A Petition in Behalf of the
Forsaken Children of Texas to the
Governor and the 76th Legislature
IX. FEARS ABOUT A STRONG CPS
Whenever there is a discussion about the Child Protective Service, some uncomfortable issues often go unaddressed, but nevertheless affect decisions. Texans have fears about a strong CPS. Texans believe that families should raise children, not the state. For Texans, as for most Americans, the most frightening words in the English language remain: "I am from the government, and I am here to help."
Two communities in particular have concerns about CPS. Communities of faith worry that a misguided CPS will interfere in religious matters. Faiths that embrace corporal punishment worry especially about confusion between reasonable discipline and physical abuse. Communities of color--African Americans and Mexican Americans--also have fears about a strong CPS. African-American children and Mexican-American children disproportionately live in poverty and are disproportionately represented in the child protection system. These minorities worry whether a largely anglo-dominated state agency will be sensitive to cultural differences.
These concerns are legitimate. There have been--and will be--cases where most Texans or particular communities of Texans disagree with the actions of the Child Protective Service. CPS will make mistakes. But mistakes of these sorts, while a legitimate concern, are checked by safeguards already in place.
To begin with, the Texas Family Code does not give CPS a license to interfere in family lives. The Texas Family Code recognizes that parents have the right to raise their children and narrowly defines when CPS may take action. Under Texas Family Code § 262.104, before removing a child on the grounds of an emergency, a CPS investigator must have personal knowledge or information corroborated by personal knowledge that "would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child . . . or that the child has been the victim of sexual abuse."
Furthermore, the Texas Family Code does not leave these decisions in the hands of CPS. Every decision must be reviewed and approved by a hard-nosed Texas judge. If a child is removed by CPS, Texas Family Code § 262.106 requires that that decision be reviewed by a judge within one working day. If the judge approves the emergency removal, Texas Family Code § 262.201 requires a full hearing within fourteen days. In most cases, indigent parents are entitled to a court-appointed lawyer. After the hearing, the judge must order CPS to return the child unless the judge finds 1) a danger to the physical health or safety of the child caused by the parents, 2) that it would be contrary to the welfare of the child to remain with the parents, 3) that efforts to prevent removal are not possible, and 4) that there is a substantial risk of continuing danger if the child is returned home.
Beyond these substantive and procedural legal safeguards, there is a sadly practical reason why we need not fear CPS interfering in the lives of average families. The cases of abuse and neglect in our communities are so serious and so numerous, that frankly CPS does not have now--and will not have even with significantly increased funding--the resources to consider the questionable or arguable case.
If you need proof of this assertion after reviewing the numbers in this petition, just reconsider Victoria and Nakia who lived in Travis County. They lived in the county in Texas that has the most aggressive local child protection practice. They lived in the county in Texas that has by far the highest removal rate for children. Yet Victoria was not removed until circumstances were beyond tragic. Nakia was not removed at all. CPS works at the core of abuse and neglect, not at the margin.
Even so, we should not set aside our fears about a strong CPS. We must be vigilant to ensure that CPS operates within state law. But we cannot let our fears determine our response to the desperate plight of thousands and thousands of truly abused and neglected children. To allow ourselves to be ruled by our fears would not be in our children's interest or our collective interest.
