TX: ‘Voluntary’ Safety Plans Allow CPS to Circumvent Due Process

June 12th, 2012 by Robert Franklin, Esq.
In Texas, Child Protective Services has begun using “voluntary safety plans” to avoid parents’ constitutional rights.  In fact, the practice has exploded with almost 12,000 of the safety plans being signed last year.  Read about it here (Houston Chronicle, 5/28/12).

I wrote recently about the dramatic expansion of state power into family life that child welfare agencies embody.  These “voluntary” plans are the latest innovation in that process.

In 2008, the United States Fifth Circuit Court hammered Texas CPS for its practice of removing children from parents without a court order.  That was done when CPS decided that a child was at risk and that it was an emergency to have him/her removed from the dangerous situation.  Far to the north in Detroit, that’s exactly what happened to Maryanne Godboldo when the child welfare agency snatched her 13-year-old daughter.  The agency decided that Godboldo’s refusal to give the girl the psychotropic medication Risperdal created an emergency that risked her well-being.  That dispensed with  the need to inform Godboldo of the legal proceedings against her.

Back in Houston, last year District Judge Michael Schneider got so angry with a CPS caseworker and her supervisor about taking a child without a court hearing, that he ordered the two to write essays proving that they understood the constitutional implications of CPS power.

Apparently the Fifth Circuit isn’t any more impressed with CPS than Schneider is.  The article tells us that the court in 2008 instructed CPS to start abiding by the law of the land.

Though ruling against the family, the 5th Circuit criticized CPS for removing the children without a court order and warned that it expected the agency to “abide by these constitutional rules and seek to involve the state courts as early in the process as is practicable.”

So, if you’re a powerful state agency that’s just been slapped by a federal appeals court and told to “involve the state courts as early in the process as possible,” what do you do?  The opposite, that’s what.  After all, that’s what “voluntary safety plans” are all about.  Following hard on the heels of the 5th Circuit decision, CPS sent a memorandum to all its investigators encouraging them to seek parental acquiescence to the “voluntary safety plans” that unsurprisingly involve taking their kids into foster care.  In other words, CPS could have done what the federal court wanted it to do – go to court for an order when it wanted to take a child from its parents.  That would have honored due process, but, as is so typical of state power, CPS opted to cut the court out of the process.  It did so by getting the parents’ consent to take their children from them.  As long as the veil of “voluntary consent” is in place, no court need be involved, and of course, no evidence produced of the need to take the kids into care.

It’s the same reason the police ask you if it’s OK with you if they search your automobile, house, etc.  If you agree – and many people are too intimidated not to – there’s no need for probable cause.

Now, if the consent is truly voluntary, then no one can argue with that way of doing things, but when CPS is involved, consent is likely anything but.

Now, “not a week goes by” that [Houston Attorney Chris] Branson says he isn’t contacted by parents who feel they’ve been bullied into surrendering their children to a “voluntary” plan under threat they will lose their children permanently through court intervention. Most were warned by CPS not to consult a lawyer, he says.

“CPS doesn’t like it when lawyers are involved,” Branson said. As a result, “there’s an important step in due process they (CPS) tend to skip.” Branson says. After all, “voluntary” plans don’t have to be reviewed by a judge.

CPS likes these “voluntary” plans so much its gotten parental signatures on almost 12,000 of them just in the last year alone.  The article gives two recent examples of CPS’s strong-arm tactics in securing those “voluntary” signatures.

In one, Dad was at work and Mom had put the two children down for an afternoon nap.  She caught a few winks of her own, during which her toddler managed to get out of the house and drown in a nearby pond.  Rather than investigate to find out if the parents truly posed a danger to their remaining child and prove their case to a judge, CPS used the parents’ anguish and grief at the loss of their child and the threat of permanent loss of the other to get them to sign one of those “voluntary” safety plans.

In the second, Mom brought her three-day-old child to the pediatrician.  In the parking lot of the doctor’s office, a woman shoved a pistol in her face, shot and killed her and made off with the newborn.  To CPS, apparently, that signified something dangerous about the father, who wasn’t even present.  When he appeared to recover his child (the mother’s killer was apprehended hours after her crime), CPS started grilling him.  For what reason, I can’t imagine, but in the process he admitted to a drug charge seven years ago.  Based on that, CPS demanded a drug test that revealed the presence of pot and a painkiller in his system.  It then demanded that he sign a “voluntary” safety plan or risk losing his child.

Needless to say, in the second case, no sane judge would have allowed either the drug test or the taking of the child.  In fact, in both cases, the parents contacted attorneys who put a stop to CPS’s shenanigans and returned the children to them.

But few parents have the money to contact attorneys, a fact well known to CPS.  Those without access to legal advice find themselves over a barrel.  CPS intimidates them with the potential permanent loss of their children, and so they agree to the “voluntary” safety plan which at least is temporary.

The lesson is clear: when ordered by a federal court to abide by the Constitution, CPS did the opposite.  Instead, it circumvented it.  It did so because states agencies jealously defend their power.  In the case of CPS, that power is exercised at the expense of parents and, often as not, in violation of the law.

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