Texas CPS Memo "Quit violating the Constituion, or we could be sued!"
Thanks to the TDCAA website for posting this memo from CPS. Recently, CPS was sued by two parents in Fort Bend County for numerous constitutional violations.
The 5th Circuit Court of Appeals held that CPS could be liable to future litigants (under a 1983 claim). Normally, the government grants itself immunity from lawsuits. However, the 5th Circuit held that CPS may not have immunity if they continue to violate the constitutional rights of parents. Rightfully, CPS is scared about the possibility of massive judgments against them. Hence this urgent memo to employees.
From the CPS memo-
On July 28, 2008, a federal appeals court with authority over Texas handed down a decision in a case that will be referred to as “the Gates case.” The decision is binding on Texas and because it involves federal constitutional rights, supersedes anything to the contrary in Texas law, or DFPS policy or practice.I. INTRODUCTION
The Gates case is significant for two key reasons. First, it sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.
CPS may consider this a "new" standard. I disagree. The Constitution has been around longer than CPS. CPS shouldn't be surprised that it applies to them.
Consent Searches
Just like the police will ask for consent to search your car, CPS will ask for consent to search your home. This memo reminds CPS that they can not invade private residences without a court order, consent, or emergency.
Parents, read this section and learn these rules. If CPS wants to enter your home it is not to help you. Call an attorney to protect your rights.
I
V. ENTERING AND REMAINING IN A HOMEA. SUMMARY
As with removals, in order to gain entry into a home for the purpose of a CPS investigation, we must have one of the following: 1) exigent circumstances, 2) consent, or 3) a court order, but the Gates ruling provided additional explanation concerning exigent circumstances and consent that will affect our practices.
NOTE: even if we do have exigent circumstances to enter a home, it may be more appropriate for safety reasons to call law enforcement to gain entry.
Current Practice: CPS enters a family’s home only if we have exigent circumstances, consent, or a court order. CPS does not always ensure consent is specific to our investigators. A court order in aid of investigation is rarely utilized.
New Practice: As with removals, exigent circumstances are present only where there is immediate danger to a child in the home, i.e. life or limb is in immediate jeopardy. Consent must be clear, unequivocal, voluntary and given specifically to CPS, as opposed to law enforcement. We will likely increase the use of court orders in aid of investigation.
One sentence sticks out. CPS will increase the use of court orders. That is a great idea. Instead of taking children first, and then going to court; CPS should actually investigate, then go to court for a removal. Of course, if this turns into a rubber stamp situation like DWI blood search warrants, then again there will be no justice.
More on the consent guidelines below the fold....
From the Memo-
2. ConsentThe Gates case serves as an important reminder about the need for consent to enter a home for the purposes of conducting a CPS investigation. Key points are:
• Consent must be affirmative. It is not enough that a person does not say no. Consent for CPS to enter a home must be voluntarily given and unequivocal (clear). You should identify yourself as a CPS investigator and explicitly request and receive permission to enter the home. The best practice is to ensure that the person states you may enter (rather than simply getting a nod or other non-verbal gesture). In any case you must document the basis for consent in your narrative.
• Consent should be from someone with authority to give it. A parent has the authority to consent to or deny entry to the home. It is also reasonable to assume that if the parents have left one or more children in the care of an adult caretaker, that caretaker has the authority to consent to allow the caseworker to enter the home and interview the child in private, although a caretaker probably does not have the authority to permit a search of the entire house. If an adult is not home, the caseworker should rely on the consent of a child in the home only if the child appears old enough to effectively give consent. Teenagers will likely be old enough; children 12 or younger probably will not.
• Consent can be withdrawn at any time. Anyone with authority to give consent can also withdraw it at any time. The decision of a parent or other individual living in the home is the final word. So, if entry is gained after a housekeeper who does not live in the home gives consent, a parent or other individual living in the home could at any point instruct CPS to leave and we would be obligated to do so.
• Consent must be given to CPS. We routinely conduct joint investigations with law enforcement, but it is important to remember that our activities are separate. If law enforcement gains entry to a home, we must still request permission for CPS to enter. Moreover, if law enforcement determines consent is not necessary to their investigation, this determination does not apply to us. We must independently determine whether there are exigent circumstance or whether we have been given consent to enter.
Comments
Wow! Looks like there is still some hope for the constitution and our rights. Thanks for passing on the good news.
Posted by: Michael in LH | October 9, 2008 11:53 AM
It shows us if the government is out to get you then they will do whatever they can to do so. What needs to happen is the governemnt officals need to be punished if they cannot or do not prove the person guilty and let the weight of the goverment come down on them and ruin their life's like thy do for so many others. This may stop some of the stupid prosecutions that they take on. This way some real crimminals that pose a danger to us can be solved.
Dennis
Posted by: Dennis | October 12, 2008 9:32 AM
Comments on the Gates Ruling
Many areas within the Courts ruling have produced chilling effects...
1). Not obtaining a court order prior to removal of a child from the home
2). Not obtaining a court order prior to removal of a child from the school, no public standard for expectations set by law
3). DFPS\Law Enforcement not informing parents of interviewing their children, no public standard for expectations set by law
4). No investigation into as to why CPS Caseworkers avoid obtaining a court order on a regular basis, no public standard for expectations set by law
5). No investigation into the "practice of avoiding" obtaining a court order on a regular basis, no public standard for expectations set by law
6). A conscious decision by Circuit Court Judges to not provide a solution to the known issues in the Gates case before the Gates case occured eventhough the information was available in the public, but not researched by said Courts, no public standard for expectations set by law
7). DFPS not held to an "Emergency Standard" as many other state agencies are, no public standard for expectations set by law
8). Special needs children making the "Report of Abuse" must be considered when assigning a "Priority" number to a case
9). No independant investigative body responsible for complaints lodged against DFPS, since the Attorney General is responsible for representing DFPS, conflict of interest from the memo
Posted by: Warren | October 14, 2008 10:04 AM
Between this failing process and giving away 700 billion taxpayer dollars to management that has a failing process that will continue the same process (no public indication of change in process), just shows us that we, Americans, need to step back and evaluate the current governments ability to represent what is best for America. We, Americans, must be included as a part of governmet in larger private numbers inorder to represent our best intrests or terraform the current governmet and used what we have done correctly and really learn from mistakes made in the past.
Posted by: Anonymous | October 14, 2008 5:39 PM
Will parents who've already had their children wrongfully taken be able to use this new case law?
Posted by: Liliane | October 31, 2008 2:37 PM
this is actually stupid...and the outcome will be seen in a few years when more and more kids are being abused and CPS can't help. Just watch and see.
Posted by: Anonymous | November 11, 2008 4:58 PM