spending a bunch of time regurgitating about how bad we are when you don’t even know us!!
SKK its a defense for homicide.
They can charge both because they are two separate offenses, with separate elements, none of which excludes the elements for the other offense.
Cheese –
Here’s the bigamy statute:
Section 25.01 says in part:
“An individual commits an offense if…he is legally married and he…(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, (B) under circumstances that would, but for the actor’s prior marriage, constitute a marriage…or…(C) lives with a person other than his spouse in this state under the appearance of being married….(D) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.”
Assuming the statute is valid, a man could be legally married to one wife and then “purport to marry” or “hold himself out as married” to a minor (and therefore, be charged with bigamy) while at the same time being charged with “sexual contact with a minor”.
So what if he isn’t ‘legally’ married and he ‘purports’ to marry?
From the CPS Employee Handbook:
Law
Child or Minor — A person under 18 years of age WHO IS NOT OR HAS NOT BEEN MARRIED or who has not had his disabilities of minority removed for general purposes.
Texas Family Code §101.003
Blues, you got to help me here. I’m no legal scholar for sure, but if they’re claiming ‘bigamy’ and ‘sexual conduct with a minor’ then it seems to me that in order to charge both at least by the definition above then they would have to prove that the ‘conduct’ preceded the ‘marriage’ . ??? Help me understand because I know us better than you do and I KNOW that you are mistaken about us. I also know what I see all around me in the world and it don’t look to good.
A bigamous marriage is void, although it may be prosecuted as a crime. An underage marriage (not bigamous) is also void if there is not a license, a sworn affidavit of parental consent, or a court order. The person performing the underage marriage may be prosecuted for that offense.
A void marriage is not a marriage for the purposes of FC Sec. 101.003, nor does it provide a defense for sexual assault. It doesn’t matter which happens first – the void marriage or the assault – they may both be prosecuted.
I think that you are also misunderstanding the term ‘legally married’ as it applies to Texas law. This does not mean by license only. Common-law also applies, so if someone went through a ceremony (in whatever state) and moves to Texas where they represent themselves as married, they are. That forms the first, legal marriage. Anything subsequent to that legal marriage that purports to be a marriage or has the appearance of being marriage has committed Bigamy.
Texas law doesn’t have the loopholes that the FLDS is used to – and they will probably go to prison for their error in this regard.
When a child is killed by its parents, or more often, its mother’s boyfriend, it is true that people ask ‘where was CPS?
It is also true that most of the time, they will find that CPS had already been there- often several times, frequently writing glowing reports about how cooperative those parents were and how they working through their issues. In fact, I have NEVER heard of a case where a child died of abuse that CPS didn’t already have that family in their casebooks.
This is because the majority of CPS workers have not got a clue about what a healthy family looks like. A grieving, distraught, upset mother is ‘uncooperative,” ‘emotional,’ ‘unstable.’
A detached sociopath who has the emotional coolness to jolly up the caseworker a bit, fawn on her some, and never sheds a tear is stable and on the fast track to getting her children back.
Denying that you have abused your children is NEVER because you haven’t abused them, it’s because you’re at risk for continuing the abuse since you refuse to admit there is any. It’s a nasty, vicious circle- CPS says ‘you are an abuser,’ and you say, “No, I am not” and CPS says, “That’s exactly what you would say if you were an abuser, and since you will not admit it, your kids are at risk and we must put them in foster care.” An assertion of your innocence is proof of your guilt.
CPS can never be better than the people in it. Most of them come from abusive homes and they are on a mission to save kids like them. Only they see kids like them under every rock, and they don’t know what normal looks like.
Pretty crafty TBM. Agreed no loopholes. But totally unconstitutional in that it penalizes speech (purporting to be married) and thought (believing one is married) and free association (cohabiting) — each of which in turn is supposed to be a guaranteed right. IMO, Texas cannot take three guaranteed rights, and say that if exercised in a certain combination it’s illegal.
Cheeze for clues as to how to appeal your bigamy situation, I suggest you take a look at my blog on the subject: http://freetoseparate.blogspot.com/2008/08/tom-green-sc-ruling-suggests-direction.html
“mentally ill” is not a defense to homicide
DHM, your explanation sounds very much like people who face alcohol counseling as part of their ‘sentence.’
A person I know was supposed to take a test to see if he were in need of a 6-8 course on alcohol counseling. I found a similar test on line and we both took it – I failed; he didn’t. The only problem is that I don’t drink and never have, and he does drink.
After reading and analyzing the questions, we concluded that they are asked along the same line as “Have you stopped beating your wife/child?” If you answer yes, you’ve confessed to an action that may not be true, but is what the questioner wants to hear; if you answer ‘no’ you are guilty of on-going abuse.
This appears to be what is happening in the Barbara’s case. Because she refused to play the game the court and CPS wanted, they punished her by hurting her child.
As for those who think Barbara is not ‘emotional’ enough and that is yet another crime she is committing…My son was severely injured and has so far needed 7 surgeries. Two surgeries lasted 12 and 9 hours – During that time and the days immediately following, no one observing me in public would think that I was emotionally devastated by either the initial injury or the follow-up surgeries – I waited until I reached my own home, my own bedroom before crying hysterically for my child’s pain and suffering –
What Barbara and MerriAnne are going through are so much worse – I did not have predators and gawkers following and documenting my every move – I wish I could fly them both away from this horror their life has become.
cheese
First of all you need to understand that the law breaks down into a civil – criminal dichotomy. While there are some similarities between the two, there are also vast differences.
You can’t use a family code (i.e. civil) definition and assume it applies in a penal code (i.e. criminal) situation.
deputyheadmistress
I can’t argue much with what you said. The only statement I take exception to is about child deaths and prior CPS involvement.
There are many cases of child deaths without prior CPS involvement. I am curious if there are any stats out there.
Ron the consitution covers civil code ae well.
Joey,
I’m very surprised that you use the same arguments that the proponents of gay marriage use. It would be appropriate for the FLDS to be supporting gay marriage, since they both want to destroy the traditional institution of marriage and ignore current law.
Of course, it won’t fly at the SCOTUS level. You are equating acts with speech, and SCOTUS won’t.
“…traditional institution of marriage “
By that, you mean the “traditional” practice of a portion of the world over a more recent period in history?
…or a Texas tradition?
The state in which any number of men can purport to be married to each other!
>
Nope, TBM. I’m not equating acts with speech. I’m equating speech with speech. You have not defined marriage by acts, but by speech (purporting), and thought (intending). So, yes, I do think SCOTUS will agree with me. And I really don’t care about gay “marriage.” And I don’t have a clue why they care either. “Marriage” shouldn’t be any of the government’s business. Civil unions maybe. Contracts maybe. But not private intimate relationships, beliefs, speech, and thought.
Joey,
If you want to argue that, go for it – but it won’t work.
If you can’t define common law marriage legally, and you have to drag the bigamists in front of a judge every time, just to determine whether or not they’re *really* common law married, then the judge has effectively become a law unto himself, and that’s not how it’s intended to be.
Define common law marriage so there’s no abiguity or scrap the statute. Most other states have already.
Joey,
Common law marriage, ceremonial marriages, and marriage by license are all legally defined in Texas. The fact that YOU don’t like our definition is too bad, but it doesn’t change the facts.
There is no ambiguity in the Texas definition – it is very clear, just as the definition of bigamy is very clear.
Ignorance of the law on your part does not constitute a problem for Texas – it is the responsibility of all Texas citizens, residents, and visitors to know the law, and, as they say, ignorance is no excuse.
Face it – the FLDS really picked the wrong place to practice their felonious behavior and to abuse children. Texans don’t overlook it like other states apparently do. Gee, could the ‘Prophet’ be wrong?
“the FLDS really picked the wrong place to practice their felonious behavior and to abuse children. Texans don’t overlook it like other states apparently do.”
They’re into it for about $3 million per indictment on those charges so far.
Will they overlook that fact?
I anticipate they’ll regret what little they get out of this mess.
Then why has CPS taken custody of a young woman who they consider to be married, but no longer considered a minor/child, by legal definition?
Texas bluesman in order to prosecute a half-dozen underage marriages, the state of Texas abused over 500 women and Children. Worth it?
TBM, wait till your common law bigamy law gets tested on the basis of free speech violation hypotheticals. Every knows it’s difficult to prosecute common law bigamy. If it were so unambiguous, it wouldn’t be so difficult right? I submit that the reason it’s difficult, is because in order to prosecute common law bigamy, you have to violate someones right to free speech and free association. You have willing parties, the marriages are not registered, what’s the beef? I believe too many people have this platonic idea of “marriage” in their mind. But so far, defining this thing called marriage has been pretty difficult in a secular sense, i.e. outside of a particular group’s well-defined religion. I suggest the state stay out of it, and stick to legal contracts, such as the civil union.