The court found that state and local officials who removed the children during a child abuse investigation may have acted improperly but were protected by government immunity. But the court set out new legal requirements for child abuse investigations in the three states covered by its jurisdiction — Louisiana, Mississippi and Texas. "The decision will require us to make some extremely difficult decisions," said Carey Cockerell, commissioner of the Texas Department of Family and Protective Services in an "urgent legal advisory" sent Friday to all Child Protective Services personnel. The memo, obtained by the Houston Chronicle and San Antonio Express-News, said the new policies must be followed to protect staff from being sued for monetary damages if children are removed in violation of the new policies.
In the majority of cases, the department removes based on immediate danger and then goes to court the next business day to ask a judge for an order to remove the child. Under the new standard, the state must obtain parental consent or a court order prior to removal "unless life or limb is in immediate jeopardy or sexual abuse is about to occur," the memo states. Additionally, investigators now must weigh factors for each child living in a home before removing any of them based on allegations of abuse involving another child. The standard practice of removing all children in a household when abuse was suspected on any single child was the basis for removing more than 400 children from a West Texas polygamist group in April.
The Texas Supreme Court in late May held that removing all the children was not justified based on allegations that a few underage girls were married to older men. Another key change discussed in the memo involves when CPS can take a child from school to a neutral location such as a Children's Advocacy Center for an interview. The new policy requires parental consent, a court order or the belief that the child has been abused and probably will suffer further abuse upon his or her return home at the end of the day. Prosecutors and child advocates are worried that children will be left in dangerous situations, while parental rights groups are applauding the changes.
Williamson County District Attorney John Bradley said he believes the department's new policies are an overreaction to the ruling and will leave children unprotected. "What we didn't need to do was raise the white flag in a memo to every CPS worker to simply protect CPS rather than protect children," he said. He said it will be more difficult to prosecute child abusers if child victims can't be questioned separately from their abusers. "You have to have a safe place apart from the family to successfully interview a child and find out what happened," Bradley said. Gary Gates, the Fort Bend County man whose lawsuit prompted the revisions, said the changes will protect families from having their constitutional rights violated.
"The whole reason we started the litigation was because we felt there were wrongs in the system," said Gates, an apartment building owner and founder of the Texas Center for Family Rights. Thomas Sanders, the Sugar Land attorney who represents the Gates family, said the lawsuit was never about winning monetary damages from the state. "He was looking for policy change," Sanders said. Richard Wexler, executive director of the Virginia-based National Coalition for Child Protection Reform, said it's not that difficult to get a court order for removal. He said the new policies will give investigators "a chance to stop and think whether there is something that can be done that is less traumatic to the child" than removing them from their home.
The Gates family claimed state and local officials violated their rights when their children were removed from their home during a child abuse investigation. The investigation began in 2000 after a 10-year-old son arrived at school with a plastic baggie containing empty fig bar wrappers pinned to his shirt. According to the court opinion, Gates was punishing the boy who had an eating disorder that caused him to steal and gorge on food. When school officials called CPS, the boy was taken to a Child Advocacy Center for a videotaped interview. After other siblings told of unusual discipline, all were removed in a "jail wagon" that evening.
Gary and Melissa Gates said they never abused their children and a court ordered them returned home a few days later. The state dropped its investigation seven months later. The federal appeals court said it is important to involve the state courts as neutral magistrates in decisions whether to remove children as early in the process as possible. "In that way, the government may ensure that everyone's interests are considered, and the least amount of harm will come to the children the government seeks to protect, as well as their parents," said the opinion by Judge Edward Prado.