By John Tompkins
The Facts

Published September 2, 2008

ANGLETON — A federal appellate decision that limits how Child Protective Services officials remove children from abusive homes likely will have little effect in Brazoria County, a district judge said.

A July 28 decision issued by the federal Fifth Circuit Court of Appeals restricted Child Protective Services in removing children from a dangerous household, a move applauded by family law attorneys.

The majority opinion states no child can be removed unless there is a court order, the parent consents or there is an immediate threat to the child.

Removing the children outside of those guidelines is a violation of the constitutional right of proper search and seizure, Justice Edward Prado wrote.

“Therefore, we hold that the government may not seize a child from his or her parents absent a court order, parental consent or exigent circumstances,” Prado wrote.

Exigent circumstances means the child is facing an imminent threat of physical or sexual abuse by remaining at the home, he said.

CASE BACKGROUND

The case, Gates vs. Texas Department of Protective and Regulatory Services, involved several children in a Fort Bend County family who had been removed without a court order and then returned after a judge later found there was no evidence of abuse, the opinion states.

The Texas Department of Family Protective Services issued a memo in response to the decision.

“The Gates ruling confirms that in order to do a removal without a court order, DFPS must either have consent or ‘exigent circumstances,’ which is consistent with current policy and practice,” the memo states. “However, the threshold that the opinion set for ‘exigent circumstances’ is higher than the one currently utilized in CPS investigations.”

State law requires that in the event a child is removed without a court order, Child Protective Services must file for a judge to approve the removal within 24 hours.

“This decision does not mean that hearings are going to start being held at all hours of the night,” the memo states. “It means that if we do not have the type of exceptional circumstances needed for an emergency removal, then we wait until court opens the following work day.”

The agency also changed its guidelines to include that every child must be proved to be under exigent circumstances for removal, not just one child who lives in the home, the memo states.

LOCAL EFFECT

Judge Randall Hufstetler, whose 300th District Court oversees most family law cases in Brazoria County, started taking over local CPS cases from a cluster court when his associate judge was appointed last year.

Child Protective Services cases had been overseen by a court that took care of cases from several counties because of the backlog of family law cases, he said.

Because the associate judge helped ease his caseload, Hufstetler was able to have more time to hear CPS cases and therefore oversee any removals.

“I had made the decision several months ago,” he said. “They will all come back to me. I don’t know if what we do in Brazoria County is going to change that much.”

Local Child Protective Services officials declined to comment about the agency’s policy change and referred comment to Patrick Crimmins, a public information officer for the Department of Family Protective Services.

Crimmins provided the memo and said the agency would not comment outside the document.

“There’s really not much we can say,” he said.

District Attorney Jeri Yenne said despite the policy change at Child Protective Services, she will not allow any child in Brazoria County to be harmed.

“We are going to continue to protect children in Brazoria County,” she said.

If a child is in danger and Child Protective Services will not step in to remove them from the household, her office would do it instead, she said.

“We expect CPS to notify us of those circumstances,” she said. “We will not stop presenting cases where children are in danger. We will take it upon ourselves … regardless of state guidelines.”

REDUCED REMOVALS

Angleton family law attorney Mark Jones said Child Protective Services often would remove children from a home without a court order in cases where there had been abuse in the past and there might possibly be abuse in the future, not necessarily an imminent threat.

Jones said the decision would reduce the number of summary removals in the county.

“They used to be the most powerful agency in Texas,” he said. “No state agency should have unfettered control.”

Family law attorney Shannon Tigner agreed the court’s ruling and the agency’s policy change is a positive move.

“What they think warrants a pickup is not necessarily what a judge thinks warrants a pickup,” she said.

In Brazoria County, even before the ruling, Child Protective Services employees usually seek a court order before removal, she said.

The ruling might have prevented the removal of more than 400 children who were taken into Child Protective Service custody in April from the Fundamentalist Church of Jesus Christ of Latter-day Saints compound near Eldorado, local attorneys said. A judge later ruled the agency didn’t have the evidence to remove them from the compound, and the children were returned to their mothers.

Kidz Harbor, a foster care facility near Liverpool, kept 25 of the children from the FLDS compound until they were returned to their parents.

Kidz Harbor board president Angela Colbert said the ruling might not be in the best interest of children who live in abusive environments.

“I was surprised by it,” she said of the ruling. “I’m not really sure I agree with it.”

Thomas Sanders, who represented Gary Gates in the federal suit, said the decision will help bring about good change in how children are handled in the legal system.

“This agency was taking the practice further than the law states,” he said. “I hope they’ll follow the law.”

The ruling should not preclude children under an immediate threat from being removed from the home, Sanders said.

“Children that are in imminent danger need to be picked up,” he said.

John Tompkins is senior reporter for The Facts. Contact him at (979) 237-0149.

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Emphasis added by H4K Editor