Why the Texas GOP is calling to abolish state’s child welfare agency

Department of Family and Protective Services Commissioner Henry “Hank” Whitman (Facebook/DFPS)

At the statewide convention of the ruling party of Texas earlier this month in San Antonio, delegates agreed on a new position on Child Protective Services (CPS), the agency that investigates reports of child abuse and neglect: get rid of it.

The call for “the eventual abolishment of CPS” was enshrined in the official party platform after passing through a subcommittee on civil and criminal justice, a larger committee handling the platform as a whole, and the general convention. The platform doesn’t set a target date for when the agency should be closed, but says that in the interim its powers are too far-reaching and should be curtailed.

In itself, the platform does nothing to change how the government is currently run, but it represents official party doctrine and points to a rift between incumbent Republican politicians who in recent years have moved to expand CPS and grassroots delegates who took part in drafting the platform. “If it’s in the platform, we will fight for it,” said GOP Chairman James Dickey in remarks to the drafting committee.

CPS is a program under the Department of Family and Protective Services. What it does is investigate cases of alleged physical, sexual, or emotional abuse of children and bring those cases to court where a family law judge has to decide whether there is reason to believe that a child has been abused or neglected and faces imminent danger. The judge has powers to take children from their parents, or to order parents to undergo services like counseling or drug treatment.

If CPS didn’t exist, who would investigate reports of child abuse? The Texas GOP doesn’t explain this in its platform, so Austin Bureau turned to Faith Bussey, the party delegate who chaired the relevant subcommittee at the convention.

Although she declined to answer written inquiries, in public remarks elsewhere she emerged as an outspoken critic of the child welfare agency. According to Bussey, the criminal justice system is adequate to handle allegations of abuse and would better protect parents from false accusations and the “subjective” judgements of caseworkers. “I don’t think CPS should exist at all… anything that happens to the child that violates their natural God-given rights is a crime, and it should be treated as a crime,” she said on a podcast last year.

“And so we have sheriffs who are elected in every county. And if they want to go in and they want to investigate and do innocent-until-proven-guilty and trial-by-jury and all those things, then that should absolutely happen. But that requires process and that requires people not running to CPS and not thinking that the government is going to be, like, the kindergarten teacher who comes in and makes everybody play fair, play nice,” said the GOP delegate.

‘We have sheriffs who are elected in every county.’

Her language is echoed in the Republican platform, which reads, in part, “We support reform and any legislation that would support due process in family court proceedings, and we fully support a jury determining the outcome of any case if requested by either party.”

Under Texas’ current system, parents are entitled to request a jury trial but that usually happens later in a case, sometimes after a judge has already ordered children taken away from their parents. The Texas Family Code gives both law enforcement and the Department of Family and Protective Services — the department housing CPS — powers to investigate reports of child abuse or neglect. The law mandates that they cooperate with each other and make mutual case referrals. If the CPS program were to be abolished, law enforcement could theoretically take over the whole case burden, as suggested by Bussey. But a union of Texas social workers rejects this idea, saying that handling of cases in the criminal justice system would not be good for families and would make it harder to protect vulnerable kids.

“The whole idea behind CPS is that many families are in crisis and need support through education or services, and in many of these cases we don’t want law enforcement involved,” said Will Francis, Government Relations Director for the Texas Chapter of the National Association of Social Workers.

According to Francis, who is a former CPS caseworker himself, the GOP proposal would “take the nuance” out of the existing family law system. Criminalizing the process would make it just about terminating rights rather than about giving families a chance to get help and turn their lives around, said Francis. “This isn’t a black-and-white world and you can’t just say this is a criminal case or not a criminal case.”

Due process concerns

Ahead of the San Antonio convention, conservative lawyers for the Texas Public Policy Foundation were pushing for changes to the Texas Family Code. In a May 8 press release, the think tank said it was joining a lawsuit claiming that Section 264.203 of the Texas Family Code is unconstitutional because it “allows CPS to seek judicial micromanagement of the family without adequate evidence of abuse or neglect.”

“Before the government can take even minor liberties or private property, the Texas Constitution requires that individuals have their day in court, with all the procedural protections that entails,” said Chance Weldon, an attorney for the group.

“Here the law at issue gives the Department of Family Services the authority to interfere with one of the most intimate rights protected under the Constitution — the parent-child relationship — with almost no procedural protections at all. That’s not just unfair, it’s unconstitutional,” Weldon said.

TPPF’s call for procedural reforms was a position ultimately adopted into the party platform at the convention. Yet the GOP platform goes beyond what the policy group had called for, since it not only envisions procedural reforms but also the elimination of CPS altogether. Prior to the convention, Brandon Logan, director of the think tank’s families and children program, had said that Child Protective Services “fulfills the vital function of protecting children from immediate risk,” according to the May 8 press release. Logan declined to comment on the GOP plank. A spokeswoman explained, “We try to avoid commenting on specific party activities.”

For his part, former CPS caseworker Will Francis argues that the current courts do provide protections to parents, because social workers have to “show imminent risk” in order to secure court orders for services or removal. He says the civil court system was set up for these kinds of cases and its standard of “preponderance of evidence” is more appropriate than the “beyond a reasonable doubt” standard used in criminal courts.

If a jury trial were required too early in cases that might leave more children in abusive situations, he fears: “I think you’d see child deaths go up because you’d have a lot more dismissals.”

Homeschoolers

GOP delegate Faith Bussey’s militant opposition to the Texas child welfare agency has its roots partly in the homeschooling movement and concerns over state interference with homeschool parents. In a 2014 article in Opinion Arlington, Bussey referred to CPS handling of a North Texas case with a homeschool family as “persecution” and compared it to Germany, where the government has outlawed homeschooling. She wrote that some local judges and CPS workers are “denying parental rights and demonizing homeschoolers.”

The case in question involved a family with seven children, one of whom was found by police wandering away from the home. During subsequent court proceedings, a judge found the parents in contempt of court and ordered the removal of the children. “The children were forcibly removed from their home, placed into foster care, and ordered to undergo educational evaluations,” Bussey writes.

Another judge later returned the children to the parents, but they were required to stay in a public school. “While there are still no allegations of abuse or neglect, the judges presiding over this case seemed primarily concerned that the children might not be up to par with their public-school counterparts,” Bussey says.

Texas lawyer Bradley Pierce, who represents Christian homeschooling families for an organization called Heritage Defense, shares concerns over CPS, saying, “Child Protective Services is really intruding into families’ lives in a big way.” He wants the state to make the agency “so small that you can’t see it.”

According to Pierce, “Children are four times more likely to be abused in foster care than they are in the general population, which means if there were no CPS at all children would be safe.”

Bussey recounts a second North Texas case that she learned about on Facebook and says “lit a fire under me.” The case of the Cook family involved seven homeschooled children who were taken away from their parents after an adopted son was found dead in the home and seemingly malnourished. CPS temporarily placed the children in the care of a family friend. Charges against the family were later dropped and the surviving children returned to the parents, but the family claimed that the children were abused while in state’s custody.

“To me that is the biggest horror story that I can possibly imagine.”

‘Investment in early intervention’

In recent years incumbent Republicans have moved in the opposite direction from the GOP platform, expanding CPS programs, boosting salaries, and calling the child welfare system a top priority. They boosted the two-year budget of the Department of Family and Protective Services for 2018–19 from $3.5 billion to $4 billion, including about $300 million for pay raises for caseworkers and another $88 million to hire more caseworkers.

Governor Greg Abbott called for an expanded role for community organizations and faith-based groups in foster care, but he did not target CPS itself, instead urging the legislature to “preserve the current investment in early intervention” and calling “investigations and interventions” a necessary part of the child welfare system.

“Overhauling Texas’ broken child welfare system must remain a top priority for the Governor’s Office, the Texas Legislature and the Texas Department of Family and Protective Services (DFPS),” Abbott wrote in the forward to his 2018–2019 budget, presented to the legislature in January last year. “Investment in the protection of Texas’ greatest resource — our children — is why this budget proposes $500 million in biennial funding increases for DFPS.”

Delegate Bussey slammed the legislature for boosting CPS funding, saying that the new resources would be used by social workers to “come into our homes and invade our privacy and invade our rights.” Francis, representing the Texas social workers, responded, “We need to stop looking at CPS as an adversary and look at them as a service that supports families.”