THSC has written several times this year about improvements being made to the Child Protective Services (CPS) system to protect the due process rights of Texas families. However, families are still able to be forced into CPS without due process being followed.
CPS, as well as a number of judges, attorneys and other experts from around the state have come alongside THSC and negotiated changes to significant reforms of several major problems in the current system.
Avoiding Due Process
The most pressing unresolved problem is a process used to force families into CPS services, often without providing them due process protections.
Section 264.203 of the Texas Family Code, known as the “court-ordered services law,” states: “The court on request of the department may order the parent, managing conservator, guardian, or other member of the subject child’s household” to participate in CPS services.
These services may be designed to alleviate the effects of any abuse or neglect that has occurred, or may be designed to prevent future abuse or neglect.
However, the problem is that the court-ordered services law provides no due process protections whatsoever. Literally, there are none. According to the law, there are two prerequisites for this type of service:
- CPS may request court-ordered services
- The court may grant the order.
The lack of due process is significant:
- No protections are included regarding what must be proven before the family can be required to participate in services
- No standard for evidence is mentioned
- There is no appointment of counsel for indigent parents
- And the list of missing protections goes on.
What makes the problem even worse is that a family who fails to comply with the services can have “appropriate sanctions” imposed, including the removal of the child as specified by Chapter 262 of the Texas Family Code.
In layman’s terms, the progression works like this:
- CPS files a request to order a family to take CPS services
- The judge can grant the request without requiring CPS to prove anything in particular
- If a family fails to complete those services, they can be sanctioned by the court
- Their failure to complete the services can be used as evidence against them to try to remove their children.
A major point of contention on the issue is whether or not CPS is required to already have an open suit for allegations of abuse and neglect against the family prior to filing a request for court-ordered services.
Because no due process protections are included in the court-ordered services law, some judges assume that CPS must be required to have already gone through the normal process of suing the family for abuse or neglect, including the due process protections that come with it.
However, in many courts CPS is allowed to use the court-ordered services law instead of filing a normal suit against the family. Thus, none of the due process protections included in the normal process are required to be followed.
In 2017, THSC drafted legislation to close this loophole and restore due process for Texas families. Unfortunately, although THSC was able to pass nine other CPS reforms, the legislative session ended before THSC could get this reform passed.
The Texas Public Policy Foundation (TPPF) which THSC has worked closely with on many CPS reforms has filed a suit challenging the constitutionality of the court-ordered services law because of its lack of due process protections. THSC and TPPF are also working on changes to the law that can be made during the 2019 legislative session to restore due process protections in the court-ordered services law.
THSC believes that the best place for children is in a home with a loving family. Children who are in immediate risk of harm should be immediately removed for their protection. However, wrongly removing a child from a loving home can cause lifelong trauma for that child.
For this reason, the utmost care and the highest standards of due process protections must be used any time CPS becomes involved in a family.
Years ago, THSC expanded our mission statement to include protection of the broad right of families to raise their own children. We knew that the right of families to homeschool is based on the presumption that families have the right to raise their children in the first place. That is why THSC fights tirelessly for Keeping Texas Families Free.
We believe that the best place for children is in a home with a loving family. If you do too, please stay informed and be prepared to contact your legislators in support of CPS reform legislation by signing up for THSC legislative, advocacy and political updates.