Category: legal

child death, child welfare reform, foster care abuse, cps, domestic violence, General, law, legal, social services, system failure children
Texas Laws on Child Abuse

Reporting Child Abuse

Mandated Reporting

Texas Family Code

261.101 Persons required to report

A person (everyone) having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. This requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services. The identity of the reporter is confidential and may only be released by order of court or to law enforcement agency conducting a criminal investigation.

Texas Family Code

261.103 Report made to appropriate agency

A report shall be made to: any local or state law enforcement agency; Child Protective Services if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child; the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred; or the agency designated by the court to be responsible for the protection of children.

Texas Family Code

261.104 Contents of report

Person making report shall identify, if known:

name and address of child; name and address of person responsible for the care, custody, or welfare of child; and any other pertinent information concerning the alleged or suspected abuse or neglect.

Texas Family Code

261.106 Immunities

Persons acting under good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

Texas Family Code
261.107 False report
A person commits an offense if the person knowingly makes a report under this chapter that the person knows is false or lacks factual foundation. The offense is a Class A misdemeanor (up to 1 year in jail and/or $4,000 fine).

Texas Family Code
261.109 Failure to report
A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter. The offense is a Class B misdemeanor (up to 180 days in jail and/or $2,000 fine).

Child Outcry Statements

Texas Code of Criminal Procedure 38.072

Hearsay statement of child abuse victim
Statements of a child under the age of 13 who is a victim of sexual offenses or assaultive offenses made to the first person 18 years of age or older are an exception to hearsay rule and that person can testify directly as to what the child said to them.

Privileged Communications

Civil

Texas Family Code
261.202 Privileged Communication
In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.

Criminal

Texas Code of Criminal Procedure 38.10 Exceptions to spousal privilege
The privilege of a person’s spouse not to be called as a witness for the state does not apply in any proceeding in which the person is charged with a crime committed against the person’s spouse, a minor child, or a member of the household of either spouse.

Texas Rules of Criminal Evidence 503 and 505

The privileged communications afforded by attorney/client and clergyman/ client relationships applies to criminal prosecutions except as noted in the Texas Family Code 261.101 (initial reporting).

Statute of Limitations

None –
murder/manslaughter

10 years past child’s 18th birthday –
aggravated sexual assault of a child
sexual assault of a child
indecency with a child by contact

10 years- indecency with a child by exposure

  • All persons are
    required by law to report child abuse.

  • The report can be made
    to law enforcement, Child Protective Services, or the agency regulating the
    facility where the abuse is occurring.

  • Report should contain
    name/address of child and caregiver as well as information regarding the
    abuse.

  • Information about the
    reporting person is confidential except if ordered by court or to aid law
    enforcement in their investigation.

  • Persons reporting in
    good faith are immune from civil or criminal punishment.

  • Persons making
    intentional false reports can be punished criminally.

  • Persons failing to
    make a report can be punished criminally.

  • Hearsay (statement
    made by another person) is usually not admissible in court. In cases
    where a child is a victim under 13, the first person the child told about
    the abuse 18 or over can testify to the hearsay statement.

  • There is no privileged
    communication in civil child abuse cases except for statements to your
    attorney.

  • The only privileged
    communication in a criminal child abuse case is those to your attorney and
    your clergyman.

  • A spouse or other
    family member can be compelled to testify against anyone.

  • The time that a person
    can be charged after committing sexual abuse of a child is up to 28 years
    except in cases of child death in which case there is no set time to bring
    charges after the commission of the offense.

source: ATCCAC Home Page

child custody, child welfare reform, foster care abuse, cps, Eldorado, family, foster care, government, law, legal, system failure
ElDorado Childrens’ Removal by CPS was based on False Allegations

But still … they are keeping the kids in foster care…. ?  Why?

Warrant dropped against man named in polygamist retreat raid

May 2, 2008

ELDORADO, Texas (AP) — An arrest warrant has been dropped for a man thought to be the husband of a teenage girl whose report of abuse triggered a raid on a polygamous sect’s Texas compound, authorities said Friday.

A Texas Department of Public Safety spokesman would not say why the warrant was dropped for Dale E. Barlow, 50, who lives in Colorado City, Ariz. Barlow has denied knowing the 16-year-old girl who called a crisis center.The girl reported that she was a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints and that she was beaten and raped at the sect’s Eldorado ranch.

An investigation led to the April 3 raid, in which state welfare workers took 463 children living at the Yearning For Zion Ranch. A boy was born to one of the sect’s mothers Tuesday; he and the other children remain in state custody.

Authorities have not located the 16-year-old girl and are investigating the source of the call.

Public Safety spokesman Tom Vinger would not say when the warrant for Barlow was dropped, only that “it is no longer active.”

Rob Parker, an FLDS spokesman, said the dropped warrant shows the weakness of the state’s case against residents of the ranch.

“I think that’s just one more piece of evidence that the whole basis on which this raid was premised was unfounded and was inadequately checked out, to the formulation of what basically amounted to an army that went in there and took their children,” Parker said.

The phone number used to call the crisis center is the same one once used by a Colorado woman, identified as 33-year-old Rozita Swinton of Colorado Springs, accused of making previous false reports of abuse.

Investigators have not said whether Swinton made the call to Texas authorities, though Vinger said she is “still considered a person of interest.”

“There is an investigation centering on that,” Vinger said. “We have quite a bit of evidence that still needs to be analyzed.”

A judge has ruled that children removed from the ranch should stay in state custody until all can have a hearing.

Child welfare officials told the judge the children were living in an authoritarian environment that left girls at risk of sexual abuse and raised boys to become sexual perpetrators.

The FLDS is a group that splintered from the Mormon Church, which does not recognize the sect and disavows polygamy.

In Utah, members of the polygamous church have asked the state’s governor to intervene in its fight with Texas authorities over the custody the children.

A letter written by FLDS elder Willie Jessop says Texas officials are rejecting Utah-issued birth certificates and other documents as “fake.”

The letter asks Gov. Jon Huntsman to exercise his executive authority to assist in protecting the civil rights of native Utahns and FLDS members. FLDS parents claim they have been denied their due process by the Texas courts.

“Without your leadership and personal intervention in this matter, the parental rights of every Utah family is at risk,” Jessop wrote.

Huntsman spokeswoman Lisa Roskelly said the governor has been in contact with Jessop and was reviewing his request.

child death, child sex crimes, child welfare reform, foster care abuse, death penalty, domestic violence, family, General, government, law, legal, rape, sexual assault, system failure, U.S. Supreme Court
Texas Argues Death Penalty For Child Rapists

http://www.dallasnews.com/sharedcontent/dws/dn/yahoolatestnews/stories/041708dnnatscotus.6c5b97cf.html?npc
 
U.S. Supreme Court to hear Texas argue death penalty for child rapists
08:39 AM CDT on Wednesday, April 16, 2008
By BRENDAN MCKENNA / The Dallas Morning News
bmckenna@dallasnews.com
 
WASHINGTON — Texas says sometimes the sexual assault of a child can be so violent or obscene that the only appropriate punishment is to execute the offender.
 
And Wednesday, Texas Solicitor General Ted Cruz will make that case to the U.S. Supreme Court, arguing that state legislatures have the constitutional right to allow the death penalty for child rapists.
 
The case before the court, Kennedy vs. Louisiana, concerns a Louisiana law and the case of a Jefferson Parrish, La., man convicted of raping his 8-year-old stepdaughter. But striking down that law could call into question Texas’ 2007 “Jessica’s Law,” which allows the execution of certain repeat child sex offenders.
 
The Supreme Court ruled 30 years ago that death was an excessive penalty for the aggravated rape of a 16 year-old girl. But Mr. Cruz said that decision implicitly left open the door for capital punishment for the rape of children in referring to that victim as an adult.
“The damage inflicted on this 8-year-old girl … will remain with her every day of her life,” Mr. Cruz said. “The Constitution does not prohibit elected legislatures from making the determination that the most egregious forms of child rape should permit the jury to impose the most serious sentence.”
 
But the prospect of capital punishment could lead to fewer abuses being reported because most child sexual abuse is committed by someone known to and even loved by the victims, said Judy Benitez, executive director of Louisiana Federation Against Sexual Assault. The group is leading a coalition of victims groups opposed to applying the death penalty for child rapes, including the Texas Association Against Sexual Assault.
 
“These are extremely manipulative people,” she said. “They say to the child, ‘If you tell, you’re going to make the police come and take me away, and then how is Mom going to pay the bills.’ They put it very much on the child.”
 
The groups also argue that if the death penalty can be imposed for child rape, it could make some offenders more likely to kill their victims to prevent them from testifying, she said.
Aside from the moral arguments, David Bruck, executive director of the Virginia Capital Case Clearinghouse at Washington and Lee Law School, said Mr. Cruz and the lawyers for Louisiana face serious legal hurdles.
 
“The Supreme Court doesn’t take very many easy cases, but this should be one,” he said. “The rape of a child is not the same as killing a child, that’s basically what the court said [in 1977]. … Horrible as the crime is, it is not equivalent.”
 
Mr. Bruck said the court could strike down the Louisiana law and leave Texas’ statute intact because it more narrowly restricts cases in which the death penalty could apply. A ruling is expected later this year.
 
Arguments for and against allowing the execution of those who sexually assault children:
AGAINST
Execution is “cruel and unusual punishment” when applied to child rape cases because the Supreme Court already ruled that it is excessive in rape cases when the victim was not also killed.
 
Executions for child rape mean the penalties for rape and murder are the same so an offender may be more likely to kill a victim.
 
Executing child rapists may make it more likely for some child sexual abuse to go unreported.
 
Louisiana’s law, the subject of the case being argued today, is too broad because it could apply to any rape of a child under 12, not just the most egregious.
 
FOR:

 Execution is not necessarily barred by previous rulings as excessive for all rape cases, merely for the rape of an adult woman.
 
Violent rape of a child is particularly egregious and shows “a degree of manifest evil, that is qualitatively” different from other rapes.
 
Society’s moral standards are evolving to recognize the horror and damage caused by child rape and impose stricter punishments on perpetrators.
 
Louisiana’s aggravated rape law, which also includes rape of the elderly, allows the death penalty only for rape of children under 12.

child welfare reform, foster care abuse, crime, domestic violence, law, legal, sex offenders, texas
ACTION ALERT:: ELLIS COUNTY PROSECUTOR FREES SEX OFFENDER – SPEAK OUT!

Please speak out against this outrageous move by Patrick Wilson, for the sake of my children and others out there that he WILL victimize. How can this happen years after a guilty plea??

Comments, please, petition, write your congressman, this is outrageous!!!

Child sex offender cases released, charges dismissed

KELLIE ROBINSON
and GLEN JACKSON

The Ellis County Press

WAXAHACHIE – Angel DeJesus Hernandez was alleged to have raped a child.

He plead guilty in 2005 and was given a probation sentence of five years and ordered to pay $1,000 in restitution.

One of the terms of his deal with County Attorney Joe Grubbs’ office was he would have to register as a sex offender if he violated any terms of his sentence. (under deferred adjudication, alleged suspects are not required to register).

Hernandez, according to court documents in the Ellis County District Clerk’s office, committed another act of sexual assault of a child in July of 2006.

This time, the sexual assault charge resulted in another two-year probation sentence with no fine.

Other cases The Ellis County Press has researched include the more recent James Leonard file. The Waxahachie lawyer was placed on 10 years probation for allegedly molesting two girls under the age of 14, according to court records. He has since fled the country to Central America, according to investigators with the Ellis County Sheriff’s Office.

A warrant has since been issued for his arrest. Leonard was placed on probation several days after 40th District Court Judge Gene Knize won a re-nomination battle in the 2006 Republican primary over Midlothian attorney Dan Altman.

Other cases The Ellis County Press has reviewed:

Cause No. 30278CR – Renee June Deguizman
Court records state, ‘�forced sexual organ of �Logan’ (under 17 yoa) to contact and penetrate mouth of defendant. Five years jail and no fine. Plead guilty.’

Cause No. 29502CR – Brian Keith Martin Jr.
Documents state Martin ‘raped �J.D.’ a child under 17 yoa, plead guilty, two years [jail] and no fine.’ Defense attorney Cindy Ermatinger had Martin credited for 91 days off his jail sentence.

Cause No. 30390CR – Ronnie Lynn Cummings Jr.

‘Rape, child under 14 yoa, with penis and vibrator, sodomizing, forced oral sex on her, 40 years each count.’

The prosecutors dismissed the charges of oral sex and assault due to Cummings maintaining his innocence, according to court documents.

Assistant prosecutor Patrick M. Wilson signed the court documents allowing for the dismissal of the case. Defense attorney Cindy Ermatinger filed a writ of habeas corpus, stating the bond of $100,000 was ‘excessive.’

This is not a good thing, this man will re-offend, I’m willing to place my soul on that … OUR CHILDREN WON’T BE SAFE. So my question is what, if anything, does it change for his sentence?! 

How do the on-record victims that each of these pedophiles were convicted for, feel about this? 

 How can this happen after he plead guilty?

Anyone know these answers?
Cause No. 31362CR – James Cotter
‘Rape of a child under 14 yoa, plead guilty, five years in jail, credited 183 days.’
Cause No. 30830CR – Joe Rudy Ramos Jr.

 

Court documents state Ramos Jr. ‘forced �C.F.’ (child under 14) to place her genitals in his mouth.’ Ramos attempted suicide on July 11, 2006 and as a result, prosecutors dismissed the case. Ramos rejected a plea bargain of 10 years deferred adjudication. A trial date had been scheduled for Jan. 9, 2007, but ‘due to vacation plans the state has not had time to adequately prepare child witnesses.’

Cause No. 31045CR – James Edwards
Judgment was entered on Nov. 3, 2006 in Knize’s 40th District courtroom for allegations of aggravated sexual assault of a child, according to court documents. The offense allegedly occurred on Dec. 31, 2004.

Edwards plead guilty and in exchange, he received 10 years deferred adjudication, paid a $2,000 fine and was ordered to perform 720 hours of community service. Edwards, according to the documents, served 149 days in jail and went through sex offender treatment.

Lindy Tober, one of Grubbs’ assistant prosecutors, stated ‘it was in child’s best interest for Edwards to be on deferred adjudication.’

Court documents also reveal the victim was a foster child and that he ‘placed finger in anus of [victim under 14].’

(more…)

child support, child welfare reform, foster care abuse, cps, domestic violence, false allegations, foster home, government, law, legal, system failure, system failures
Check out LawyersandSettlements.com – Article written about my story!

Abusive Ex-husband Makes Sure Woman Loses Son News

Its Almost Tuesday – Read Our Story on http://www.lawyersandsettlements.com

January 8, 2008. By Julia Browne RSS FeedRSS Del.icio.usDel.icio.us NewsvineSeed Newsvine FacebookFacebook

Dallas, TX: Mary’s abusive husband, Robbie, vowed to make her pay if she left him. She dared escape domestic violence, but due to additional victimization by Child Protection Services (CPS), the police, and her own mother, she lost her 8 year old son.

“After my divorce I moved with my son to a ‘safe state’, Florida. Robbie followed me there so I had to get a domestic violence protective order and he wasn’t allowed within 5 miles of us. He did try to contact me by email and phone on holidays, which I logged and reported to the local police but it wasn’t considered severe enough for an investigation.”

“For six years in Florida I was happy. I’d gotten married and was living the typical life of barbecues on Sunday and PTA. But stress from the aftermath of that previous abusive marriage and living in constant fear made things difficult and my new husband and I separated. In October 2003, with my family in Texas I figured we’d be all right there for a couple months but that was a fatal mistake.”

Abused WomanIt didn’t take long for Mary’s ex-husband to catch up with his prey.

“Just after the holiday season I reported his stalking behavior and calls to the police department of a suburb of Dallas/Fort Worth. On at least eight occasions they said, ‘oh that’s a Florida order, we’re not going to uphold that in Texas’.”

“Getting away with minor violations made Robbie bolder. He conspired with my mother to take my son away from me, even though he wasn’t his biological father. Together they made allegations against me of mental and emotional abuse, of drug use, and they even claimed I was in a baby-killing cult. When my son was born I cleaned up my life and stopped any drug use. CPS did four different tests and found nothing at all so in mid 2004 I was cleared of all charges of neglect and abuse.”

Mary and her son prepared to move back to the safety of Florida. Their nightmare was over… or so they thought.

“In May 2004 my son went to church and never came home. He was abducted. When I reported it the police, they and a CPS agent showed up at my door, not to give me news, but to get me to sign another accusation of abuse from my ex-husband and my mother. I refused. My attorney tabled a motion to have my son immediately released to me but on day the court order was signed, the police came and took me to a mental hospital for ‘observation’ based on a false affidavit.”

“The doctor couldn’t find any reason to detain me but during that 24 hours I was in that hospital Robbie, GrandMommy, the police officer and a CPS worker broke into my apartment and stole over $10,000 worth of property including all my home videos and photos of me and my kids, all my legal files and evidence, electronics, medication and even my wedding ring. Even our dog was gone.”

Mary’s son was placed in a foster home.

“Parents have to do something like take parenting classes, go to rehab or counseling to have a chance at getting their kid back. I did but they said I didn’t complete their services just because I chose to get my own counselor, not the one of their choice. They called me uncooperative if I did anything that was against my civil rights but even though one of the case workers wrote that my case wasn’t of abuse but of child custody they do retaliate, I hate to say. They ruled against me because I challenged when I knew things weren’t being looked into, like my accusation of Robbie molesting children.”

“The last time I saw my son was just before Christmas 2004. The case worker arrived without him and said, ‘we forgot to bring him’. But that wasn’t possible. He’s nine years old and he knows when it’s Tuesday. The next day, December 22nd, they brought him. He had a black eye, blood on his shirt; he’d been beaten. I never saw him again.

That’s when I started my blog almosttuesdays.com which came out of a poem I was commissioned to write for Child Abuse Awareness month. It was all the things my son had said to me during out visits that we shared that no one else knows about.”

“When I realized he wasn’t coming home I fell apart. I was in such shock. I didn’t have an attorney so I represented myself. Fortunately I’m a paralegal so I could write my own pleadings but they were just ignored. My son’s name was changed, he lives with GrandMommy and I’m not allowed to talk to him. Then Robbie was jailed in 2006 for child abuse. I’m too tired to fight. How do you find an attorney when those hired by the state to work on behalf of the kids say it’s too hard to go up against the system?”

awareness, child custody, child death, child welfare reform, foster care abuse, cps, domestic violence, family, foster care, foster child, government, healing, law, legal, love, parental alienation syndrome, system failure
Hostile? Leave the kids out of it…

It is the responsibility of the parents to not alienates the child from the noncustodial parent. Those around the child can make or break a child.

It is the family members, co-workers, friends, neighbors, school & court officials, social workers, doctors, etc., who recognize the signs of this type of abuse and take the appropriate action that protects the child and victim parent.

Those people surrounding the child may save a life…

The effects of this abuse can be more than a little bit harmful, but extremely detrimental, and even deadly.

If you haven’t read my story, you can find it here –Its Almost Tuesday, The True Story.

Children deserve their childhoods to be free of abuse…

The effects are devastating and may not be immediately noticeable, but long-term and lasting…

photo-059.jpg

 

What is implacable hostility?? (Source: Wikipedia):

After separation or divorce implacable hostility denotes the attitude shown by one parent to another in denying access to, or contact with, their child(ren).What differentiates implacable hostility from the typical hostility that may arise after separation/divorce is that the deep-rooted nature of the hostility cannot be justified on rational grounds and measures taken by third parties including mediators and the family courts are to no avail.

Cases of implacable hostility are increasingly being seen as domestic violence and as a human rights abuse if not recognized by agencies involved, although it is important not to classify hostility as implacable if it is itself justified by domestic violence perpetrated by the other parent.

 

Implacable hostility is akin to Parental Alienation Syndrome; but is not the same condition.

The typical outcome of situations of implacable hostility is that the parent to whom implacable hostility is directed becomes excluded from the life of their child(ren). There are two ways in which this exclusion arises.

Firstly, the excluded parent, having exhausted all the avenues available for resolving the situation, finally gives up the effort. This may be done in the belief that the option of withdrawal is best interests of the child(ren) given the stress that inevitably arises from repeated applications for access/contact.

Secondly, the child(ren) may become parentally alienated — they deny that they want to see the excluded parent. Once a child has become alienated from the excluded parent, the originating implacable hostility becomes subsidiary. From this point, the formerly implacably hostile parent often claims that they are supportive of access/contact but they have to respect the wishes of the child.

Family courts are usually unwilling to force children to see one of their parents against their expressed wishes – and often fail to examine the cause of such statements.

Most often the child is who is harmed.


(more…)

child death, child welfare reform, foster care abuse, cps, education, family, foster care, foster parent, government, law, legal, missing child, murder, system failure
Caseworkers changed, destroyed records in starvation case

 

Documents: Counties changed, destroyed records in starvation case

(AP)

Caseworkers from two neighboring counties and a state agency doctored or destroyed records pertaining to a 4-year-old girl whose starved body was found stuffed into a picnic cooler, according to a newspaper’s review of court documents.

One caseworker testified in a pretrial deposition that her supervisor ordered her to burn records pertaining to the girl, Kristen Tatar.

“And make sure that you sit down with a glass of wine and a box of Kleenex when you burn Kristen’s” records, Penn State Cooperative Extension worker Pam Walmsley testified in a deposition detailing her supervisor’s instructions. “And get it out of your system and move on.”

Tatar’s 11 1/2-pound body was found stuffed into the cooler that had been set on a curb for trash pickup behind her Armstrong County home in August 2003. Her parents, James Tatar and Janet Crawford, are serving life sentences for starving her to death.

Criminal investigators determined the couple grossly underfed the girl, who was often tied to a chair with a pacifier in her mouth and rarely bathed or nurtured.

The horrific details of Tatar’s life and death are scheduled to receive a second, more detailed airing in April when a federal judge in Pittsburgh hears a wrongful death lawsuit brought by the girl’s aunt, Cathy Fondrk. Fondrk, of Hyde Park, has adopted Kristen’s surviving brother and sued her parents and various child welfare agencies on behalf of the boy.

The Pittsburgh Tribune-Review on Wednesday reported that documents filed in the case reveal that Armstrong County officials admitted that they added details to Kristen’s case file after police found her body.

But Armstrong County officials are convinced that Westmoreland County officials also doctored records. Armstrong County has hired a chemist who will testify that dates and signatures on various forms don’t match, based on his analysis of the ink used.

A key issue in the case is whether Westmoreland officials should have warned Armstrong County that the girl was at “high” risk for abuse, not “moderate” or “low” as various Westmoreland records reflected.

Fondrk sued caseworkers and officials in Armstrong County, where the girl died; the Westmoreland Children’s Bureau and some of its caseworkers who supervised Kristen case before her parents moved to Armstrong County in 2001; and the Penn State Cooperative Extension, whose employees helped Westmoreland County supervise the Tatar case.

Westmoreland County officials got a judge to declare the girl dependent and in county custody due to neglect, and twice placed her in foster care in 1999 and 2000.

Generally, the Armstrong County defendants contend Westmoreland County never relinquished jurisdiction in the case, even after Kristen’s parents moved with her to Armstrong County. Westmoreland defendants have argued in court papers that they did the best they could to supervise the girl, but were not ultimately responsible for her death in another county because Armstrong County caseworkers had begun supervising the case by then.

The state Department of Welfare in 2003 found that Westmoreland caseworkers failed to monitor whether Kristen was getting adequate medical attention and that “lax supervision” and “infrequency” of caseworker visits led to the girl’s death.

___

Information from: Pittsburgh Tribune-Review, http://pghtrib.com

domestic violence, family, foster care, foster parent, healing, law, legal, missing child, murder, system failure
Schaefer: Trial by jury needed to remove child

Sunday, December 2, 2007
Last modified Thursday, November 29, 2007 9:03 AM EST

Schaefer: Trial by jury needed to remove child
By Tom Law

Source: The Toccoa Record

State Sen. Nancy Schaefer last week called for an overhaul of the state’s child protection services provided through the Department of Family and Children’s Services (DFCS).

Among the recommendations by Schaefer, who represents the 50th District which includes Stephens County, was that a jury trial be held when a child is taken from their parents.

Schaefer also called for the requirement of a warrant signed by a judge before removing a child from their parents, except in an emergency situation such as a medical crisis.

“The Department of Family and Children’s Service, known as the Department of Child Protective Services in other states, has become a protected empire built on taking children and separating families,”

Schaefer said in a lengthy e-mail…

“This is not to say there are not children who do need to be removed from wretched situations and need protection,”

Schaefer said.

“This report is concerned with the children and parents caught in legal kidnapping, ineffective policies and DFCS that does not remove a child or children when a child is enduring torment and abuse.”

Schaefer offered as an example an unnamed county in her district where she met with 37 families to discuss the “gestapo” tactics of the DFCS.

“I witnessed the deceitful conditions under which children were taken in the middle of the night, out of hospitals and off school busses,”

Schaefer said.

“Having worked with probably 300 cases statewide, I am convinced there is no responsibility and no accountability in the system.”

Among Schaefer’s conclusions:

  • Poor parents are targeted to lose their children because they do not have the wherewithal to hire lawyers and fight the system.

“Being poor does not mean you are not a good parent or that you do not love your child or that your child should be removed and placed with strangers,”

Schaefer said.

  • All parents are capable of making mistakes and that making a mistake does not mean children should be removed from the home.
  • Parenting classes, anger management classes, counseling referrals, therapy classes, etc. are demanded of parents with no compassion by the system while they are at work and while their children are separated from them.
  • Caseworkers and social workers are often guilty of fraud.
  • “They withhold evidence. They fabricate evidence and they seek to terminate parental rights. However, when charges are made against them, the charges are ignored,” Schaefer said.
  • Separation of families is a growing business because local governments have grown accustomed to having taxpayer dollars to balance their ever-expanding budgets.
  • DFCS and juvenile court can always hide behind a confidentiality clause in order to protect their decisions.
  • There are no financial resources and no real drive to unite a family and help keep them together.
  • The incentive for social workers to return children to their parents quickly after taking them has disappeared.
  • The policy manual for DFCS is considered the last word.“The manual is too long, too confusing, poorly written and doesn’t take the law into consideration,” Schaefer said.
  • Children removed from homes may not be safer in foster care.“Children of whom I am aware have been raped and impregnated in foster care and the head of a foster parents association in my district was recently arrested because of child molestation,” Schaefer said.
  • Grandparents are not often contacted by DFCS when children are removed from homes.“Grandparents who lose their grandchildren to strangers have lost their own flesh and blood. The children lose their family heritage, and grandparents lose all connections to their heirs,” Schaefer said.Schaefer is calling for an independent audit of DFCS to expose possible “corruption and fraud.”She also called for immediate change. “Every day that passes means more families and children are subject to being held hostage.”Schaefer said any financial incentives to separate families should end, and parents should be given their rights in writing.She also called for a required search for family members to be given the opportunity to adopt their own relatives, and when someone fabricates or presents false evidence, a hearing should be held with the right to discovery of all evidence.
  • cps, families, family, foster care, government, law, legal
    New Revisions to CPS Handbook 2007 – Texas

    This revision of the Child Protective Services Handbook was published on November 1, 2007. Summaries of new revised items are posted below, followed by the edited versions with significant changes noted in red. Not displayed are minor copy editing and formatting changes.

    Baby Moses Cases

    The items listed below are revised to include:

      ·  the recent change in the law allowing CPS to file for termination of parental rights as a part of the original petition;

      ·  the presumption that the person who delivers the child to the designated emergency infant care provider is the biological parent, and intends to relinquish parental rights; and

      ·  criteria for determining whether or not a child born and left at a hospital constitutes a Baby Moses case.

    Changes made for style and clarification are not displayed in revision mode. See:

    2360 Baby Moses Cases

    2361 Criteria for a Baby Moses Case

    2361.1 A Harmed Infant

    2361.2 A Designated Emergency Infant Care (DEIC) Provider

    2362.3 When Someone Claims to Be a Parent or Relative of the Infant

    Correction

    Item 7244 is deleted to correct an oversight made during a revision in September 2006, when the information in Item 7244 was incorporated into 7460 Intermittent Alternate Care, Baby-Sitting, Overnight Care, and Respite Care.

    2360 Baby Moses Cases

    CPS October 2006 November 2007

    A Baby Moses case is a specific type of abandonment case in which an infant has been delivered to a designated emergency infant care (DEIC) provider and other statutory criteria are met. The purpose of this law is to encourage parents who might otherwise abandon a newborn in a dumpster or other unsafe place to deliver an infant safely to an appropriate facility. To encourage use of DEIC providers and to promote safety, parents who comply with this law are protected from child abandonment allegations or criminal penalties. Some infants that are delivered to a designated emergency infant care (DEIC) provider are a special subset within the abandoned child definition and are often referred to as cases under the Baby Moses law.

    Texas Family Code §§262.302; 262.303; 262.308; 262.309; and 263.407

    2361 Criteria for a Baby Moses Case

    CPS October 2006 November 2007

    An abandoned infant meets the criteria for a Baby Moses case if the infant:

      ·  is known to be or appears to be 60 days old or younger;

      ·  has not been harmed. See 2361.1 A Harmed Infant;

      ·  has been voluntarily delivered to a DEIC provider. See 2361.2 A Designated Emergency Infant Care (DEIC) Provider; and

      ·  is delivered to a DEIC provider by a person (presumed to be a parent) who does not express intent to return for the infant.

    When Statutory Criteria Are Not Met

    If the criteria for a Baby Moses case are not met (that is, the infant is more than 60 days old, was harmed, or was delivered to a location other than a DEIC provider by someone other than a parent) DFPS must handle the case as it would any other abandonment case. A thorough investigation must be completed, including diligent search efforts to locate parents and relatives of the child. See 2224.1 Thorough Investigations.

    When a Child Is Abandoned After Birth in a Medical Facility

    If a woman is admitted to a medical facility, gives birth, and leaves the medical facility without the baby, the case would be considered a Baby Moses case if:

      ·  the case meets the general criteria listed in this section;

      ·  the mother indicates in some direct manner that she is unwilling to parent the baby; and

      ·  there is no presumed father.

    If a woman is admitted to a medical facility, gives birth, and leaves the medical facility without the baby but does not indicate a deliberate intent not to parent, the worker handles the case as an abandonment case regardless of whether or not there is a presumed father.

    When Application of Statutory Criteria Is Unclear

    If it is unclear whether a case should be handled as Baby Moses case, the worker consults with supervisory staff, and the DFPS regional attorney. In some instances, the court may close the courtroom and maintain confidentiality as in a Baby Moses case, even though DFPS has determined there is not sufficient basis to terminate parental rights under the Baby Moses statute.

    2361.1 A Harmed Infant

    CPS October 2006 November 2007

    If a “harmed infant” is delivered to a designated emergency infant care (DEIC) provider, the situation is not a Baby Moses case.

    The definition of a harmed infant includes, but is not limited to, an infant who:

      ·  appears to have been abused;

      ·  appears to have been neglected; or

      ·  has a positive toxicology screen and other factors (such as the condition of the child) indicate that harm resulted from exposure to alcohol, drugs, poisons, or other substances.

    Exposure to Risk of Harm

    If an infant is abandoned at a DEIC provider in a manner that causes harm to the infant or exposes the infant to a risk of harm, the case does not qualify as a Baby Moses case. For example, if an infant is left in a remote location in or near a DEIC, where no one is likely to find the child or an infant is left where the child is exposed to severe temperatures or similar dangers, the case is not appropriate for handling as a Baby Moses case. 

    2361.2 A Designated Emergency Infant Care (DEIC) Provider

    CPS October 2006 November 2007

    According to the Baby Moses statutes, the following entities are DEIC providers:

      ·  an emergency medical services provider;

      ·  a hospital; and

      ·  a child-placing agency licensed by DFPS that:

      ·  agrees to act as a DEIC provider, and

      ·  has a licensed registered nurse or licensed emergency services provider on staff.

    Texas Family Code §262.301

    The following entities are not DEIC providers:

      ·  a DFPS office;

      ·  a police station; or

      ·  any other location that is not noted above as a DEIC provider.

    If a parent delivers an infant to an entity that is not a DEIC provider, or delivers an infant in a manner that is not safe, the case does not qualify as a Baby Moses case.

    If a woman is admitted to a medical facility and gives birth, then leaves the medical facility without the child, the case does not qualify as a Baby Moses case.

    2362 Investigating Cases Under the Baby Moses Law

    CPS October 2006 November 2007

    After making sure that the infant is safe, the investigator must should immediately determine whether this case meets all of the criteria for a Baby Moses case. See 2361 Criteria for a Baby Moses Case.

    In addition to performing the standard tasks for an investigation, the caseworker must take the following actions in every potential Baby Moses investigation:

      ·  Determine the facts surrounding the delivery of the infant to the facility: 

      ·  Know the specific location where the infant was found. If the location is outside the DEIC or in an out of the way location, take a photo of the location.

      ·  Obtain any available description of the person who left the baby, and any written or verbal information the person left.

      ·  Assess the health, age, and general well-being of the infant. This information may be necessary to determine whether the case should be handled as a Baby Moses case. 

      ·  Interview any persons at the designated emergency infant care (DEIC) provider who have information regarding the infant and obtain any form for voluntary disclosure of medical facts and history that was offered to and completed by the parent.

      ·  Notify the state office program specialist responsible for Baby Moses cases within 24 hours of initiating a Baby Moses investigation (excluding weekends and holidays).

      ·  Notify local law enforcement during the investigation and before the court renders an order to terminate parental rights that an infant has been abandoned under the Baby Moses law.

          Ask that law enforcement complete local and state law enforcement checks as well as National Crime Information Center (NCIC) checks to ensure that the abandoned infant has not been previously reported as a missing child. An NCIC check can generally be completed by a local law enforcement agency.

          If the local law enforcement agency cannot complete the NCIC check, fax a letter requesting the check to:

    Texas Department of Public Safety

    Fax: (512) 424-2885

          In the letter, the worker describes the infant, the city in which the infant was abandoned, and the known circumstances surrounding the abandonment. Include the worker’s name, address, phone number, and fax number.

          DPS will conduct an NCIC check to confirm that the infant has not been reported as a missing child.

    Texas Family Code §263.407(c)

      ·  Search the paternity registry no earlier than the 30th day after the infant’s estimated date of birth, but as soon as possible after that date. This must be completed before the court enters an order to terminate parental rights. See 5390 Bureau of Vital Statistics Reporting Requirements.

    Texas Family Code §263.407(c)

    2362.1 Legal Provisions

    CPS October 2006 November 2007

    There are several differences between a regular CPS investigation and an investigation conducted under the Baby Moses law.

    For Baby Moses cases it is presumed that the person who delivers an infant to a designated emergency infant care (DEIC) provider:

      ·  is the infant’s biological parent;

      ·  intends to relinquish parental rights and consents to the termination of parental rights with regard to the infant; and

      ·  intends to waive the right to notice of the suit terminating the parent-child relationship.

    Unless a court order requires it, DFPS does not attempt to identify or locate the parent of an infant left under the Baby Moses law, in order to protect the confidentiality of the parent.

    Texas Family Code §263.407(a)

    Similarly, DFPS does not conduct a search for the relatives of the infant, as this would violate the confidentiality protection provided to the parent.

    Texas Family Code §262.309

    When DFPS files a petition for a Baby Moses case, DFPS requests a closed hearing. Unless the court finds that the interests of the child or the public would be better served by opening the hearing to the public, the court orders the hearing to be closed. .

    Texas Family Code §262.308(c)

    Any pleading or other document filed with the court is confidential, is not a public record, and must not be released other than to a party in a suit affecting the child, the party’s attorney, an attorney ad litem, or guardian ad litem.

    Texas Family Code §262.308(b) and (d)

    All identifying information about a person who delivers the infant to the DEIC provider is confidential and must not be released other than to a party in a suit affecting the child, the party’s attorney, an attorney ad litem, or guardian ad litem. This section does not prevent DFPS from serving notice, when required, to a parent in a suit to terminate parental rights.

    Texas Family Code §262.308(a)

    Parents cannot be criminally prosecuted for abandoning an infant under the Baby Moses law.

    Texas Penal Code §22.041(h)

    2362.2 Disposition of a Baby Moses Case

    CPS October 2006 November 2007

    The intent of the Baby Moses law is to prevent parents from abandoning infants in unsafe locations.

    Although delivering an unharmed infant to a designated emergency infant care (DEIC) provider could otherwise meet the statutory definition of abandonment, the parent has abandoned the infant in a location that is legally designated as a safe haven.

    If a case meets all of the necessary criteria for a Baby Moses case because the infant was not left in a situation in which he or she would be exposed to harm, the case is not investigated as abandonment and the disposition of the case is Ruled Out.

    2362.3 When the Identity or Location of the Parent is Known

    CPS October 2006

    To avoid the risk of a termination decree being invalidated, it is as important to serve a parent with notice of a suit to terminate parental rights, as it is in any other case when DFPS knows a parent’s identity or location.

    Due process in such cases requires DFPS to serve the parent, unless the parent waives service.

    The notice may be served in person, or DFPS must make diligent efforts to locate the parent, and if unsuccessful the notice may be made by publication. See 5261 Diligent Search for Missing Parents.

    When serving notice to a parent in this situation, every effort should be made to keep the parent’s identity anonymous to the extent possible.

    Any questions about service should be referred to the regional attorney or the county or district attorney representing DFPS in the case.

    2362.3 2362.4 When Someone Claims to Be a Parent or Relative of the Infant

    CPS October 2006 November 2007

    Parent of the Infant

    If someone claims to be the parent of the infant before the court renders a final order terminating parental rights, DFPS must notify the court.

    The court is required by statute to order genetic testing to determine parentage, unless parentage has previously been established.

    Texas Family Code §263.407(b)

    Relative of the Infant

    If someone comes forward claiming to be a relative of the infant before the court renders a final order terminating parental rights, DFPS does not share any information with the individual except the cause number of the court case. DFPS informs the person that if he or she wants to be involved in the case, he or she must intervene in the court case.

    child welfare reform, foster care abuse, cps, family, foster care, health, lawsuits, legal
    Foster care abuse alleged


    Foster care abuse alleged

    Two brothers claim in a lawsuit that the state failed to stop their sexual and physical abuse.

    By LEONORA LaPETER
    Published October 13, 2004


    PINELLAS PARK – The two brothers grew up in separate foster homes, but both say they were abused again and again – physically and sexually – while in foster care in Hillsborough County.One brother said he was sodomized in three different homes. The other claimed he was also raped and forced to sit in his urine for hours or kept outside without food or water.

    Both brothers, Jesus de la Cruz and Sue F. Flores, claim in a lawsuit against the state Department of Children and Families filed in Hillsborough Circuit Court Tuesday that they told caseworkers about the abuse. But either nothing was done or they were moved to another bad situation year after year, the suit says.

    Jesus de la Cruz, now 24 and out of foster care for six years, stood in his lawyer’s conference room Tuesday and held up a poster board picture of himself as a toddler when he was placed into the foster system. Cruz, reeling from the loss of his premature 5-month-old daughter a few days ago, said he wanted to come forward to help other children.

    “This has been going on for a long time, … and I don’t want it to happen to any more children,” he said. “They didn’t look out for my safety. They weren’t protecting me.”

    A number of lawsuits have been filed on behalf of children who suffered abuse or neglect in the foster care system over the years. But they typically take years to litigate and many are dismissed because of a lack of evidence.

    “With these sort of lawsuits there are procedural hurdles that often prevent the court from getting to the substance of the issue, which is, that while the state had these children, they allowed them to get hurt,” said Gerard Glynn, executive director of the statewide children’s advocacy group, Florida’s Children First, in Orlando. “And the question is, should they be allowed to be made whole? … The state does everything in its power to avoid addressing that question.”

    DCF spokesman Andy Ritter said the agency had not yet received the brothers’ lawsuit, but department policy prevented him from commenting on it anyway. He said the department has a zero tolerance policy for any abuse in foster care homes.

    Asked if anything had changed at the agency since de la Cruz, the youngest brother, left the foster care system six years ago, Ritter said a department representative now visits all 29,284 children in the foster care system once a month.

    Joseph H. Saunders, attorney for de la Cruz and Flores, said the brothers’ case files are full of their claims of abuse but show little action on the part of the state to either investigate their plight or check into their foster families.

    “The failings of the department resulted from a lack of funding and inadequate staffing of the department,” said Saunders, a Pinellas Park attorney who has also handled some cases on behalf of victims alleging abuse by priests.

    Though lawsuits over abuse in the foster care system are difficult to win, some cases have resulted in judgments. Still, there is a statutory $100,000 cap on the state’s liability. Any judgment above that must be approved by the Legislature in a special spending bill.

    Some cases have been won by filing a federal civil rights lawsuit. One 16-year-old girl who was repeatedly raped by her foster father in Miami-Dade County beginning when she was 8 years old won a $650,000 settlement this way, said Karen Gievers, her Tallahassee attorney and president of Children’s Advocacy Foundation, a nonprofit organization set up to educate about children’s needs.

    De la Cruz, who is now disabled from a car accident, was first placed into a foster care home when he was about 3 years old because his mother, who had six children, was an alcoholic who left them unsupervised and without food, the lawsuit says.

    In his second foster care home when he was 7, he claims he was sodomized and his sister was raped by another older son of the family.

    In all, he was moved about a dozen times to foster homes in Brandon, Tampa and Plant City and sexually abused by different people when he was 10 and 14. De la Cruz’s sister, who was placed with him, is not part of the lawsuit, and he said he had not seen her in some time.

    The other brother, Flores, now 32, was placed in 16 different foster homes. He was not present at the news conference in Saunders’ office Tuesday. But he claims he was sexually abused beginning when he was 9. He said he informed his counselor, but no one believed him, the lawsuit says.

    De la Cruz said he also faced disbelief on the part of his caseworkers. They continued to write reports that indicated the abuse was unfounded.

    “I was very afraid and I couldn’t trust nobody,” said de la Cruz, who attended Sickles High School in northwest Hillsborough County. “I felt no one believed me, No. 1 because I was a boy.”

    He said he had not sought criminal charges against any of the people he claims abused him, but Saunders said he might do so in the future.

    He said the abuse has scarred him emotionally and made him question his sexuality, “whether I was going to be gay.”

    “I had a lot of anger and I took a lot of therapy,” he said. “If it weren’t for therapy, I’d probably be one of them (an abuser).”

    [Last modified October 13, 2004, 00:37:14]