Preventing Unjust Parental Rights Terminations: Scrapping Broad-Form Jury Charge
Homeschoolers have long been on the receiving end of a weaponized CPS system at the hands of government employees or others who disapprove of their homeschooling and, at times, go as far as to terminate parental rights. THSC is at the forefront of the battle to defend freedom for Texas families. Despite the myriad of issues needing attention, one in particular is especially egregious, and for good reason.
In Texas, a family can have their children removed and their rights terminated even if the state fails to meet the burden of proof on every single accusation against them.
How Many Texans’ Parental Rights have been Terminated due to Broad-Form Jury Charge?
Definition: A broad-form jury charge is when the court instructs the jury to only answer the single, broad question of whether or not the defendant (in CPS cases, the parent) is guilty.
According to Chris Branson, THSC Special Counsel on CPS issues, in cases considering the termination of parental rights, the broad-form charge puts a single question to the jury: Should the parent-child relationship be terminated?
Texas Family Code lists 20 possible reasons why a juror can answer “yes.” However, jurors do not have to be in agreement on the reason for termination. In theory, each juror could identify a different reason for deciding to terminate parental rights.
Branson explains: “It is possible that a prosecutor could give the jury 12 or more possible reasons to terminate parental rights, legally valid or not. However, with so many reasons, this scenario repeated 11 more times could result in a situation in which the court does not know with certainty that 10 jurors agreed on any single reason for termination. Nonetheless, the jury would answer ‘yes’ to terminating the parent-child relationship.”
In essence, a jury can terminate a parent-child relationship without agreeing on what the parent did wrong. A parent could lose their rights even though the prosecution failed to meet its burden of proof.
Like the death penalty in criminal law, termination of parental rights is the most severe and final verdict that exists in civil law. This legal loophole that makes it possible to terminate parental rights without the agreement of 10 jurors represents a serious miscarriage of justice.
There is no way of knowing how many Texans’ parental rights have been wrongfully terminated under this procedure.
The Problem with Broad-Form Jury Charge
The problem is a very technical one. In Texas, at least 10 jurors are required to agree on the accusations before the defendant can be found guilty.
The family code provides a list of more than 20 “grounds” on which parental rights can be terminated. It is common practice in CPS cases for CPS to simply copy and paste every single accusation from the family code and accuse the parent of all of them, whether it applies or not.
If CPS accuses a family of 10 different violations, each of those 10 requires the agreement of at least 10 jurors before the parent can be found guilty.
However, rather than asking the jurors whether they believe each accusation is true or false, the court simply asks one catch-all question: “Do you believe parental rights should be terminated?”
Thus, the court has no way to track whether at least 10 jurors agreed on any of the accusations. Each juror can believe a different accusation and think that the other accusations are ridiculous—but all will still vote in favor of termination.
Compounding the Problem with False Accusations
Unfortunately, whether or not the jurors agree on any of the accusations against the parent is only half of the problem. The other half is that, often, many of the accusations are known to be false.
During the 2017 legislative session, THSC filed legislation to end a common practice by CPS of copying and pasting all available accusations from the family code and accusing the family of all of them, whether they are applicable or not.
CPS’ reason for this practice is to avoid the extra work of having to come back and amend the pleadings against the parent once evidence for additional accusations is actually been found. By accusing the family of all possible accusations up front, CPS never has to amend their pleadings when they discover additional evidence.
While this practice may save CPS time and resources, it comes at a great cost to families. In fact, in any other area of law, including accusations in a pleading that you know to be false would be a sanctionable offense.
The agency that oversees CPS, the Department of Family and Protective Services (DFPS), released a fiscal note assessing how much it would cost to implement the bill just days before the bill’s final vote. DFPS estimated that if the reform were to become law, they would have to “amend approximately 75 percent of suits” each year to comply with the new requirement.
In other words, this is an admission from CPS that in 75 percent of cases one or more of the accusations against the parent does not have any supporting evidence.
Has There Been Progress to Resolve the Problem with the Broad-Form Jury Charge?
Unfortunately, the fiscal note which DFPS released ultimately killed the legislation. Since the state budget had already been passed by the time this fiscal note was released, THSC’s amendment was pulled out of the bill because it lacked the necessary funding.
However, when the amendment failed to pass, THSC reached out to Governor Greg Abbott and DFPS commissioner Hank Whitman and received assurance from both that they would assist in resolving this issue before the next legislative session.
Over the last six months, THSC has participated in a CPS workgroup commissioned by Governor Abbott to resolve the issue of false pleadings against families. CPS and other interested parties have all come to the table very willingly to discuss needed changes.
On November 27, the task-force completed its report and released its recommendations, which are now being considered by the Texas Supreme Court.
In summary, the report recommend completely abolishing the current practices for how questions are presented to the jury in CPS termination cases and is pushing for the reforms THSC originally fought for during the 2017 legislative session.
If adopted by the Texas Supreme Court, the reforms would require that each juror answer separate questions about each accusation made against each parent. This change would completely eliminate the current problem of families being torn apart even if the jury had never agreed on anything that was done wrong.
THSC worked extensively with the Texas Supreme Court Children’s Commission during the 2017 legislative session and has continued to do so on several major CPS issues during the interim. THSC is optimistic that an agreement will be reached on this issue that will restore due process protections for Texas families.
THSC is already working on researching and preparing for the 2019 legislative session to protect Texas families. Make sure you sign up for updates to stay abreast of the latest important issues to protect children and their parents. Let’s continue to fight for Keeping Texas Families Free!