A Petition in Behalf of the
Forsaken Children of Texas to the
Governor and the 76th Legislature
VIII. CRIMINAL LAW ENFORCEMENT
While we are on the subject of crime, we should consider criminal law enforcement as a response to child abuse and neglect. Because child abuse and neglect is often a crime, and because of frustrations with CPS, some child advocates urge that child abuse and neglect be investigated primarily by law enforcement and addressed primarily through criminal prosecutions of the parents who abuse or neglect children. These advocates argue that surely the police could do a better job. The 75th Legislature took a small step in this direction with a pilot project for local investigations by law enforcement as set out in Texas Family Code § 261.3019.
Only three things are wrong with turning to the criminal law enforcement: 1) it can't work, 2) if it were tried, it would be a disaster for children and costly for the state, and 3) if it were tried, the immense cost of investigating allegations of child abuse or neglect would undoubtedly become just another unfunded mandate shifted from the state to cities and counties.
In the civil system, where the goal is family reunification when possible, parents will cooperate. In the criminal system, where the goal is punishment, parents will not cooperate. Parents are much more likely to work with a CPS investigator than a deputy sheriff. Moreover, while the deputy sheriff may have better forensic skills than the CPS investigator, the CPS investigator is much more likely to be knowledgeable about child abuse.
The civil justice system is designed to move quickly to prevent future harm to children. Access to court is immediate. The burden of proof is a preponderance of the evidence. The criminal system is designed to move deliberately to sort out whether a parent is responsible for a crime. Access to court is slow. The burden of proof is beyond a reasonable doubt.
In the civil system, most children can be successfully reunited with parents. In the criminal system, with punishment as its goal, parents are often incarcerated, with children suffering from the separation and the state bearing the cost of caring for the children. In the civil system, the state bears most of the cost of investigating and prosecuting the case. In the criminal system, the cities and counties bear all the cost of investigating and prosecuting the case.
While a search for any alternatives to the present deplorable situation is understandable, few professionals in the criminal justice system think they are the answer. In truth, turning to criminal investigators or criminal prosecutors is simply moving the problem from one underfunded system that is at least designed to address the problem to an underfunded system that is not designed to address the problem. There is no easy answer; there is no cheap answer. While some cases of child abuse and neglect will require both a civil action and a parallel criminal prosecution, the overwhelming number have to be the sole responsibility of the CPS.
