October 10th, 2012 by Robert Franklin, Esq.
Here’s one of those online legal advice sites that are usually all but worthless due to the fact that the person with the question doesn’t know what details are legally important, so the answers are all contingent on facts unknown (AVVO, 2009). The same is true of the linked-to piece, but it certainly contains some pithy information. Here’s the question:
I received a call from CPS about an incident that happened between my ex-girlfriend and her 16 yr. old son. I had no knowledge of the incident and was told that my 2 year old daughter has been temporarily placed with my ex’s sister. I have asked if I can take custody of my daughter while there is an ongoing investigation about the incident. CPS told me that custody is left up to the mother to decide because we have no court ordered visitation in place. Is there any hope to gain temporary custody of my daughter?
That’s right, according to Child Protective Services in Texas, when a child is taken from an unmarried mother due to abuse or neglect, with whom the child is placed is up to her! That is, if there’s a relative or the father or someone else known to the child, abusive Mom gets to choose. Of course if there’s no one like that available, the child goes into foster care, but otherwise, CPS relies on Mom. Does it occur to them that, if the mother is a bad enough parent to have her child taken from her in the first place, then maybe she’s not the best person to rely on for a reference? It looks like the answer is “no.”
Then there’s the concept that the father is the father irrespective of whether he has a court order. That too seems to escape CPS. The United States Supreme Court has said time and again that a parent has parental rights up until the time the state adjudicates him/her to be unfit. But, like so many other legal inconveniences, CPS cheerfully ignores that. Clearly, if a child is taken from a parent, the other parent must by law be the first fall-back option for child welfare agencies. If the second parent appears to be unfit or to present a risk of harm to the child, then CPS can go to Plan C, D, etc. As a matter of fact, that’s the law in the Ninth Circuit of the United States. There, failure to contact the father when a child is taken from its mother constitutes a violation of the father’s civil rights and is actionable under 28 U.S.C. 1983, et seq. But in Texas, it’s just how things are done.
And for the umpteenth time, the mother is placed firmly in charge of the father’s rights and relationship to his child. That the mother in CPS cases is necessarily suspect as a parent makes the matter more egregious than it is in cases of more responsible mothers, but beyond that, CPS’s practice is all of a piece with other laws and practices, like adoption, in which Dad’s rights are in Mom’s hands.
Then we come to the equally-telling answer by a Houston family attorney:
If there is no Order in place I’m surprised you even heard from CPS.
Yep, that’s about par for the course. It’s illegal in the Ninth Circuit and should be everywhere, but why should that deter CPS? The guy’s lucky they even contacted him. Amazing.