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.
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*
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.