September 4, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Things aren’t getting any better for Texas Child Protective Services. By now, the litany of dysfunction and flailing by the agency has grown too long to recount. For years now, Texas CPS has been plagued by revelations of incompetence and cupidity with each bit of news more outrageous than the last. But a fair summary would include several key facts. The first is stratospheric caseworker turnover that, when we last heard ran to over 25% per annum. Another is the fact that those caseworkers receive pay that’s among the worst of any in the country. And let’s not forget caseloads for those employees that far exceed industry standards.
Is it any wonder that children die at the hands of their caregivers often right under the nose of CPS?
So how did CPS respond to that crisis? Instead of increasing pay and reducing caseloads in order to (a) provide better service and (b) retain personnel, it did the opposite. It announced earlier this year that it would drastically lower employment standards. Now, applicants with no more with a high school diploma may be hired as caseworkers.
Then there’s the catastrophic lack of qualified foster homes for kids taken from their parents due to abuse or neglect. Governor Greg Abbott jumped into that mess and made it worse back in January of 2015 when he sharply restricted CPS’s ability to place kids temporarily with relatives. Abused and neglected children had to go somewhere, so they ended up in office buildings and mental institutions.
With all that going on, CPS top management discovered they were needed elsewhere and began to quit the agency. So naturally, Abbott appointed as new CPS director a man with no experience in children’s welfare, former head of the Texas Rangers (the law enforcement agency, not the baseball team), Hank Whitman. As I reported here, Whitman has little idea of how to improve the agency. The good news is that he plans to ask the legislature for more money. That of course is absolutely necessary. CPS has been trying for years to do the job of protecting Texas’ children with too few resources. Whitman won’t be able to perform any better than his predecessors without a significant bump in his budget.
But beyond that, he hasn’t a clue about how to employ more caseworkers or increase foster care facilities. He’s also in the dark about how to deal with the mandates of the two special masters appointed by Federal Judge Janis Jack to try to fix his agency. To put it mildly, Whitman’s between a rock and a hard place. He’s head of the agency, but if his reforms conflict with the recommendations of the special masters, the State of Texas will be toe to toe with a federal judge who’s already ruled that CPS is “broken” and in violation of children’s civil rights. Jack can issue more orders in the case any time. That federal/state conflict could mean years of uncertainty and mixed signals for an agency that is already beyond the pale.
From where I stand, Whitman looks to be out of his depth. His interview with the Texas Tribune can fairly be described as smoke and mirrors. Still, we’ll have to wait and see.
While we’re waiting, one of Whitman’s strategies has been to demand that all ten of the regional directors of CPS resign and reapply for their jobs. They’ve done so and four have not been rehired and one other has decided not to reapply. So half of the regional directorships are currently unfilled (Dallas Morning News, 8/31/16).
Is that a step in the right direction? Who knows? But, as this editorial points out, it’ll take a lot more to make Texas CPS into a competent protector of children (Dallas Morning News, 9/2/16). Firing regional directors won’t increase caseworkers’ salaries or foster homes; it won’t reduce turnover or caseloads. It may alter a culture of dysfunction, but without the other, it’s just window dressing, the appearance of taking action without changing anything important.
And speaking of the culture of CPS, consider this (Breitbart, 9/2/16). It seems that Harris County (Houston) Family Court Judge John Schmude is none too pleased with the behavior of CPS caseworkers. They apparently bent over backwards to remove children from their parents when they were in no danger and then misrepresented matters to the court.
In his order, Judge Schmude called the actions by agency representatives in filing a parental custody lawsuit “groundless.” He finds that the Department “deliberately misled the Court” during a hearing in 2014 and that the removal of the child without a court order was based on “incorrect assumptions which they made no effort to confirm.”
The Houston family court judge also charges the agency with making arguments for the removal of this child from her home without a court order based on incorrect assumptions that they believed they had no duty to investigate or confirm. There was no imminent danger to the child or exigency, he writes.
Remarkably, Schmude also ordered CPS officials to read the following and file affidavits averring that they’ve done so:
- The United States Constitution;
- Article 1 of the Texas Constitution (“BILL OF RIGHTS”);
- Chapter 262 of the Texas Family Code (“Procedures In Suit By Governmental Entity To Protect Health And Safety Of Child“;
- The case law cited [in the Order] under section entitled ‘CONSTITUTIONAL PROTECTIONS;” and
- The Oath TDFPS caseworkers swear or affirm “to uphold the mission of the Texas Department of Family and Protective Services, to protect children, the elderly, and people with disabilities … uphold the Constitution of the United States and of Texas … discharge the duties of my position to the best of my ability … honestly demean myself and act in accordance with the public trust placed in me. So help me God.”
A rarity in the child protection field, Schmude seems to take the law and due process rights seriously.
In his order, Judge Schmude cited case precedent and wrote, “Courts have singled out for heightened protection that ‘most essential and basic aspect of familial privacy – the right of the family to remain together without the coercive interference of the awesome power of the state.’”
Schmude noted that Texas law also provides that “[a]ctions which break the ties between a parent and child ‘can never’ be justified without the most solid and substantial reasons’.” Moreover, the Fourth Amendment to the United States Constitution protects people from warrantless government intrusions and warrantless searches and seizures. Warrantless searches are “presumably unreasonable unless there is consent or exigent circumstances.”
I hate to tell Schmude, but this isn’t the first time Harris County CPS employees have been sanctioned by a judge and required to demonstrate a basic knowledge of the laws governing their behavior. As I reported here, Judge Michael Schneider did much the same thing back in 2011, but apparently CPS proved unable to learn the lesson.
The two dueling stories – one, underperforming due to lack of resources and two, overreaching into families that don’t need their help – exemplify the problems besieging not only Texas CPS, but child welfare agencies around the country. The first results from state legislatures that are unwilling to adequately fund CPS; the second stems from those agencies desperately trying to garner federal funds that flow to states when kids are taken into foster care.
It’s a bad situation that won’t get better any time soon in the Lone Star State.
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