The Constitutional 2-Step


Often I get into heated debates over Constitutional rights. Most people only look toward the U.S. Constitution, but I contend that you can only know your true rights by first looking at the Federal and then looking up the same subject in your respective state. After all we are supposed to live under a “dual sovereignty”. Therefore looking at one without the other is incomplete.

But before I do a side by side comparison as a Child Protection Reform Advocate I need to point something out. Child Protection, Family Law and Juvenile Law are not enumerated in the U.S. Constitution. So when we look at the 9th amendment we find the wording:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Indicating those certain rights do not fall directly under the U.S. Constitution, therefore the need for the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And this is where Child Protection issues gets pushed back to the states. So when you see case law that reads like: The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985)

It becomes important to compare the U.S. Bill of Rights to your state Bill of Rights.

Since I am from Texas I will use our Constitution as an example.

U.S. Constitution

Texas Constitution

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Article I, Section 6

FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

Article I, Section 8

FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

Article I, Section 27

RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Article I, Section 23

RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Article I, Section 25
QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 9
SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article I, Section 19
DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Article I, Section 13
EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Article I, Section 15
RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article I, Section 13
EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

The Texas’ Article 1, Bill of Rights contains several more sections but (I feel) it is important to look at Sec. 29-31. Section 29 locks in the “Bill of Rights”. Section 30 defining the rights of Crime victims and Section 31

Sec. 29. PROVISIONS OF BILL OF RIGHTS EXEMPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is exempted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Sec. 30. RIGHTS OF CRIME VICTIMS.

(a) A crime victim has the following rights:

(1) the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process; and

(2) the right to be reasonably protected from the accused throughout the criminal justice process.

(b) On the request of a crime victim, the crime victim has the following rights:

(1) the right to notification of court proceedings;

(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial;

(3) the right to confer with a representative of the prosecutor’s office;

(4) the right to restitution; and

(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.

(c) The legislature may enact laws to define the term “victim” and to enforce these and other rights of crime victims.

(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.

(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.

(Added Nov. 7, 1989.)

Sec. 31. COMPENSATION TO VICTIMS OF CRIME FUND; COMPENSATION TO VICTIMS OF CRIME AUXILIARY FUND; USE OF FUND MONEY. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.

(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.

(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.

(Added Nov. 4, 1997.)

Last but not least, I must include Texas’ marriage clause. It is quite upsetting that Texas has not filed suit against the recent SCOTUS decision on same-sex marriage. By issuing the recent decision, SCOTUS greatly overstepped its bounds and brought the sovereignty of the states into question.

Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.

(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

(Added Nov. 8, 2005.)

The above gives you a good example of why you need to do the Constitutional “Two Step”. Of course to fully understand your state you must dig into the rules for legislation, courts, elections and everything else that goes into your state government.

Posted in #OpExposeCPS, Constitution, Eyes on Texas, Uncategorized | Leave a comment

Judge Went Pontius Pilate on Giwa Family


When advocates, friends, and family gathered in Texas’ 314th District court Thursday, January 7, 2015 in support of the Giwa family they never expected the day they would experience.

Two days earlier the Giwas attended a Permanency Planning type meeting where it was announced that the primary goal was “Unrelated Adoption.” No one ever mentioned what the concurrent goal was. Those that knew of this goal was expecting this to be a Permanency hearing. Early on it in the hearing it was realized that this was actually the 60day Status hearing for the two girls that had been taken November 7, 2015.

No one expected the outcome of the day. But let the video speak first.

Sorry… Having problems with the embed player.

 

Local advocates and court watchers noticed during the morning hearings that Judge Phillips’ demeanor toward the cases seemed a bit different on that morning. It was even part of the discussion topics over lunch. It seemed that he was making CPS prove their cases.

Just after lunch there was a case where both CPS and CASA testified that the mother had completed services. Phillips asked a couple of questions about employment and housing… congratulated the mother and told her the child was coming home. True every case has different factors and we don’t know all of them as they related to her case but advocates have seen similar cases in this court go quite different.

About mid-afternoon the court started shutting down; when suddenly they realized they had forgotten the Giwa case. The court coordinator rushed about and got everyone back to the courtroom.

Witnesses were sworn and as soon as the county attorney read the case into record and called the caseworker as a witness, the judge took over questioning. He quickly clarified that this was a 60day Status Hearing for the girls and the son was on a separate case.

Almost immediately the question of venue came up. The caseworker said something about she had thought that the respondent’s attorney had filed a motion for change of venue early in son’s case. The judge almost immediately said that if motion to change venue were filed that he would transfer both cases to Fort Bend County immediately. The Giwa’s attorney Kory Booth announced he would do that.

But only after he had agreed to the transfer did he start actually questioning why the girls were in the system. Of course the testimony immediately was that the son had been placed on a “no fly” list and the parents were arrested at DFW Airport while trying to board a plane. State reason for arrest was “Interference with child custody.”( TX PE §25.03)

When asked about pending charges over the girls, the worker first answered “Child Abandonment” but quickly changed that to “Reckless Endangerment” and began quoting the conditions of TX PE §22.041 (c) but the judge stopped her. She went on to state that the DA from the arresting county had refused charges and they were trying to get them through Harris County. Which sounds like forum shopping to me.

At no point during testimony was it proven that the girls was in any danger other than the fact that their parents were arrested. It is quite certain DFPS had no intention of keeping them out of the system or they would have used the Federal and state mandated “Reasonable Efforts.” For the state that would have been to use the Five day protection of TX Family Code (TFC) §262.110. They certainly failed to meet the 3 conditions of an emergency removal without a court order under TFC §262.107 which in itself raises questions of Official Oppression ( TX PE §39.03).

Many in Texas (including Judges and Attorneys) do not realize that the statute (TX HR §40.061) that defines a DFPS employee’s immunity was amended in 1997 to include the conditions that removes it in subsection (c).

(c) This section does not provide immunity to a department employee who, in a suit affecting the parent-child relationship in which child abuse is alleged or that arises out of a child abuse investigation, in a criminal prosecution for an offense in which child abuse is an element, or in the preparation of the suit or prosecution:

(1) commits or attempts to commit perjury;

(2) fabricates or attempts to fabricate evidence;

(3) knowingly conceals or intentionally withholds information that would establish that a person alleged to have committed child abuse did not commit child abuse; or

(4) violates state or federal law in the investigation*
or prosecution**
of the suit.

*Investigation includes at any point during DFPS investigative activities.

**Prosecution begins at child removal and ends when final orders are written at a “Trial on Merits” 12-18 months after removal.

Which when compared to the caseworker’s actions it becomes quite clear that she violated her immunity to prosecution. Now charges in addition to Official Oppression could possibly include Unlawful Restraint (TX PE §20.02) or direct Abuse (TX PE §22.04). But it seems very clear that the children’s rights as crime victims were violated under Art 1, Sec 30 of the Texas Constitution.

But is seemed to digress a bit from the court.

Once the Judge established that he did not feel the girls belonged in the system he turned to question where the family stood on services. Caseworker immediately jumped on the fact that CPS was asking for a third psychological exam. Attorney Booth spoke up and said that he had a copy of the 2nd evaluation and that it had been given by a CPS approved vendor.

Judge Phillips took one look at it and again became disturbed with CPS. He asked if she had seen it which she confirmed she said she had. He named the type of evaluation (I believe MMPI2) which is one with built in traps to catch a person lying or trying to fake the test. He then pointed out that a 3rd evaluation would be excessive and would not prove anything.

Then the question of permanency for the son came up. This was when the subject turned to the permanency goal of “Unrelated Adoption”. He told CPS in no uncertain terms that he did not see any evidence supporting Terminate Parental Rights (TPR).

It was about then he repeated that he was transferring both cases to Fort Bend County and was ordering the girls home that day.

This is where he took on the persona of Pontius Pilate. It was clear that he knew that neither case should have gone this far and they had done so under the jurisdiction of the 314th District court. But instead of (in the least) dismissing the girls case, he washed his hands of them and sent them to Fort Bend County. Much like Pontius Pilate did when he sent Jesus to the cross.

Not sure if the courts of Fort Bend County can accept these cases directly or if they will have to be sent to the Second Administrative Regional Judge Olan Underwood to decide where these cases will be transferred. He has the power to send them to either county. Only time will tell.

Posted in #OpExposeCPS, Abuse by CPS, Eyes on Texas, Texas DFPS | 2 Comments

Abilene Klapheke Case Continues To Haunt DFPS


After more than 3 years after Klapheke, arrests of DFPS employees continue.

Texas CPS watchdog groups have waited since late summer of 2012 to hear the final fate of a number of DFPS employees that were involved on case where a child died on Dyers AFB. It seems the story is still unfolding.

Just after former Region 2 & 9 Director Regional Director “Bit” Whitaker turned herself in the Adeline Police department conducted the following press conference.

Whitaker was scheduled to go to trial in November 2015. But the lack of any updates on her case makes one wonder what was going on because on January 5, 2016 Big Country News reported the arrest of one of the other two women mentioned in the video.

When Gretchen Denny, 42, was arrested on December 19, 2015 she was released from jail the next day after posting a $10,000 bond. Ten times that of Whitaker. Both women are charged with Tampering With/Fabricating Physical Evidence. These allegations that surfaced during the investigation into Klapheke. A synapsis of the case is below.

Background

On August 28, 2012, security police at Dyers AFB was summoned to base housing to find 22 month old Tamryn Klapheke lifeless and unresponsive. Her two sisters 3 mo. And 3 years were air-lifted to Cook Children’s Hospital in serious condition.

Mother, Tiffany Klapheke was arrested and charged with 3 counts felony injury to a child and held on $500,000 bond. Mother alleged severe depression and other issues over her husband Airman Thomas Klapheke having been deployed to the Middle East as the reasons she failed her children. It was later revealed another Airman had been residing in the home also. He was later court martialed and sentenced to 3 years in military prison.

Dyess Family Advocacy Center acknowledged investigating nine instances of child and medical neglect against the Klapheke’s since 2010; of those seven were substantiated, including the three occurring the day of Tamryn’s death.

Abilene PD began an extensive investigation into the family and Texas’ DFPS’ involvement. Early on it was found out that Investigator Claudia Gonzales had not followed department policy by closing their case only 6 days prior to Tamryn’s death. It was soon revealed that it had been more than 10 months since there had been a face to face visit with the family. It is my understanding Gonzales quit soon after. Almost immediately APD was met with resistance by DFPS employees.

Timeline Klapheke Case

Extensive media coverage was conducted by www.ktxs.com which can be found via this search. Their coverage was referenced for most of the dates to build this timeline.

  • August 28, 2012 – Tamryn’s death.
  • August 29, 2012 – Autopsy performed.
  • August 30, 2012 – Mother Tiffany Klapheke arrested.
  • October 15, 2012 – After extensive problems with uncooperative DFPS employees, a search warrant was issued for the Region 2 headquarters and certain employee cars, alleging three supervisors had participated in “PC §37.09 “Tampering with Evidence”; a 3rd degree felony.
  • October 18, 2012 – DFPS Commissioner Howard Baldwin visits Abilene office to assess the situation.
  • Same day, KTXS does an article where an ex-CPS Worker alleging evidence tampering was common practice at the Abilene office.
  • October 19, 2012 – Regional Director “Bit” Whitaker, Program Director Gretchen Denny and Investigations Supervisor Barbara McDaniel were placed on administrative leave.
  • Same day, KTXS reported, “Senior Airman Christopher Perez, 7th Security Forces Squadron, was charged with failure to report child abuse or neglect under Article 92 of the Uniform Code of Military Justice (UCMJ), as well as adultery and child endangerment under Article 134 of the UCMJ, in relation to the case of Tiffany Klapheke.”
  • October 23, 2012 – A fourth supervisor based in Wichita Falls, Region 2 Program Administrator Geneva Schroeder was also placed on leave. She was reinstated Mar 2013.
  • November 9, 2012 – DFPS Commissioner Baldwin resigns. Article reveals that DFPS is conducting two investigations: one for records tampering and the one for the child’s death.
  • November 13, 2012 – HHSC Executive Commissioner Kyle Janek appoints former Judge John J. Specia as DFPS Commissioner effective December 1, 2012.
  • Same day, KTXS also reported a special prosecutor had been assigned.
  • March 2013 – Whitaker resigns.
  • April 2013 – DFPS seeks to terminate Gretchen Denny.
  • May 2013 – KTXS broke the news of an improper relationship with Thomas Klapheke and CPS Investigator Supervisor Tiffany Gann which resulted in two CPS employees resigning and two more disciplined for having knowledge of the situation. It appears Gann and the Investigator were involved in the post fatality investigation. The other two did not work on anything related to Klapheke.
  • August 2014 – former regional director Bit Whitaker was arrested for felony record tampering and is facing 2 to 10 years and up to $10,000 fine. A pre-trial hearing was recently held and her trial is set for November 2015.

Should you want to find out more from mid-2013 leading up to Whitaker’s arrest and present day, I recommend looking into KTXS who has published close to 100 articles relating to the Klapheke case. They cover the Airman’s arrest and court martial for failing to protect. The ordeals dealing with the mother’s prosecution. Summing up with events dealing with the Grand Jury and prosecution of these women.

Denny is due to be arraigned on January 29, 2016. Texas eyes will continue to watch these criminal proceedings. As they unfold we will keep you informed.

Posted in #OpExposeCPS, Crimianal Activity, Eyes on Texas, Falsifying Records, Uncategorized | 3 Comments

CPS Protest vs Beached Whale


protest vs whaleAbout 7:30 am, on December 22, 2015 there was a report of a beached whale in Galveston, TX. Thirty minutes later a protest in Houston started to draw awareness to problems with Texas’ CPS system began. Both events had media coverage. The whale footage aired… the protest did not.

The protest was to draw attention to a situation where CPS was hitting a family hard. The family had a young set of twins, but the boy was not developing as fast as the girl. The mother had been studying in Scotland. The child had been examined over there and the parents wanted second opinion. When the parents returned to Houston the Scottish Social Services accused them of fleeing to avoid an investigation and contacted Texas DFPS. Texas demanded that the child be examined here and then petitioned the court for Temporary Managing Conservator-ship back in April. The parents immediately went to media.

When the court decided to return the child, part of the court order included a gag order plus there was a restriction that the child would not be removed from Harris County and the contiguous counties. Early in November the family received an emergency call that the fraternal grandmother in Nigeria was near death. She had never seen any of the children. The family filed for emergency passports and was arrested while trying to board a plane in Dallas. Once again they were accused of fleeing. (Fox 26 story)

Now all 3 of their children are in state custody and in a recent hearing the court sanctioned the family $5,000 for violating court orders. This drew the attention of some civil rights activist, who called for the protest.

One problem we have is: “The general population doesn’t know what is happening with CPS and Foster Care and it doesn’t know that it doesn’t know.” So we have a massive education task before us.

A recent Texas development is that on December 17, 2015 a federal judge ruled on a Class Action lawsuit that Texas was violating the Constitutional rights of some 12,000 Texas children in foster care. A very serious development. One that needs to be addressed farther but is far to extensive to cover now so it will be addressed in a follow-up peace.

What happened with the whale? I know that it died. We know that a necropsy was planned for Wednesday to find out why it was sick. Not that I dislike animals. I really love them. But in general I tend to worry about humans over animals especially when it comes to children being mistreated by the system charged with the duty to protect them.

But this was not the first time a a situation involving an animal took precedence over a child caught up in problems with CPS.

In July of 2012 an Austin police officer shot a beloved family pet named Cisco. A few days later a woman leaving a Woodlands, TX clinic was murdered and her baby ciscokidnapped. Police was quickly able to locate the getaway car from witnesses’ descriptions. The perpetrator and baby were soon located. But instead of simply returning the child to his family, CPS decided to conduct an investigation on his father whom had a felony drug conviction which triggered a pending drug screen sending the baby and his two siblings to be placed with relatives.

It was not enough that the man’s wife was murdered, but CPS saw fit to strip him of his complete family over the wrong doings of a complete stranger. We are unsure how long the children were kept away because the media coverage soon fell away. We do know that by the time Verna McClain was convicted and sentenced to “life without parole” the children were home.

In the 3 days between the shooting of Cisco and that of this woman the Facebook page “Justice for Cisco” gained a little over “100,000 likes” while the “Angel Eyes over Texas” page had only drawn just under 200 “likes” in over 2 years of champion the cause of Family Rights. A friend even did a blog piece on this “It’s a Dog’s WorldTo this day the Cisco page carries right at 97,000 followers compared to AEovrT’s 1,562 proving Texan’s have a far greater concern over animal rights than children and parents dealing with CPS.

But really when you think about it we can see why. It’s estimated that 70-80 million dogs and 74-96 million cats are owned in the United States. Approximately 37-47% of all households in the United States have a dog, and 30-37% have a cat. (Source: APPA)

But when you start looking at children involved with CPS only about 3% of the child population is affected by it. Even extending it out counting Aunts, Uncles, Grandparents and other extended family about the worst case scenario is about 19,080,000 million or about 6%. This means there are about 8 times more Americans affected by animals than the child welfare system. So what can we do about it?

 

Posted in #OpExposeCPS, Constitution, Eyes on Texas, Family Rights | 16 Comments

Austin Mom wants her son back! – AVNetnews


Authored by: Raquel Okyay

A Texas family court, without cause, awarded custody of a ten-year-old boy from mom’s full-time care only to place him with a known abuser and sexual deviant. “I did nothing wrong. No history of abuse or neglect, no drug addiction, no drinking problem, and no mental illness,” said Tiffany Ann Aliano, a divorced mother, and … Continue reading Austin Mom wants her son back! →

Source: Austin Mom wants her son back! – AVNetnews

Austin Mom wants her son back!

TiffanyAliano3A Texas family court, without cause, awarded custody of a ten-year-old boy from mom’s full-time care only to place him with a known abuser and sexual deviant.

“I did nothing wrong. No history of abuse or neglect, no drug addiction, no drinking problem, and no mental illness,” said Tiffany Ann Aliano, a divorced mother, and Army veteran. Yet, without her knowledge and consent, on March 28 her only son was forcibly removed from school and delivered to her ex-husband, Joseph William Burks.

“My world suddenly got turned upside down,” said Aliano. She went from being a single, working mom, tucking her son into bed each night, to having supervised visitation for just three hours every two weeks, at the cost of $60 per hour, she said.

“We had a routine: Boy Scouts on Monday, Lazy Tuesdays, homework, play Legos, build things, cuddling or just hanging out together.” She said her mother-son bond has been reduced to bread crumbs for the senseless purpose of rewarding a man who mentally, physically and sexually abused her.

TiffanyAliano2

“I woke up one day and I was resting next to my son and my ex brought a stripper home and tried to make us all sleep together – he was high as can be,” she added. “Another time, he was having sex with a male neighbor, high on acid, cocaine, weed, you name it.”

Multiple Child Protective Services’ reports verify Burks’ repeated drug use, mental illness, domestic abuse, child abandonment, and his arrest and conviction records.

“I stayed with my abusive ex-husband for nine years; he beat me, raped me, would hold me down in my sleep and do his business,” said Aliano, who has a Bachelor’s Degree in marketing. “When I threatened to leave, he choked me until I passed out.”

In March 2013, while they were residing in Austin, she said she finally had the courage to leave him, and wound up returning to NY where she is originally from. In June 2013, she secured an Order of Protection against Burks from Nassau County Family Court.

Burks was ordered to stay away from her and their son, except for supervised visitation with a mental health professional. The NY court also ordered Burks to refrain from any communication by email, voice mail or other electronic means, except for matters concerning visitation or the health and welfare of the child. The court order said in part:

It is hereby ordered that Joseph William Burks… Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, forcible touching, intimidation, threats or any criminal offense against S.B. and Tiffany Ann Aliano.

In June of 2014, Aliano said she was contacted by the Family Court in Austin who advised that Burks wanted supervised visitation. “I allowed it.” Thereafter, she said the Guardian ad Litem assigned, Angela Hardin, contacted Aliano, via her attorney, and threatened to arrest her if she did not forfeit her son for a month before trial.

“I was beside myself,” said Aliano. “I initially said no, but my lawyer said I have to comply or face prison time even though there were no criminal charges lodged against me.” When Aliano went to TX to meet with the GAL in person, she said Hardin was more interested in whether she was a community activist, than be concerned with the loving way mom and son interacted.

Since the New York Protective Order was transferred to Texas, Burks’ conditions are still in effect, but have been completely ignored by the Texas Family Court, she said. “I told the GAL about the rape and she said if I reported it, I will lose my son forever.”

Hon. Timothy Sulak
Hon. Timothy Sulak

Aliano said she believes the court is retaliating against her for filing a recusal motion requesting that Hon. Timothy Sulak, presiding judge of the 353rd District Court in Travis County, be removed from her case and sanctioned for his actions.

“My recusal motion was denied and I was ordered to pay $15,000, despite the fact I had a mountain of evidence to show that the judge was involved in money laundering and other crimes,” she added. “I plan to file an appeal, and I have already motioned the court for a new trial.”

This is Family Court corruption at its worst, said Aliano. “My son and I want to be together again, but the system is keeping us apart.”

Posted in #OpExposeCPS, Abuse by AAL/GAL, Abuse by CPS, Abuse by Family Court Judges, Abuse by Public Defenders, Eyes on Texas | Tagged , | 2 Comments

This Article is a Couple Years Old


This article while a couple years old – lets us know that even the United States Court of Appeals for the Seventh Circuit believes the same thing that we as advocates for families have said all along. Our children are the sacrificial lambs not only for CPS and the courts -they are also sacrificial lambs for the doctors and pharmaceutical companies who make corporate profits off the drugs they give to the kids to keep them in line while in foster care and adoptive care. Like everything else the government sticks its fingers in – there is no oversight- the untrained- the greedy and the uncaring hand out pills like so much candy. When is the stupidity going to stop? When are folks going to wake up and understand we are losing our children to greed, corruption and stupidity?

 

August 28, 2013, the United States Court of Appeals for the Seventh Circuit issued an Opinion validating the approach set forth here.

The massive psychiatric drugging of America’s children, particularly poor, disadvantaged children & youth through Medicaid and in foster care is an unfolding public health catastrophe of massive proportions. This catastrophe is being caused by the fraudulent promotion of these harmful practices by pharmaceutical companies sacrificing children and youth’s health, futures and lives on the altar of corporate profits. The Fraudulent Scheme, as it pertains to Medicaid recipients, can be depicted as follows

http://psychrights.org/education/ModelQuiTam/ModelQuiTam.htm

Posted in Follow the Money | Tagged , , | 2 Comments

I was Asked to Share This


http://medicalkidnap.com/2015/11/08/north-carolina-child-medically-kidnapped-starving-to-death-in-foster-care/

North Carolina Child Medically Kidnapped Starving to Death in Foster Care

Malakai skinny

UPDATE 12/5/2015

From the Help Save Malakai Facebook page:

GOOD NEWS I JUST GOT A LETTER FROM JOHNSTON COUNTY CPS. THEY SAID THAT MY CONCERNS MEET THEIR REQUIREMENTS FOR DOING AN INVESTIGATION. NOW LET’S JUST HOPE THEY DO SO

Malakai letter

Grandmother Kimberly Deese explains that:

because the fosters had moved to another county and with the published story I sent to them, this county is doing a investigation when WAKE COUNTY would not because they were their fosters. Praise the Lord. I’m sending the new county where Malakai lives (Johnson County) a request for a home study and placement in my home, the new kinship laws and a letter, certified and signature on delivery.

She also reports that she received a call from Governor Pat McCrory’s office in response to her call for an investigation. Gov. McCrory is up for re-election. Kimberly is hopeful that the governor’s office will follow up and investigate her grandson’s deteriorating condition in foster care.

In another interesting development, Ms. Deese reports that she has learned that the social worker in her grandson’s case, Leeann Watson, is not a licensed social worker in the state of North Carolina. Kimberly has been in correspondence with the North Carolina Social Work and Licensure Board, and they stated that “Leann Watson is not licensed or certified by this board.”

Original story:

North Carolina Child Medically Kidnapped Starving to Death in Foster Care

by Health Impact News/MedicalKidnap.com Staff

A North Carolina grandmother is “horrified” at the condition of her 3 year old grandson Malakai. The deterioration in his health reportedly happened after Child Protective Services removed him from his family and placed him in foster care. She reports that he had previously been very healthy, with no medical problems. Now, the foster parents are collecting disability payments for him and he looks like he is starving. Kimberly Deese is fearful for her grandson’s life.

She and her daughter Heather Hill are frustrated with the level of corruption that they say they have encountered as they fight to get Malakai to safety. There appear to be some ethical violations in this case which allegedly began with a false accusation made in retaliation against Heather.

The family claims that no matter what hoops they jump through or what evidence they provide, Wake County CPS seems determined to sever all family connection to Malakai Deese and adopt him out. Heather’s parental rights have just been terminated, and CPS has made it clear that they refuse to consider placement of Malakai with his maternal grandmother, without basis, and in violation of both state and federal law. The family hopes to appeal, but they have only until December 4 to do so. Kimberly has recently appeared on The Captain’s blogtalk radio show and thePorthole to Justice show to tell her family’s story. They want help in their fight to fight to save this little boy.

Malakai in happier days before CPS

Ironically, grandmother Kimberly had just finalized her adoption of another grandchild only a month before Malakai was seized by CPS – in the same county. Yet, when it came to Malakai, the social worker refused to do a home study or consider placing the toddler with his grandmother.

 Young Mother Struggles, but Her Mother Has Always Been There for Her (It’s Called “Family”)

Heather has faced difficulties in her life, and as often happens in loving families, her mother has been there to step in and support her when needed. Malakai is Heather’s second-born child. When his older sister Nevaeh was born, Heather recognized that she was not dealing well with her post-partum depression. She has a learning disability, and has been on disability since childhood. She made the decision to sign over custody of her baby to her mother, who later adopted her. The adoption was finalized in Wake County on May 1, 2014.

Malakai Kimberly with Neveah

Malakai was born prematurely on May 21, 2012. Kimberly was with him from day 1. While Heather worked to get on her feet, Malakai stayed with his grandmother for his first year.

Heather fell in love with a young man, Quadir Hill. When she found that she was, once again, expecting, Kimberly encouraged them to get married. At that point, Malakai went to live with his mother and step-father. Quadir’s mother, Urika Hill, was reportedly opposed to the marriage, and seemed to dislike her daughter-in-law. Zechariah Hill was born on May 7, 2013.

The marriage did not go well. They separated, and Heather filed charges against Quadir for domestic violence, allegations which he denies. On April 15, 2014, Heather “won full custody, child support, and [a] one year protection order.”

The Nightmare Begins

The very next day after the ruling, Heather was to take Zechariah for visitation with his father. She told him and Urika that the baby had developed a rash on his upper thigh, and she gave them the creams she had been using to treat it. However, it did not look like a rash to Urika, who took him immediately to the hospital at WakeMed Garner Healthplex.

Doctors at WakeMed determined that it was, indeed, a thermal burn, and not a diaper rash. His records from April 16 note:

No signs of possible abuse and/or neglect were noted at the time of the assessment.

And:

There are no other marks or lesions concerning for abuse.

However, Urika Hill accused Heather of deliberately inflicting a burn on her grandson. A social worker was called in, and Heather was questioned. According to documents:

When questioned, the mother was unable to provide a credible explanation as to how it was sustained.

This was because, at the time, Heather had no idea what had happened. She genuinely believed that it was some type of diaper rash, perhaps a reaction to the chemicals in the disposable diaper. However, her family was quickly able to put the pieces together and figure out what had happened. They realized that Heather was completely innocent of any wrongdoing.

Simple Explanation – No One’s Fault – But Mother Arrested Anyway

Heather discovered what she thought was a rash a few days before, the morning after a family cookout. After she was accused of abuse, her sister remembered an incident where Zechariah was screaming at the cookout. Kimberly recounts that Tony, Heather’s current boyfriend, put Zechariah in a wagon to ride around the yard. He screamed and hollered. At the time, everyone present thought that he was just frightened, and Tony continued to ride him around in the wagon. When he didn’t stop crying, he stopped and took him out. No one thought anything further about it, because he stopped crying shortly thereafter.

Malakai - Zechariah in wagon

He got burned on the buckle of the wagon! Kimberly figured it out. Tony sat Zechariah on the wagon, and just where the burn is on his upper thigh was where the buckle was, because he didn’t buckle him in. It was a simple accident, and Heather was not even involved.

Malakai Zechariah burns

Mother Arrested Without Evidence, Later Freed

However, without conducting any type of investigation, police arrested Heather and charged her with misdemeanor child abuse. That charge was later changed to felony child abuse, after CPS took Zechariah to their own doctor, who said that the burn would leave a scar. (According to Kimberly, it didn’t.)

Kimberly and Heather took photographic evidence and the explanation of what happened to Heather’s criminal attorney. Kimberly says that the state recognized that they didn’t actually have a case, so they offered a plea deal instead. Heather was scared and didn’t think she could fight the system, even though she had nothing to do with the burn, so she accepted the plea bargain. The deal reduced the charge back to a misdemeanor, accusing her of failure to take Zechariah to the doctor for the burn, the burn that she had thought was simply a rash. She would not face jail, but probation.

Zechariah and Malakai Taken by CPS

However, none of the evidence or explanation of what actually happened would stop CPS from taking the 2 boys away from their mother and into state custody. CPS sent Zechariah to live with his father’s mother Urika Hill, where his father lives as well. But they sent Malakai to a foster home with strangers, since his father was not around.

Malakai happy and healthy before CPS

Interestingly, this means that Quadir Hill no longer has to pay child support for Zechariah.

Wake County CPS Refuses to Consider Heather’s Mother for Placement, in Violation of Federal Law

Even though Kimberly Deese had already played a huge role in little Malakai’s life, the social worker refused to consider placing Malakai with his maternal grandmother. Federal law says that social services must consider relatives and close family friends before placing a child in foster care. However, in Malakai’s case this was allegedly not done.

Kimberly believes that it is because she fought the system and argued her daughter’s innocence. Just one month before Malakai was taken, Kimberly’s adoption of Malakai’s older sister Nevaeh was completed – in the very same county.

Kimberly says she had already passed a background check, which revealed no criminal history, not even so much as a parking ticket. She had already passed a home evaluation in Wake County, and passed all the other requirements necessary to adopt a child through the same family court system that her grandsons were now in.

However, social worker Leeann Watson allegedly refused to do a home evaluation. According to a report from the GAL, Salvatore Quattrocchi:

Malakai’s grandmother would like him placed with her and is willing to have custody. However, based on concerns from WCHS [Wake County Human Services] and this GAL, [she] was not considered for custody.

According to Deese family advocate Amelia Duran:

The state has no position for rejecting placement with the grandmother.

In fact, North Carolina has recently passed its own state law, parts of which echo federal law requiring placement with a relative. Section 10(a1) of HB 669 states in part:

In placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile.

The GAL’s report states no reason that Kimberly should not have custody, other than his vague, unspecified “concerns.” Apparently, no such concerns came up when his same county was investigating her for the adoption of Neveah.

Additionally, Kimberly’s sister Tina has offered to care for Malakai; however, Kimberly reports that, when the judge asked if there were other relatives willing to care for Malakai, Heather’s court-appointed attorney James Hunt remained silent.

Previously Healthy Child Now on Disability in Foster Care

Kimberly and Heather report the Malakai was in perfect health when the state took him and placed him in foster care. Now they have learned that his foster parents get a disability check for him every month.

Kimberly accompanied her daughter on a visit to see Malakai on November 1, 2014. She had no idea it would be the last time she would see him.

I saw my grandson. I could not believe the deterioration in his health.

When social worker Leeann Watson left the room, Kimberly quickly pulled out her camera and asked her daughter to take Malakai’s shirt off, so they could take pictures. She broke down into tears as she described what happened next:

I was horrified at what I saw. I could see all the bones in his back and all the bones in his front. I felt helpless. I did not know what to do.

Malakai skin and bones photos

Kimberly demanded answers when Leeann came back in the room. Her response floored her:

She said it was only a growing spurt. I told her, “No, that was a lie.”

At that point, Kimberly was told that grandparents have no rights. She was escorted from the premises, and banned from seeing her grandson again, “just out of concerns.”

Malakai’s health has reportedly deteriorated even further since then. When Heather visited him recently, she said that he is skinnier and less active now than ever. He even has to wear leg braces now. The family believes that this has to be the result of malnutrition.

Malakai with mother and brother Aug 2015 visit

In August of this year, Leeann reportedly told another caseworker that Malakai was so skinny because he has hyperthyroidism. However, he was recently tested, and the test came back negative. So that’s not it.

Heather reports that many of her visits are scheduled at lunch time. She brings food, and she says Malakai always seems hungry. However, she also reports that Leeann has forbidden her to feed him more than a couple of teaspoons of food each visit.

Malakai gorging food report

Malakai has also come to visitation with bruises on his back. The family was told that Malakai falls a lot. They wonder why these injuries and his condition are allowed to go unchecked now that he is in foster care.

Kimberly says that she is fearful for her grandson’s very life:

I’m scared they’re going to push this so far that it might end up killing him in their effort to make him disabled.

Her words are chillingly similar to those of Leanna Smith, an Arizona mother whose children were medically kidnapped several years ago. In October, Leanna found her daughter’s story on a GoFundMe page. The foster parents were asking for money to get out to get her previously healthy child a liver transplant. See story:

Shocked Arizona Mother Finds GoFundMe Page for Medical Needs of Daughter Medically Kidnapped

How can it be that healthy children are taken away from loving families, and yet wind up disabled, starving, or in need of an organ transplant after Child “Protective” Services takes custody?

Police and CPS Refuse to Investigate

Kimberly has been pleading for someone to investigate what is happening to her grandson in foster care. She reports that she went to the police to file a report, but they told her they couldn’t help her, because she only has the foster parents’ names, not their address.

She asked Wake County Human Services, the agency that administrates Child Protective Services, to investigate. This was the response that she received:

Court Appointed Attorney Good Friends with Social Worker?

The Wake County social worker involved with Malakai’s case, Leeann Watson, and Heather’s court-appointed attorney James Hunt are reported to be close friends. Kimberly reports that she frequently sees them laughing together, and that Hunt told her from the beginning that they were “good friends.” Would this not present a conflict of interest? It appears to Heather and Kimberly that Hunt is more interested in serving the wishes of his social worker friend than the needs of his client.

Heather says that she has tried to fire Hunt as her attorney, but the judge denied her request. He has not, in the family’s opinion, fought for her at all, but has gone along with everything the social worker wants.

Grandmother Receives Threats

In September, Kimberly petitioned the court for custody of Malakai, but she says that the judge screamed at her for filing the wrong paperwork. She was devastated. She had filed the paperwork that the clerk had given her to file, but she believes that the clerk intentionally gave her the wrong forms, and she says that the social workers smiled and smirked at her in court.

Later that week, on September 25, Kimberly received an anonymous threatening phone call. The caller told her that they were in court that day and saw what happened:

The judge knows about you. You need to stop investigating Malakai’s placement and pursuing placement of him with you. Don’t you have other children?

Kimberly hung up, shocked, and frightened.

This wasn’t the first time she had been threatened since CPS came into their lives. Heather had another baby after her boys were taken. Shortly before Tony Jr. was born, Kimberly moved her family out of Wake County, into Harnett County. Leeann had been following the pregnancy, with every intention of seizing the new baby as soon as he was born. However, social workers in the new county investigated, and found no reason to take the new baby. When Leeann discovered they had moved, she was reportedly furious with them. She told Kimberly:

You’re going to regret this.

Since Tony Jr. was born, Heather has gotten into trouble with the law on unrelated charges, and will be in jail through January. She signed over custody of Tony Jr. to her mother. The social workers in Harnett County had no problem approving Kimberly and her home for custody of her newest grandson. They reportedly do not understand the vendetta that Wake County social worker Leeann Watson has against Kimberly Deese. Watson is allegedly furious that Kimberly has the baby in her care.

Grandmother Accused of Racism

Social worker Leeann Watson has allegedly played the race card in court, and has accused Kimberly Deese, who is white, of racism, and has made false allegations of her using racial slurs. Kimberly assured us that nothing could be further from the truth. All of Heather’s children are of mixed racial heritage. During numerous conversations with Health Impact News, it was very clear to us that Kimberly deeply loves her grandchildren. She is very concerned, especially for Malakai’s well-being. The fact that his father is African-American is irrelevant. Kimberly calls the racism charge “creative evidence” – CPS is making up things as they go.

How You Can Help

Heather’s parental rights were terminated on Wednesday, November 4. That hearing was not supposed to take place until the end of November. Heather only learned of the hearing that morning. They were blindsided and shocked. They have learned that the date was changed because the foster family wants to adopt Malakai – a little boy who already HAS a family who loves and wants him. Malakai’s biological father has been located and is reportedly stepping into the fray, so Malakai cannot be adopted quite yet.

The family has until December 4 to file an appeal. They are hoping that people will step in to help them to fight to save Malakai. They need a new attorney. They need help figuring out how to fight this, and how to report the ethics violations.

A Facebook page has been set up for supporters to follow their story and join them in fighting back.

Malakai Facebook page

The Governor of North Carolina is Pat McCrory. He may be reached at 919 814 2000, or contacted here. He is also on Facebook and Twitter.

Representative Duane Hill represents the district in Wake County. He may be reached at 919 733 5755, or contactedhere.

Chad Barefoot is the Senator for that district. He may be reached at 919 715 3036, or contacted here.

See Also:

Report Exposes Why Corrupt CPS Agencies Seldom Place Foster Children with Family Members

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New Things Are Coming


I personally have not posted on this site in a while. Life got in the way. A friend of mine has been minding the store and doing a great job. Thank you Jim Black. As of this date we are at 1,010,684 hits – that being said today I received five phone calls from parents of children that have been stolen Jackson Co Ga, Texas and Louisiana, the parents were in tears.

The facts are this, there is an epidemic of children being stolen by the state for profit. These parents that I spoke to today will be sending me their stories to be posted  on this blog. Those of you who have followed this blog know how far we have come – but we have more roads to travel before we are through. We have to continue this fight. One of my parents even sent her story to Washington to the Civil Rights Department and they refused to even read it. They told her to take it up with her state. This is wrong on so many levels. One mother had her son stolen when he was just a few weeks old in 1993- he was adopted out without her even knowing it. He is now in his 20’s – she is sending me what information she has so we can try to find him for her. All of these mothers are so broken. We cannot fix them but we can help support them. We can tell their stories and keep them in the face of the corruption.

So be prepared to read stories that will break your heart- Yvonne

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Foster Care Kills


Data for this was collected from Table 4-1 of Child Maltreatment reports produced by the Children’s bureau. Foster care population used in calculations were pulled from AFCARS.

Each day, within the United States, including the General Population and Foster Care, just over 4 children die due to child abuse or neglect. A statistic that is used to justify our Child Protection System. Sadly that statistic is not as clear as it needs to be.

The general population of children within the United States comes to 73.6 million. Of that about 401,000 are in foster care. In 2013, there was just over 1,200 child fatalities in the general population and just under 300 in foster care. By subtracting the number in foster care from the general population… dividing that into the Gen Pop Fatalities and multiplying by 100,000 to obtain the fatality rate of 1.66 / 100k children in general population. Doing the same for foster care reveals a fatality rate of 66.59 / 100k. Dividing the Foster Care Rate by Gen Pop rate reveals ratio of 40.05:1 likelihood of a child dying in foster care over leaving them in the home.

Two Where Protected Failed

Laila Marie Daniel – STOCKBRIDGE, GA

Over the last few days the story of Laila Marie Daniel has been surfacing. On November 17th, authorities were called to the home of caregivers Joseph and Jennifer Rosenbaum for an injury of a 2yr old child which subsequently took the child’s life. Just a few weeks earlier Laila has suffered a broken leg under questionable circumstances.

The warrant affidavit indicated the Rosenbaums deprived Laila of “necessary sustenance to the extent that the child’s health or well-being was jeopardized, by failing to feed the child in quantities necessary to sustain an adequate body weight.” Bruising was also found on the girl’s neck, face, abdomen and legs. She also had broken bones in her arms and legs. Her sister had similar injuries.

Laila and her 4yr old sister had been removed from their mother some months back over their mother’s alleged drug use. They had been at the Rosenbaums for about 5 months. It is unclear how long they had in the temporary custody of the state but there were indications she had been in multiple placements.

It was also revealed that Jennifer and Laila’s mom had been foster children together. That was the reason this placement was chosen. Tessa (the mother) had recently become concerned over the placement having called DFCS wasn’t listening; claiming she was calling too often.

Alexandria Hill – Rockdale, TX

On July 29, 2013 the parents of Alexandria Hill were alerted that they had to rush to the hospital because their child was in a comma. When they arrived they found Alex on life support. Alex passed away 3 days later when they pulled the plug.

This case too was on where the parents were alleged to have smoked Marijuana after Alex went to bed at night. They had been working services and were due to get her back in November.

The caregiver Sherill Small claimed that Alex had been running backwards and fell. Doctors said she had brain hemorrhaging and retinal hemorrhaging in both eyes. Small later told police that she has shaken the girl and accidentally

let her go. She was arrested on Aug. 1. In November of 2014, Small was sentenced to “Life in Prison without parole” over Alex’s murder.

The child placement agency, Texas Mentors, which had placed Alex in the Small home was found to have not conducted proper background checks before placing her there.

Others

While searching for some of the early stories on Alex Hill I Googled: “death of 2 year old foster child under investigation” and found 3 more cases I had not heard of showing you just how bad this situation is.

For Profit Foster Care under Investigation

In April of this year, National Mentors came under heavy scrutiny over how it operated its “Fostering For Profit” enterprise. Soon after the BuzzFeed.com article come out it was announced that this $1.8 billion enterprise was being investigated by the Senate Finance Committee. It was reported that the company had withdrawn their foster care services in in Maryland and Texas, Illinois, and Massachusetts.

And This Is Where the Problem Lays

Money seems to be the driving force over actual child safety.

Yes any and everybody have their hand out to get their share of the $7.9 billion in federal funds allocated for Child Protection. This includes courts, judges, attorneys, foster care providers, therapists, drug & alcohol testers, psychologists and so forth. The list of agencies with their hand out is quite long.

While many think that the states make money off of this system and it is true they are reimbursed about 45-52% on money spent, but that money is rolled back into the system. Therefore there is no true profit.

Now that does not mean placing a child into foster care does not create revenue streams. A family for which no one within draws child support can be flipped to where they must now pay allowing courts to now collect Social Security Title IV-D funds. Children formally not on Medicaid are placed on it and sent to providers thereby generating additional revenue.

The Feds Created a Monster

This seemed to begin with a series of Federal acts mandating child protection beginning in 1973, when U.S. Senator Walter Mondale wrote, “Nowhere in the Federal Government could we find one official assigned full time to the prevention, identification and treatment of child abuse and neglect.” Through Mondale’s efforts the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) solidifying the Federal government’s role in child protection. And in 1978, Congress enacted the Indian Child Welfare Act (ICWA) to establish standards for dealing with Native American children.

By the late 1970s, the number of children in long term foster care was rising at an alarming rate resulting in Congress passing of the Adoption Assistance and Child Welfare Act of 1980 (AACWA) which required states to make “reasonable efforts” to avoid removal of children along with requiring the same efforts for reunifications. This Act created the “permanency plan” to move toward either returning the child or termination of parental rights. For children that could not return home Congress provided financial incentives for adoption, along with stipends for adoptive parents who adopted children with special needs. During this time emphasis was still around “Family Preservation“.

By the end of the 1990s, foster care was over capacity. Judges and caseworkers were allowing children to linger in foster care for far too longer time. This was also the period where the United Nations Convention on the Rights of the Child (UN-CRC) came into existence and was ratified by every country with the exception of the United States. The key component of the convention replaced Parental rights with “the best interests of the child” which is defined, ultimately, by an international committee of 18 people in Switzerland. While the United States did not ever ratify this treaty many aspects of the convention began showing up in our laws. Much of the UNCRC mindset was reflected in the Adoption and Safe Families Act Of 1997 (ASFA).

One of the chief authors of ASFA, Richard Gelles said in a 1997 PBS interview:

“We’ve done such a poor job of protecting the children at the highest risk, we’re going to focus our energies on them. We’ll have to accept the fact that we’re going to sweep in on families who we in the past wouldn’t have involved. We’re going to terminate parental rights in the past we wouldn’t have terminated. We’re going to remove children from a home that in the past we wouldn’t have. And that is the price-tag for child safety.”

As a result of these federal acts we are seeing a system that funded upside down. More money is spent to remove children than to keep them home with the family. In this funding chart we see the ratio of funding used to break up the family compared to that keeping the child at home. The chart is proportional showing less than 10% is used for prevention.

Now, twenty years later we see that this philosophy is killing children. Let alone they are violating the parents right to raise their children along with violating the child’s right to be raised by family.

But Family Law Is Actually A State Issue Not Federal

Acknowledging that in most instances Child Protection issues fall upon the states because as early as 1888, SCOTUS stated that the states had jurisdiction over the family endorsing state regulation of family laws, including marriage, divorce, childrearing and inheritance with Maynard v. Hill 125 US. 190, (1888). Later they also quantified that Congress may not simply commandeer the legislative and regulatory processes of the states in New York v. United States, 505 U.S. 144 (1992).

Some Case Law

Our State Appellate and Federal District Courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.

Parent interest is of “the highest order,” and the court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason v. Scan Volunteer Services, Inc. (8th Cir. 1996)

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985)

Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886)

A parent’s right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489

A child has a constitutionally protected interest in the companionship and society of his or her parent. Ward v. San Jose (9th Cir. 1992)

Children have standing to sue for their removal after they reach the age of majority. Children have a constitutional right to live with their parents without government interference. Brokaw v. Mercer County, (7th Cir 2000)

No one has the right to violate these rights which too have been addressed by SCOTUS.

Child’s four-month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. Brokaw v. Mercer County, (7th Cir 2000)

When the state places a child into state-regulated foster care, the state has duties and the failure to perform such duties may create liability under §1983. Liability may attach when the state has taken custody of a child, regardless of whether the child came to stay with a family on his own which was not an officially approved foster family. Nicini v. Morra (3rd Cir. 2000)

This extends to the courts also.

The US Supreme Court states: “Any judge who does not comply with his oath to the Constitution of the United States, wars against that Constitution and engages in violation of the Supreme Law of the Land.” In re Sawyer, 124 U.S. 200 (1888)

“No man in this country is so high that he is above the law. NO officer of the law may set that law in defiance with impunity. All the officers of the government….are bound to obey it.” Butz V. Economou, 98 S.CT. 2894 (1978)’; Unites States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).

Conclusion

Recognizing these issues it is not very difficult to see why there must be foster care reform. We must get our child protections system away from the “Snatch the kid and run!” mentality. We drastically need awareness. With less than 3% of the US population having been effected by this broken it still will come to over $2.2 million children.

Posted in #OpExposeCPS, 1st Amendment, 4th Amendment, Abuse, Abuse by CPS | 4 Comments

THE GATES CASE: WHAT IT MEANS FOR CHILD PROTECTIVE SERVICES



Gates v. the Texas Department of Family and Protective Services (DFPS)

In July 2008, the United States Court of Appeal for the Fifth Circuit published a decision in the case of Gates v. the Texas Department of Family and Protective Services (DFPS). About a year later, on June 26, 2009, CPPP policy analyst Jane Burstain wrote her analysis of this very important court decision. Ms. Burstain served CPPP for a number of years and now is the Sr. Policy Analyst for DFPS. Links to her original article is below along with the Memo sent to all DFPS employees on August 22, 2008.

Read Full Article >>  

DFPS Memo August 22, 2008


June 26, 2009    Contact: Jane Burstain, burstain@cppp.org    No. 09-409

THE GATES CASE:

WHAT IT MEANS FOR CHILD PROTECTIVE SERVICES

In July 2008, the United States Court of Appeal for the Fifth Circuit published a decision in the case of Gates v. the Texas Department of Family and Protective Services (DFPS).
The Fifth Circuit set guidelines under the Fourth Amendment of the United States Constitution for state caseworkers to follow in making investigation and removal decisions in child protection cases. This policy page discusses what Gates means for caseworkers in the field, explores its impact on Child Protective Services (CPS), and makes recommendations about what the state and CPS need to do next.

Investigations and Immunity after Gates

Like peace officers in criminal cases, CPS caseworkers in civil cases must often make difficult, on-the-spot decisions during a child abuse investigation. When they do, they face being sued by a parent claiming the decision was wrong and violated the parent’s rights under state or federal law. To ensure that caseworkers are not afraid to make the hard judgment calls necessary to keep children safe, however, the law generally protects caseworkers sued in connection with their jobs.

Specifically, if a caseworker’s actions meet certain criteria, the parent cannot get money from the caseworker even if a court later finds that the caseworker made the wrong decision about an investigation or removal. As stated in the case of Austin v. Hale:

The problem is apparent in the area of child abuse where the investigator is required to make a decision that, in all likelihood, is going to be viewed by someone as improvident, no matter what the decision is. When making this delicate decision, a child abuse investigator should not have to worry about his own potential liability as long as he acts within his authority and in good faith.

State law refers to this protection as official immunity, while federal law calls it qualified immunity.

Official Immunity under State Law

Gates did not address or change Texas law regarding caseworker protections. If a parent makes a claim against CPS caseworkers under state law because of an investigation or removal decision, caseworkers are protected if they acted in good faith.
The test for good faith is whether a reasonably prudent caseworker, under the same or similar circumstances, could have believed they needed to act in the same way. It is an objective test and is not based on the caseworker’s actual intent. But to meet the standard, the caseworker does not have to prove that all reasonably prudent caseworkers would have acted the same but, rather, that at least one reasonably prudent caseworker would have done so.

Qualified Immunity under Federal Law

For any claims under federal law, a caseworker is entitled to qualified immunity unless all of the following are true:

  • Taken in the light most favorable to the parent, the alleged facts show that the caseworker’s conduct violated statutory or constitutional law;
  • The law was clearly established at the time of the caseworker’s actions; and
  • The caseworker’s conduct was objectively unreasonable in light of the established law.

The objectively unreasonable test is similar to the good faith test under Texas law. It is not based on what the caseworker actually believed but on whether a reasonably competent caseworker could have believed that there was a need for the action.

Applying these standards, the Fifth Circuit in Gates found that the caseworkers were entitled to qualified immunity even though the court disagreed with some of their decisions. The Fifth Circuit made the ruling because the law under the Fourth and Fourteenth Amendments of the United States Constitution
on how to investigate and remove a child in a child abuse case was not clearly established.

Exigent Circumstances under Gates

Even before Gates, it was generally accepted that the Fourth Amendment applied in CPS cases. Exactly how it applied, however, was not clear. To clarify the federal law, the Fifth Circuit in Gates established guidelines that caseworkers must follow when investigating or removing a child in a child abuse or neglect case. To enter or remain in a private home, transport a child for an interview, or remove a child from a parent’s custody, a caseworker must have consent, a court order, or exigent circumstances. In general, this is not a significant departure from the Texas Family Code or CPS policy before Gates. But in practice, the Gates definition of exigent circumstances may be stricter than what caseworkers were using before Gates. Additionally, the Fifth Circuit clarified that the definition of exigent circumstances varies depending on what the caseworker is doing.

Entering and Remaining in a Private Home

Under Gates, for the purposes of entering or remaining in a private home, exigent circumstances exist when a child is in immediate danger. In Gates, the Fifth Circuit found there was no immediate danger to the children when the caseworker entered the home. The alleged abuser was not at home, and the stated purpose for entering was to interview the children rather than to immediately protect them. With respect to remaining in the home, to make the exigent circumstances determination, a caseworker can use any information gained after entry into the home including any interviews with the children or any physical evidence observed in the home.

Removing Children from School to Interview Them at another Location

Under Gates, to remove a child from a public school for an interview absent a court order or consent, a caseworker must have a reasonable belief that the child was abused and probably will be abused again if they go home at the end of the school day. Although not controlling, the child’s express desires about being transported are also a factor to consider.

An anonymous tip, absent some showing that it is reliable, is insufficient to justify removal for an interview. Instead, the tip must be corroborated through a preliminary investigation that can include an interview of the child’s teachers or peers or an interview of the child at the school or by looking for injuries on the child without removing any clothing (e.g., on the face or hands).

Removing Children from Parents’ Custody

For the purposes of removing a child, the Fifth Circuit in Gates explained that exigent circumstances exist when there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if they remain in the parent’s custody. In making this determination, no one factor is dispositive. Instead, a caseworker must take into account all of the circumstances including:

  • Whether there is time to get a court order;
  • The nature of the abuse (its severity, duration and frequency);
  • The strength of the evidence supporting the abuse allegations;
  • The risk that the parent will flee with the child;
  • Whether    less    extreme    alternatives    are available; and
  • Possible harm to the child if removed.

In Gates, the Fifth Circuit found that the removal was justified because there was evidence of wounds on one child, several of the children corroborated that the father recently punched, kicked and hit several of the children and there was no time to get a court order before the courts closed for the day. If sufficient grounds to remove a child from a parent’s custody exist but the child is currently located somewhere else (e.g., at school), the child can still be removed.

Since Gates, Caseworkers Are Using Child Advocacy Centers Less Frequently.

Texas created Child Advocacy Centers (CACs) to facilitate child abuse investigations. A CAC has child-friendly, non-institutional facilities designed to put a child at ease and facilitate any necessary interviews. Various agencies (e.g., law enforcement and CPS) also coordinate their efforts through the CAC to reduce the number of times a child is interviewed. In practice, it appears that before Gates, absent an express parental objection, caseworkers often transported children from school to a CAC for an interview without a court order.

In Gates, however, the Fifth Circuit stated that to remove a child from a public school for an interview without consent or a court order, a caseworker must have a reasonable belief that the child has been abused and probably will be abused again when going home at the end of the school day. In a DFPS memorandum to caseworkers regarding Gates, it adopted this policy.

As illustrated in the chart below, after DFPS issued its memo, the proportion of children interviewed at CACs dropped noticeably.

Presumably, this means that caseworkers are conducting more interviews at the school or at the child’s home. But a child may not feel as comfortable disclosing abuse in a school or home setting, which is one reason why CACs were created. As a result, children may be denying allegations when a problem actually exists.


Since Gates, Caseworkers Are Ruling Out Abuse and Neglect in a Larger Proportion of Cases.

After an investigation, CPS is required to determine by a preponderance of the evidence whether each allegation made in the case is:

  • Reason to believe (abuse or neglect has occurred);
  • Ruled out (abuse or neglect has not occurred);
  • Moved (before staff could draw a conclusion, the persons involved in the allegation moved and could not be located); or
  • Unable-to-determine (none of the above dispositions is appropriate).

The proportion of cases with a ruled out designation increased after DFPS released its memo regarding Gates.

The exact reason for this trend is unclear but given the timing, it seems likely that it is related to Gates. It may be that, after Gates, caseworkers became more cautious about giving a “reason to believe” determination. Or it may be that restrictions on transporting children to a CAC for an interview made it more difficult to elicit evidence to support a “reason to believe” designation. If so, one might expect a higher proportion of “unable to determine” designations. But, in fact, looking the chart below that did not happen. It may be that caseworkers are reticent to use an “unable to determine” designation feeling it indicates an inability do their job. So instead, they may have designated these cases as “ruled out.”

The distinction between designating a case as “unable to determine” and “ruled out” is important. With a “ruled out” designation, the alleged perpetrators can require CPS to remove from its records all information about their alleged role in the abuse or neglect.
This option is not available with an “unable to determine” designation. If caseworkers are designating cases as “ruled out” when they really should get a “reason to believe” or “unable to determine” designation, CPS records may be affected, inhibiting it from fully evaluating any future reports of abuse.


Since Gates, a Smaller Proportion of Cases Have Been Opened for Services

The investigative designation does not itself determine whether a case is opened for services.    That decision is based on an assessment of whether the child is at risk of harm.
But in practice, the designation does matter as very few “ruled out” cases are opened for services. Even after Gates, less than 3 percent of “ruled out” cases were opened.
As a result, the increase in “ruled out” cases means that overall, fewer cases were opened for services.

Since Gates, Caseworkers Are Removing Children Less Often

Removals have dropped significantly since Gates. In August 2008, 25 percent of cases opened for services involved placing a child out-of-the home in substitute care and by January 2009, only 18 percent of opened cases involved substitute care.

As the graph above shows, part of the decline in removals is from a recent trend towards keeping more children in their homes as part of CPS’ reform efforts. But given the sharp decline right after the DFPS memo, it is likely that part of the recent decline is also due to both the official practice changes in the DFPS memo and caseworkers’ unofficial interpretation and implementation of those practice changes.


CPS’ New Policies Are More Restrictive than Gates

Without consent or a court order, the Gates court held that “immediate” danger to a child is required to enter and remain in a private home for investigative purposes, while “imminent” danger is required to remove a child from a parent’s custody. Neither term was defined in the Gates decision, but the use of two different terms indicates that they should be used distinctly rather than interchangeably. In fact, the law draws a distinction between the two. Black’s Law Dictionary defines “immediate” as: “Present; at once; without delay; not deferred by any interval of time.” Black’s defines “imminent” as: “Near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” Simply put: immediate is closer in time to the danger than imminent.

Although Gates only requires imminent danger for removal without consent or a court order, the Texas Family Code requires immediate danger, at least with respect to a child’s physical health or safety.
In this case, the Texas law is more restrictive and so is the prevailing standard.

But under the Texas Family Code, there is no need for immediate danger with respect to a removal for alleged sexual abuse. Instead, there only need be evidence that sexual abuse has occurred.
In this case, the Texas law is more permissive than Gates and so Gates, as constitutional law, is the prevailing standard.

In short, after Gates, immediate danger is required for a removal without a court order or consent when there is a threat to a child’s physical health or safety but danger need only be imminent for removal with an allegation of sexual abuse. The CPS policy adopted in response to Gates, however, collapses the two standards stating that imminent means immediate.
CPS chose this approach to avoid confusing caseworkers who may not understand the legal distinction between the two terms. But avoiding caseworker confusion should be weighed against the potential harm of delay in removing a child who may be sexually abused. Under CPS policy, without consent or a court order, a caseworker has to wait until the threat of sexual abuse is immediate before removing a child while Gates only requires that the threat be imminent.

CPS policy is also stricter than Gates with respect to a visual examination of a child. The Gates court explicitly stated a caseworker could inspect a child for injuries “that can be seen without the removal of the child’s clothing” even without consent, a court order, or exigent circumstances. Indeed, the Fifth Circuit expressly acknowledged that such visual examination is a necessary part of the preliminary investigation to justify subsequent transportation for an interview. Although the new CPS policy in one section of the CPS manual adopts this same standard,
in another section the policy provides that a visual examination can only be conducted with a court order or consent.    As a result of the conflicting provisions, caseworkers may be confused and failing to conduct proper visual examinations of children.

Caseworkers Should Do Their Job without Fear of Personally Liability

Just like peace officers in criminal cases, CPS caseworkers in civil cases deal with people who may be disgruntled and who may sue. That risk comes with the job. Fortunately, it is not a big risk. Even if a caseworker is sued after Gates, it is unlikely that they will lose any money. First, the state attorney general will defend them at no cost.
Second, even if a parent wins the case (i.e., the parent establishes that the caseworker violated a clearly established law and that the caseworker did not act in good faith), the state generally will pay any monetary judgment against the caseworker
up to $100,000 as long as they did not act in bad faith.
(Failing to act in good faith is not the same as acting in bad faith.) In short, caseworkers should not fear litigation.

Courts Must Develop a Process for CPS to Obtain Orders in Aid Investigations

No clear process exists to obtain orders in aid of an investigation. The only standard is “good cause shown.”
This lack of specificity has not been a big problem in the past as CPS rarely pursued such orders. But Gates will likely change CPS practice and increase requests for investigative orders. Clear standards and an efficient process for requesting orders are necessary to protect children and to observe parental rights. To meet these needs, the 81st
legislature passed SB 1440,
but the governor vetoed it.

Consequently, state judges must now use the framework of current law to address these issues. To do so, the judiciary must answer five questions:

  • What does “good cause” mean?
  • Can CPS merely apply for an order in aid of investigation or must it file a suit affecting the parent-child relationship?
  • How does CPS establish a record of “good cause”?
  • When should an order be issued without giving the parent prior notice and a hearing?
  • How can the court meet the need for emergency access?

Good Cause Means Probable Cause

On the one hand, whether “good cause” ever means more than probable cause under the Fourth Amendment, it must at least include probable cause because state law must conform to the U.S. Constitution. On the other hand, it is hard to imagine a case where a judge would find probable cause in a child abuse case but refuse an order in aid of investigation. Good cause is therefore probably synonymous with probable cause.

What is probable cause under the Fourth Amendment? Answering that question is beyond the scope of this paper, though a few general observations are important. While an extensive body of law exists regarding probable cause in a criminal context, it is not necessarily directly applicable in a civil child protection context. As the Fifth Circuit acknowledged in Gates, Fourth Amendment considerations in a CPS case differ from those in criminal case because “the courts are dealing with a child who likely resides in the same house as, and is under the control of, the alleged abuser.” Moreover, the interests of CPS and the child may actually be aligned as the child may need protection. As a result, the constitutional standards for an investigative order in a CPS case may differ from those for a search warrant in a criminal case. In other words, what is “reasonable” under the Fourth Amendment varies depending upon the context. For example, CPS does not need to allege that a crime has been committed; CPS need only show abuse or neglect as defined in the Texas Family Code.

Courts Should Require Only an Application, Not a Suit Affecting the Parent-Child Relationship

Texas Family Code § 261.303 requires only an application that establishes good cause to secure an investigative order, not a suit affecting the parent-child relationship. Indeed, requiring a formal suit affecting the parent-child relationship for an investigative order would be inappropriate and does parents no favor. At the time it applies for the order, CPS will not have completed its investigation and so cannot know whether a formal suit is warranted.

Courts Should Require an Affidavit to Support the Application

Somehow CPS must establish “good cause” as part of the record supporting its application. Courts should follow the procedure used in obtaining a criminal search warrant and require CPS submit a written statement signed under penalty of perjury with the facts establishing good cause.

Giving a Parent Prior Notice and a Hearing Should Depend Upon the Circumstances Criminal search warrants are routinely issued ex parte, meaning the suspect is not given prior notice and an opportunity to be heard. The reason for this is obvious. If a suspect were given advance warning of a warrant, he would have the opportunity to destroy evidence or flee the jurisdiction.

For the same reasons, CPS needs the ability to obtain an ex parte investigative order. For example, if a parent had prior notice that CPS wanted to interview their child about alleged abuse, they would have the opportunity to coerce the child into recanting or refusing to cooperate.

Ex parte orders are routinely used in other contexts in family law. CPS can obtain an order to remove a child without giving the parent prior notice and an opportunity to be heard.
Ex parte orders are also issued in cases of family violence
and in divorce cases for the safety and welfare of the child.

But that does not mean that every circumstance in a child abuse or neglect investigation requires an ex parte order. For example, CPS may want to obtain copies of a child’s medical records. Because a neutral third party keeps those records (e.g. the doctor), a parent would not have an opportunity to destroy the records if given notice. In that case, giving the parent notice and an opportunity to be heard may be appropriate, as long as it does not compromise the child’s safety.

A Judge Should Be Available When Needed Just like a criminal search warrant, the need for an order in aid of an investigation may arise at any time. As a result, each jurisdiction should develop a plan to make someone available whenever needed.

Recommendations

1. Closely track data regarding children’s safety.

The important issue is not the number of removals, CAC interviews, or ruled out designations, but the effect of these changes on children and families. To the extent that children remain safe in their parents’ home and receive appropriate supervision and services, the changes are not a problem. But if children are being left in unsafe situations or families are not receiving the services they need, CPS needs to make adjustments.

If children were being left in unsafe situations, one would expect an increase in the proportion of in-home cases that fail, meaning that the child is subsequently removed and placed in DFPS custody. So far, as illustrated in the chart below, there is no evidence that this is happening.

But it may be too soon to detect any real trends or it may be that the Gates decision is affecting removals for in-home cases as well. It is a measure that CPS should continue to track.

If families who need services are not receiving them, one would expect an increase in repeated child abuse and neglect referrals.
It is too soon, however, to detect such a trend. But it is something that CPS should track, keeping in mind that it may be like finding a needle in a haystack, so that the absence of repeated referrals does not necessarily mean that children are safe.

  • Start tracking “voluntary” placements.

If caseworkers are reticent to formally remove a child because of Gates, they may be using “voluntary” placements instead. A voluntary placement does not constitute a removal because, in response to a child abuse investigation, the parent “chooses” to have the child live with a relative or other designated caretaker.

CPS does not currently track any information regarding voluntary placements. As a result, there is no way to determine if their use increased after Gates.

CPS needs to develop ways to track such placements because if their use is increasing after Gates, children may be at risk. There is no financial assistance to support the voluntary placements and the relative often has no legal authority to take care of the child (e.g., enroll the child in school or obtain medical treatment).
As a result, these placements may be unstable and ultimately result in a formal removal or, worse, in the relative simply returning the child to the offending parent.

Moreover, there is no court oversight of these placements and neither the parents nor the children have attorneys to protect their rights.

  • Investigate the reasons for the increased proportion of ruled out cases.

It is unclear exactly why abuse and neglect is being ruled out in a larger proportion of cases, but the timing of the change suggests that it is related to Gates. Given the potential problems discussed above (e.g., expunging of CPS records and fewer families receiving services), CPS needs to investigate this recent trend and make any necessary changes to ensure that cases are receiving a proper investigative designation.

  • Train caseworkers regarding the protections from personal liability.

To ensure that caseworkers are not making decisions based on fears of personal liability, CPS should include in its caseworker training information regarding the various ways they are protected from personal liability.

  • Look at conforming CPS policy to Gates.

Current CPS policy applies a stricter standard for removals in sexual abuse cases than Gates requires. Although there are legitimate practice concerns supporting this policy decision, CPS should carefully consider possible unintended consequences.

CPS should also clarify that a caseworker can conduct a visual inspection of a child without removing the child’s clothes even without a court order, consent or exigent circumstances.

  • Courts must develop a process for CPS to obtain court orders to support investigations and removals.

Courts must CPS and the courts need to work together to ensure that CPS has prompt access to the orders it needs to effectively investigate child abuse and neglect and that the processes are consistently applied in conformity with the Fourth Amendment.

  • Explore ways to make in-school interviews better.

As a result of Gates, it is likely that more interviews will need to be conducted at the child’s school. CPS needs to train its workers on how to interview a child in this environment. It also needs to explore creating a CAC-like environment at the school or developing a mobile CAC using modern technology.

Conclusion

Gates appears to have impacted CPS practice with respect to removals and investigations. Use of CACs as an investigative resource has declined, abuse and neglect is being ruled out in a larger proportion of cases, fewer cases are opened for services and removals have dropped. At this point, however, it is too soon to determine the effect, if any, of these changes on families and children.

It is also too soon to determine whether the changes represent a temporary overreaction or a permanent transformation. Conducting an investigation or removing a child based on exigent circumstances may now be less frequent. If so, CPS must use court orders in support of more of its investigations and removals. It will take time to develop consistent policies and procedures for such court access and training and practice for caseworkers and judges to become comfortable with using them. Once the process is in place, however, and the use of the process has become ingrained in the culture and practice of CPS and the courts, removals and investigations may return to pre- Gates levels.

In the meantime, CPS needs to closely monitor data regarding children’s safety to ensure that the changes, even if temporary, are not placing children at risk of harm.


This policy page was underwritten in part through funding by Casey Family Programs, whose mission is to provide and improve—and ultimately to prevent the need for— foster care. Established by UPS Founder Jim Casey in 1966, the foundation provides direct services and promotes advances in child welfare practice and policy. To learn more, visit www.casey.org. The opinions expressed in this policy brief, however, are those of the Center for Public Policy Priorities and do not necessarily reflect the views of Casey Family Programs.


To learn more, sign up for e-mails, or make a donation, go to www.cppp.org.

The Center for Public Policy Priorities is a nonpartisan, nonprofit policy institute committed to improving public policies to better the economic and social conditions of low- and moderate-income Texans.

Posted in #OpExposeCPS, - by CPS, 4th Amendment, Texas DFPS, Uncategorized | 3 Comments
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