THSC exists to protect the right of families to raise their children. Abused or neglected children should be immediately removed from the home. However, the Texas CPS system needs clear procedures. Children not at risk of abuse must not be caught up in the system and traumatized for life by separation from their family.
It will also correct the evidentiary standards required at certain hearings to align with the default standard in the Texas Family Code. Finally, it will provide additional protections for children and families by clarifying that the Rules of Civil Procedure apply to removal hearings. Specifically, the bill:
- Prohibits investigations of normal, everyday activities such as allowing children to play outside;
- Ensures fair adjudication of the rights of non-offending parents, who are often targeted by CPS when they could be a safe placement for the child;
- Requires that a child be returned home as soon as any danger to the child is resolved;
- Ensures that minimum due process standards are met before a family can be forced into court-ordered services;
- Raises the standard of evidence required before a court may approve the removal of a child; and
- Clarifies that CPS can be subject to sanctions for accusing families without evidence.
- Prohibits investigations of normal, everyday activities such as allowing children to play outside
Currently, parents can be and are investigated for allowing their children to engage in normal activities such as playing outside or walking to school on their own. Although these activities were completely normal just a few years ago, the definition of “neglect” under Section 261.001(4) of the Texas Family Code is broad enough that families are sometimes investigated for these simple and reasonable parenting decisions.
The bill rectifies this problem by clarifying that parents may allow children of sufficient maturity to engage in normal independent activities and that such activities are explicitly excluded from the definition of neglect. Utah recently passed similar legislation, known as “free-range parenting.” In addition, the bill adds these activities to the list of grounds on which CPS may not take possession of a child (Section 262.116, Texas Family Code) and on which a court may not order the termination of the parent-child relationship (Section 161.001(c), Texas Family Code).
- Ensures fair adjudication of the rights of non-offending parents, who are often targeted by CPS when they could be a safe placement for the child
If a parent is involved in a suit but has not been accused of abuse or neglect, the Texas Department of Family and Protective Services (DFPS) refers to the parent as the “non-offending” parent. Parents are often separated in CPS cases. However, the DFPS can remove a child from one bad parent and become the managing conservator of that child, even if the child has another fit and loving parent with a safe home who is willing and able to take the child.
Although the DFPS is allowed to temporarily place the child with the non-offending parent, they may deny placement to the non-offending parent on a mere finding that the placement is “inappropriate.”
In response to this issue and others that came to light in 2017, Governor Greg Abbott commissioned a workgroup to examine the problems and propose solutions. The language included in the bill reflects the best consensus that the workgroup could reach. CPS explained to the workgroup that they interpret the existing statute as already requiring findings against both parents. However, some judges and practitioners in the workgroup disagreed that the current statute is interpreted in this way and recommended changing the statute to make it clear that the court must make findings against both parents.
The changes made by the bill are designed to ensure that the statute actually requires findings against both parents so that there can be no question as to how the statute is interpreted. The bill requires that, before giving conservatorship of the child to CPS, the court must make specific findings against each parent, managing conservator, possessory conservator, guardian, caretaker and custodian who is entitled to possession.
- Requires the return of a child at permanency hearings absent a finding of continuing danger, ensuring that the child goes home as soon as it is safe to do so
Since the goal of every CPS case is reunification if possible, the bill amends Section 263.203 of the Texas Family Code to require that the child be returned home at each permanency hearing unless there is a continuing danger and doing so would be contrary to the child’s welfare. The bill would allow the court to retain jurisdiction for the purpose of monitoring the return.
CPS cases often get wrapped up in service completion requirements which are not tailored to the family’s specific situation and which may not be necessary for the safety of the child. This change ensures that the child’s welfare and safe return home remain the primary focus of the case. The child will be returned home as soon as it is safe to do so.
- Ensures that minimum due process standards are met before a family can be forced into court-ordered services
Section 264.203 of the Texas Family Code authorizes the court to order parental participation in services provided by the DFPS. However, there are literally no due process protections in this section to ensure that services are mandated effectively and justly.
There is currently a lawsuit (Department of Family and Protective Services v. Mayra Eads and Jordan Eads) pending in the 216th District Court to declare this statute unconstitutional on multiple grounds, including that the statute is unconstitutionally vague because it allows the DFPS to mandate participation in services without any evidence of abuse or neglect.
When properly used, court-ordered services are an essential way for CPS and the court to avoid the traumatic removal of a child when a less severe intervention is possible through targeted services. However, the current statute often defeats that purpose by forcing families into services even if there is no evidence of abuse or neglect. No findings of any kind are required to support for the court to order services.
A family that fails to adequately complete the services is subject to sanctions, including the removal of the child. Thus, families can be forced into the CPS system unnecessarily and can even have their children removed, despite the fact that there was no evidence of abuse or neglect when CPS became involved.
The bill moves the authorization for court-ordered services to Section 262.201 and integrates it into the existing process used for adversary hearings. The bill requires that services be ordered at the adversary hearing if the court finds that any problems can be solved through services without removal from the home. This change allows the court to avoid removal of a child when services are a viable solution and also ensures that only parents of at-risk children are forced into services.
- Corrects the evidentiary standards required at adversary hearings to match the default standards used in the Texas Family Code
Section 105.005 of the Texas Family Code establishes that unless otherwise specified, the default evidentiary standard for all Title 5 suits is a preponderance (majority) of the evidence. However, the evidentiary standard for adversary hearings is the lower standard of probable cause. While this standard is sensible for the purpose of opening an investigation, it is woefully inadequate for a full evidentiary hearing to decide whether a child should be removed from his or her family.
Under the current standard, a child may be removed from his or her family for more than a year even when the court finds it objectively more likely than not that no abuse or neglect occurred. To justify the traumatic removal of a child, it is obviously reasonable to require that at least a majority (preponderance) of the evidence support removal.
The bill remedies this problem by making the evidentiary standard for the initial adversary hearing consistent with the default standard used in the rest of the Texas Family Code. At the very least, it should be more likely than not that abuse or neglect occurred before a court resorts to the drastic and traumatic remedy of removing a child from the home.
- Clarifies that Texas CPS cases are subject to certain pleading requirements under the Rules of Civil Procedure
Governor Abbott commissioned a workgroup after the end of the 2017 legislative session to study the pleading practices of CPS. The workgroup reached a consensus to adopt the exact language now in the proposed bill, which clarifies that CPS cases must comply with Chapter 10 of the Civil Practices and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure, which govern the filing of false charges.
CPS attorneys often copy and paste the entire list of grounds for termination listed in Section 161.001(b)(1) of Texas Family Code and accuse families of each one by default. This practice arose as a way for CPS attorneys to save time on paperwork. However, it predictably results in blatantly inaccurate pleadings and disinclines families to cooperate because they feel that the system is stacked against them.
The workgroup, including CPS representatives, agreed that explicitly applying the current Rules of Civil Procedure to these cases would be a simple solution to the problem.
We believe that raising children is a family’s God-given right and calling. 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.