At some point, this blog may be renamed the Texas Family Law Blog. One paragraph in a recent comment on the FLDS case deserves special attention because of what seem staggering implications for families. The commenter wrote:
In a case like Merianne’s, where CPS is asking to take possession [I think "custody" sounds a bit more humane] of the child afer notice and a hearing, the standard is much lower than the standard at the 14 day hearing — which is only triggered after an emergency removal before notice and hearing. After notice and hearing, the child can be removed if the court finds “sufficient evidence to satisfy a person of ordinary prudence and caution” that “allowing the child to remain in the home would be contrary to the child’s welfare.” There does not have to be a finding or abuse or neglect, per se.
The commenter refers, I believe, to Texas Family Code §262.205 which readers can access here (scroll down until you find 262.205). The power that this so-called “standard” vests in what may be the most poorly trained, badly motivated judges in the land seems nearly unbounded. I wonder to what extent this language has been tested for constitutionality. Seems to me that “contrary to the child’s welfare” authorizes judges to break up families in an arbitrary fashion.
{ 27 comments… read them below or add one }
I don’t think it has been tested constitutionally. I don’t think it has been tested much at all really — because prior to Gates, standard operating procedure was to do emergency removals, with or without a court order, and then have a 14 day hearing. It is not typical for CPS to leave a child in the care of its parents and have a hearing after notice .. the situation in which this standard comes into play.
I agree, it is a dangerously low threshold and it is so vague it could mean anything a judge could want it to mean. There is always the “best interest” standard that overrides all, and there are some particular factors that must be considered in a “best interest” analysis … but not enough of a safeguard for my comfort.
I must be missing something. I don’t read those sections in the same way that the commenter apparently does.
“(c) If the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing
danger to the physical health or safety of the child and for the
child to remain in the home is contrary to the welfare of the child,
the court shall issue an appropriate temporary order …”
Insofar as the training these judges receive, remember that Barbara Elias-Perciful is on the Texas Supreme Court Training Committee of the Permanent Judicial Commission for Children, Youth & Families. She’s the one who submitted the Amicus Brief to the Supreme Court insisting that the children be kept from their parents to be used as hostages enabling the State to force the FLDS to do what the State wished them to do. Big deal about due process, etc….
What an asset to be tapped for the training of these judges! NOT.
I also recently listened to the sound file of a CPS hearing wherein a religious home schooling mother tried to explain to the judge (Actually, she really isn’t a judge. She’s one of those unelected associate judges appointed by the real ones.) why it was important for her to homeschool in order to aid the spiritual health of her children and advance their salvation. The mother used an analogy to Baal (the statist god to whom the pagans sacrificed children–Moloch being another permutation of that god) The judge didn’t know who Baal is.
It’s rather difficult to train a judge who starts out as an ignoramus.
I recall discussions on many topics regarding this Texas Family Code since this mess started. One that sticks out in my mind often is how confusing the definitions of certain words could be at times, as some definitions given were only for the Subchapter or Section they were within. There were a few attorneys commenting at various blogs, when the case first broke, that provided conflicting definitions and none were ever rights all the time.
I wish someone could show me where the definitions needed to determine the EXACT meaning of “contrary to the child’s welfare” can be found in that code.
Another thought I had on that specific post was that I had no luck finding 262.201 mentioned in the Motion to take custody of Merrianne. I do not see that it’s absence there makes any difference, maybe it was mentioned in the order that resulted from that hearing, or maybe I missed it(!).
I just noticed Kurt’s link here. The recent web updates were keeping me out when I used my old links.
That 262.201 is the 3 prongs they must meet ALL of, did not meet any of them, and the 3rd pointed that out rather well.
I thought this 262.201 was ONLY “to take possession of a child without prior notice and a hearing.
Old links would not get me in to see the Family Codes.
The “3 prongs” that applied to taking ALL 469 children.
I do not see how this even relates to Merrianne being held hostage.
Sorry it was not clear in my comment.
Disregard the last couple comments there. I’d went to 262.101 instead of 201.
Did word search on page for “contrary to the child’s welfare”. First hit was 101. That exact phrase is on the page in 5 locations.
Wrong section.
Try this one.
§ 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF
GOVERNMENTAL ENTITY. (a) In a suit requesting possession of a
child after notice and hearing, the court may render a temporary
restraining order as provided by Section 105.001. The suit shall be
promptly set for hearing.
(b) After the hearing, the court may grant the request to
remove the child from the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to
possession of the child if the court finds sufficient evidence to
satisfy a person of ordinary prudence and caution that:
(1) reasonable efforts have been made to prevent or
eliminate the need to remove the child from the child’s home; and
(2) allowing the child to remain in the home would be
contrary to the child’s welfare.
Kurt — you referenced the wrong section.
Well well, the Family Code spells out real nicely the criteria for removing in a “Full Adversarial Hearing” (262.201) but not in a “Hearing when Child Not In Posession Of Governmental Entity” (262.205).
Can someone explain to me why there is strict criteria in the first case but not in the second case? Is the end result, keeping child in custody? Why are there different standards? This doesn’t make any sense, or maybe I’m missing something. If this is a real gross double standard in the code, I think it can be challenged, as Kurt said, on Constitutional grounds, perhaps for vagueness.
It looks to me as if 262.205 reads (1) AND (2) must both be met.
While (2) may be open to any fantasy, (1) looks like someone has to show there is a “NEED to remove the child from the child’s home” in which those “reasonable efforts …to prevent or eliminate” that NEED failed to achieve.
One would hope that another part of this Family Code identifies exactly how that “NEED” is determined, what criteria is used in that determination.
Sorry about that. 262.205 can be read at the same link. Just have to scroll down a bit.
Does anyone have the link to the page listing ALL the STATUTES?
Both my old link or working backwards on the address from the page Kurt provided eventually end up at the page telling me “The Texas Legislature Online website has recently been updated”, and the links from it lead to dead ends.
A lot is left to their discretion. Too much. But can you imagine trying to train this group of ignorant do-gooders on what constitutes real abuse? This report reveals the challenges.
I recently (April) searched for lawsuits against TDFS/CPS and found none. Most people who come under attack don’t have the means to persue legal action. Their only recourse is to try to meet CPSs demands in order to get their kids back. They picked on the wrong person when they took Gates kids.
Regarding “contrary to the child’s welfare”….
Given that a kids is 4 times more likely to be injured or killed in CPSs “care”,
a child should then be at least 5 times more likely to be injured or killed in their home than in CPSs “care”, before CPS can whisk them away.
Makes sense to me. LOL
Here’s one that got me. CPS took a teen and kept him for 48 hours while they “investigated” because his dad, unaware that it was an alcoholic beverage, bought his son a Mike’s Hard Lemonade. Was removal for such a small matter really warranted?
Yeah, that Hard Lemonade thing was totally ridiculous. But seriously, if the Texas legislature is set to make legislative changes to the CPS racket, maybe they could start with really defining “contrary to the child’s welfare”. This phrase — as is — is about as Stalinist as you can get. Has no business being in the statutes of any state in the Union.
The entire Texas Family Code is at http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm.
One way to get this concept constitutionally tested really fast — assuming that the legislature fails to do its duty in defining the term — would be to have a family law judge remove a child from homosexual parents with the explanation that children are better off with heterosexual ones. In short order, we’d have a million voices clamoring for definition.
http://www.statutes.legis.state.tx.us/SOTWDocs/FA/htm/FA.261.13957.12071.htm
FAMILY CODE
TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP
SUBTITLE E. PROTECTION OF THE CHILD
CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT
SUBCHAPTER A. GENERAL PROVISIONS
I have always assumed “contrary to the child’s welfare” to mean anything that constitutes abuse/neglect, so you refer back to the definition of abuse/neglect. Those definitions, at the link, are fairly clear, but it still leaves a lot of room for interpretation and personal ignorance or prejudice.
Sound Off………
2008 Child and Family Service Review (CFSR)
What is the Child and Family Service Review?
The Child and Family Services Review (CFSR) is a Federal-State collaborative effort, administered by The Children’s Bureau, designed to help ensure that quality services are provided to children and families through state child welfare systems. Following a review, states develop and implement Program Improvement Plans (PIPs), as needed. All states have completed one CFSR (a process that spanned four years), and each state required a Program Improvement Plan (PIP) to improve outcomes and systemic factors. Now, all states have gone or are going through their second round of CFSRs, which began in early 2007 after adaptations to the CFSR process.
What is the Texas CFSR?
The Texas Child and Family Services Review (CFSR) is part of the national CFSR initiative that focuses on the outcomes of state child welfare systems. The first Texas CFSR occurred in February 2002 and the second was completed during the week of March 24, 2008. During the March 2008 review, over 500 stakeholders were interviewed at the three county sites in Harris, Dallas, and El Paso Counties and at the state office site in Austin.
What happens after the Child and Family Services Review?
Texas is in the process of completing its second Program Improvement Plan to improve identified areas that need to be strengthened. As you know, Texas has committed to strengthening its state child welfare system, particularly evidenced during the last two legislative sessions. We will use the CFSR process to continue our efforts to achieve our CPS Vision:
Children First: Protected and Connected
I would like to provide input into the Texas Program Improvement Plan, how do I do that?
Your input is valued! You are welcome to provide your input directly by contacting the Texas CFSR Program Improvement (PIP) Coordinator at the address listed below.
Dan Capouch, MSW, JD
Texas CFSR Coordinator (MC W-157)
P. O. Box 149030
Austin, TX 78714-9030
Well, it appears there are a lot of broad and not-so-broad definitions of this and that in the Family Code as well as descriptions of required procedures. However, I couldn’t find any rules regarding the hearing itself. It sounds to me like, as long as the state goes through procedural motions, and presents their findings in court, after that, it’s all up to the judge to say yea or nay.
For some reason I assumed that the judge was required to state under which section and number of the code the violation is defined, and under that violation was the ruling being made. And it has to be more specific than “contrary to the child’s welfare” which just begs the question; i.e. Exactly WHAT, as articulated in the code, defines “contrary to the child’s welfare” in this case? It’s astonishing that the judge or the state isn’t required to reconcile their findings on a point-to-point basis with items in the code that describe the offense! For example, if the mother was found to have encouraged her daughter to submit to sexual abuse, well then, for God’s sake, say so, explicitely, and provide specific evidence. Don’t leave everything up to “inference” as if we’re in some medieval court room!
welfare- 1: the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity
It’s been shown that being in the control of CPS is “contrary to a child’s welfare”.
I can’t get back to the article I read a few days ago, but a few years ago (04?) it was so bad, HHS threatened to remove CPS from TDFPSs control.
That section (1) would mean that family preservation services (FPS) have been rendered. If I were an attorney I would try to make the state prove that they had used the “Homemakers model” and not a substandard FPS service. Although the Homemakers model has been the standard for quite some time, very few agencies actually provide that model’s services. Most of the money is spent trying to take borderline (if that) children. If the state(s) spent more money on FPS, taking the right children would happen frequently. Instead of 93% of children needing to be returned, the portion returned would be less than 50%, I estimate ir would be about 20% would be returned after being put in care.
riki — believe it or not, I agree.
I have a question, is that allowed on here, if not could you direct me to a site that I can access. My question. CPS has taken custody of my niece’s daughter. She is 12 months old. They have had her for 6 months. My niece is fighting a drug addiction. She is not winning at this time. We asked CPS if the child could be moved to my home. The caseworker asked us to submit my information and she would begin the process. We submitted the info on Oct 20, 2008. She did the background and criminal history check. She then said she would submit a request for the home study. She let the request sit on her desk for 3 weeks and only then submitted it after I called Family Evolutions and spoke to them about the home study. Family Evolutions then informed me on Nov 14 that they did indeed recieve the request that morning. After performing the home study, Family Evolutions returned a postive home study to CPS. The case worker recieved it Dec 1 but did not file it with the court. When we went to court on Dec 11the she stated that she was not filing it with the court as she had some concerns about the study and decided not to use it. I asked what the concerns were she stated that the concerns related to my daughter who at the time of her death was 16. She had been in an inappropriate relationship with an older man, after she had ran away. After many months of her going to treatment facilities and counseling and her continuous running away, I was able to get her out of the relationship. He then killed her. The CPS caseworker stated that she could not allow another child to be in my home, although I had applied for a foster care license and had discussed the issue of my daughter at length with the caseworker for the foster care license and she assured me that it did not factor into my being a foster parent, and the fact that CPS allowed a friend to place her child in my home for 3 months while awaiting investigation for the moms neglect or abuse. Then the child was allowed to return home to her mother. My question, what should be my next step and do I have the right to hire an attorney to represent myself in this matter. Thanks
Helen — Deeply sorry to hear of your daughter’s untimely death. Very sad. Not knowing where you are, it’s hard to say exactly what to suggest. Every state has it’s own rules. If you would contact me by e-mail at kurt@schulzkelaw.com, I’ll be happy to help you find the information you are looking for.
Helen,
The right hand doesn’t know what the left is doing. One person says “not a problem”, another says, “Sorry s/he was wrong.” Very common.
And dragging their feet with investigations. They’ve been under fire for that for years.
If you are in Texas and need an attorney, you might consult with these people and see if it’s a good match.
http://www.swandalawfirm.com/Child-Protective.shtml
They specialize in CPS cases. Can’t vouch for them, except to say I spoke with them about an issue with another corrupt agency under TDFPS and was impressed, fwiw.
Pretty bad, huh? When CPS is so corrupt that one questions if an attorney might work in their favor rather than the clients.
I’m sure you know this, but don’t rely on them to tell you your rights. They have been known to outright lie or withhold information.
For what it would be worth, I’d send a formal complaint to DHHS and the AGs office.
I think this is an interesting philosophical question: should a woman who’s 16 year old daughter got into trouble and died tragically be permitted to keep her sister’s children until her sister recovers from a severe drug addiction?
From a libertarian/constitutional perspective, frankly, I don’t know even know why the question is asked at all — of course a relative should be given charge. The real question should be: why is the government involved in the first place? Let the family work it out! If the sister wants to let her sister take care of her niece, why in god’s name does a distant government agency, filled with nameless drones, have any say??! Who gave the government agency, CPS, the power to play god and make life-and-death decisions about people’s lives??! What business does a government agency have putting a child, who has a caring loving relative willing to care for her, in the care of total strangers??! This is a statist mockery.
Joey –
I agree that it is a statist mockery. And it brings into stark focus that vague language — “contrary to the child’s welfare”. It’s a horrendous piece of legislation. You’d expect it in the PRC, not the USA.