On January 8, the Texas Supreme Court announced a major change to the Rules of Civil Procedure in CPS cases that Texas families should be rejoicing about.
Most people are shocked to learn that there is currently no way in Texas to confirm whether or not the termination of parental rights in a CPS case was done properly.
As we have written about before, the culprit is an obscure rule buried within the Texas Rules of Civil Procedure. Here’s how it works:
- In parental rights termination cases, only 10 out of the 12 jurors have to agree on the reasons for terminating parental rights.
- There are more than 20 reasons for termination of parental rights under the Texas Family Code.
- For example, if CPS accuses the parents of three different reasons for the termination of parental rights, at least 10 jurors have to agree on which, if any, of the three items the parents are guilty of.
- Suppose that 4 jurors agree with the first item, 4 agree with the second item, and 4 agree with the third item. Since at least 10 jurors did not agree, parental rights won’t be terminated, right? Wrong.
- Rather than asking each juror which item they believe the parent is guilty of, the court only asks the jurors whether they believe parental rights should be terminated. Because each juror agrees that parental rights should be terminated, all jurors will vote to terminate parental rights, even though none of the accusations had enough evidence to convince at least 10 jurors of the parent’s guilt.
In essence, a jury can terminate a parent-child relationship without agreeing on what specifically the parent did wrong. A parent could lose their rights even though the prosecution failed to meet its burden of proof on every single accusation.
Similar to 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.
In 2017, THSC drafted legislation to resolve this problem by requiring that jurors be asked the specific items on which they believe a parent to be guilty, allowing the court to identify whether 10 jurors agreed on a single item. When the bill stalled, THSC worked with State Rep. Gene Wu to amend sections of the bill onto another CPS bill, HB 7.
The language added to HB 7 required that DFPS and other parties review the jury rules used in CPS cases and recommend changes to the Texas Supreme Court.
HB 7 was passed into law at the end of the 2017 legislative session. In the fall of 2017, the workgroup authorized by this bill recommended changes to the jury rules to ensure that a jury must actually agree on what a parent did wrong prior to termination of parental rights.
In response to the workgroup’s recommendation, the Texas Supreme Court approved a rule change on January 8, 2020, to end the unjust process used for termination of parental rights. As THSC’s original bill would have done, the rule change will ensure that parental rights are terminated only if at least 10 jurors agree on the specific accusations against the parent.
Many courts have termed the termination of parental rights to be the “death penalty” of family law. In reality, many people would die rather than be permanently separated from their children.
There is perhaps no more severe punishment that the state can inflict than to terminate the parent-child relationship. This makes the haphazard approach that Texas has used in termination cases in the past all the more horrendous.
Thankfully, the Texas Supreme Court has now put an end to this practice.
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