Texas laws favor parents in child abuse investigations as they limit number of kids in foster care

BySneha Dey, The Texas Tribune
Thursday, June 29, 2023
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Faced with a troubled foster care system and a 12-year-long lawsuit for putting children in state custody at risk, Texas legislators this year made sweeping changes to state agencies that look after vulnerable kids removed from their homes.

But legislators' focus was less on conditions for children in the system and more on reducing the number of kids entering state care. The Legislature zeroed in on how child abuse investigations kick off and play out, making it harder for the Department of Family and Protective Services to remove children from homes, saying parents facing abuse accusations are entitled to more rights.

While lawmakers ironed out new policies on investigations to prevent kids from entering the system, they stuck to basic fixes for children already in the state's care. In one instance, they mandated the state provide foster kids duffel bags and backpacks - instead of trash bags - to transport their belongings.

For years, the state has been entangled in a federal lawsuit for putting children in state custody at risk. The judge in the case first declared in 2015 that children age out of the system more damaged than when they enter. Since then, court watchdogs have found that caretakers misused psychotropic drugs, residential facilities housing kids were not in compliance with safety standards and that the state child welfare agency was not tracking child-on-child abuse.

Some of the biggest bills regulating the state's foster care system this year focus on keeping kids with their families when possible, pointing to the trauma that comes with entering the system. As a result, caseworkers will have to document their efforts to keep a child with their family; the state abuse hotline will no longer accept anonymous tips against parents; and parents facing abuse and neglect accusations will see bolstered legal rights and legal representation.

"We're in a period in history right now where things are swinging very much towards having the smallest possible system, really prioritizing parents' rights," said Sarah Crockett, the director of public policy at foster kid advocacy group Texas CASA.

It's an approach supported by both social conservatives who tout family values and progressive child welfare abolitionists who want to do away with the system. At the state and federal levels, these child welfare advocates have backed policies that help children stay with their families and limit them from entering the foster care system.

"The language being used is now much more uniformly centered around family preservation, which is a massive culture shift," said Andrew Brown, a policy advocate at the conservative Texas Public Policy Foundation. "I'm hearing more mainstream conversations about the trauma of removal."

The focus on parents facing investigations also aligns with a fast-burgeoning movement within the Republican Party to give parents more rights in everything from using tax dollars to subsidize private school tuition to limiting what lessons kids can receive from teachers.

But limiting when and how the state can intervene is being met with some anxiety.

"This system is traumatic and stressful for children and parents. I absolutely do think that we should do everything that we can to keep the child with their family," Crockett said. "And it's also true that child abuse is still happening. And so how do we balance those two things? I think it's not straightforward, and that's what makes it really hard."

Limiting how Texans make child abuse and neglect tips

Texans can currently file an anonymous tip about potential neglect or abuse with the state's child abuse hotline or online report tool. The anonymity can protect those afraid of retaliation. Anonymous tips can also open the door for false reports, lawmakers have said. About 1,000 of the 12,473 anonymous reports made in 2022 led to findings of abuse, according to Texans Care for Children.

House Bill 63 ends anonymous reporting of child abuse or neglect, marking a sea change in how investigations are initiated. The bill will require DFPS to obtain the caller's identity, though all reports will be confidential. It takes an extreme approach to weeding out false reports.

The new law, which will go into effect in September, is expected to lower the number of tips the child abuse hotline gets and reduce the number of parents entangled in a child abuse or neglect investigation.

The bill got the governor's support but faced some pushback during the legislative process. Sen. José Menéndez, D-San Antonio, raised concerns that an end to anonymous reporting would keep people from calling in reports of abuse.

"None of us in this room want any child to suffer abuse or neglect. And I would hate for us to vote for a policy where the tradeoff is ... [having] a child possibly die from abuse or neglect," Menéndez said on the Senate floor.

With the ban on anonymous reports, Texas joins at least 19 other states that already require mandatory reporters like teachers and day care employees to provide their names and contact information, either at the time of the initial oral report or as part of a written report, according to the federal Children's Bureau.

Overhauling child abuse investigations

Early in a child abuse investigation, child welfare investigators will make contact with the accused parents who can then face multiple rounds of interviews, drug tests and home inspections.

Parents will face intense scrutiny throughout the investigation, the outcome of which will determine whether the child stays with family or enters the foster care system.

Under House Bill 730, caseworkers will have to notify parents accused of abuse or neglect of their legal rights, such as their right to an attorney and their right to refuse to answer questions. It's similar to how police read Miranda warnings to criminal suspects.

The foster care system is adversarial to parents accused of abuse and neglect, particularly in how caseworkers approach investigations, Julia Hatcher, a family defense lawyer in Galveston, said. Caseworkers have aligned themselves with police officers in their interactions with families, Hatcher said.

"They show up and interrogate parents and they try to collect evidence like getting medical records, interviewing children, requiring drug tests, threatening them," Hatcher said. "That's what a cop does. ... We're saying, 'OK, if you're going to act like a police officer, we're going to start treating you like one and now you're going to have to give everybody their rights.'"

Texas lawmakers have nodded to family preservation in prior sessions. In 2021, they passed House Bill 567 that barred DFPS from removing children in nonemergencies. The bill also established a new definition of neglect that prevented parents from losing their child solely because of marijuana use.

If a parent refuses to be interviewed by an investigator or denies an investigator entry to their home, the investigator can ask a judge for a court order requiring access. Under this year's HB 730, DFPS will have to show probable cause, which requires more evidence than the current standard, to get that court order.

When DFPS investigators determine there's enough evidence of abuse or neglect to remove a child from their family, the case then goes in front of a judge in court. Parents involved in DFPS cases at this stage are supposed to be appointed attorneys if they can't afford one.

Senate Bill 2120 will require attorneys appointed to represent low-income parents to have certain qualifications. It was born out of a recommendation from the Texas Judicial Council, said Sen. Judith Zaffirini, D-Laredo, who authored the bill.

And for the judge to grant removal, the state will have to meet more checkpoints after this year's session. House Bill 1087 will require the investigators to clearly document all reasonable efforts they made to keep the child with the family in court affidavits.

Elizabeth Spears, an attorney who has represented kids and parents in DFPS cases, fears that children experiencing abuse will stay in their unsafe homes for longer.

"The failing in the laws is that the standard is so high now for a child to be removed," she said.

More state money for programs preventing abuse

Extra state dollars will go toward stopping child abuse and preventing families from interacting with Child Protective Services altogether.

There's a wing of the Department of Family and Protective Services, known as prevention and early intervention programs, that is designated to prevent child abuse and neglect by investing in wraparound services for at-risk families across the state. Wraparound services can be parenting classes, home visits from nurses for pregnant moms or short-term counseling.

That wing saw historic investments this year, at a $65 million increase, according to Kate Murphy, the director of child protection policy at Texans Care for Children. That comes from a record state budget surplus.

"It sends a very clear message that the Legislature is interested in keeping kids safe with their parents out of the foster care system," Murphy said.

This long-awaited funding was approved alongside a law that transfers the prevention wing from DFPS to the Health and Human Services Commission.

Senate Bill 24 is largely a governmental administrative move, but advocates say it indicates where the Legislature is headed - toward a whittling down of DFPS responsibilities to investigations and contract management. The agency is already in the process of outsourcing the management of foster kids' cases to local, private providers through what's called the community-based care model.

"What we are seeing a lot of is a real shift in the future of the child welfare system and the future of DFPS. DFPS is going to be just doing investigations and then overseeing community-based care," Crockett said. "I think that the agency itself has been so plagued for so long in scandal and hardship and the Legislature is really looking for, 'How can we move beyond just a constant crisis into something different?'"

For foster kids, bank accounts and duffel bags

Legislators took a different approach to children already in the foster care system, opting to fill some gaps in support.

House Bill 3765 will require the state to provide every child a duffel bag or backpack once they have been removed from their homes. It cruised through the legislative process. The reality of the state's most vulnerable children receiving only trash bags for their belongings was so disturbing that it was approved by a landslide.

It's the first time a bill like it has been filed, but Rep. Josey Garcia, D-San Antonio, said it was long-awaited for former foster kids like herself. When Garcia was placed in her first foster home 35 years ago, she recalled being given a trash bag to contain her few belongings: a copy of the Bible and two outfits, one in pink and the other in blue.

"By showing this simple gesture of providing a cloth bag for them, you have no idea how much you are going to touch these children who have been treated like trash," said Garcia, who bounced between foster homes growing up. "You're telling them they're worth more than the trash bag their belongings are in."

About 39% of Texas foster kids experienced three or more placements in 2021, according to the Adoption and Foster Care Analysis and Reporting System. They may encounter dangerous conditions at these placements. Court monitors in the federal lawsuit against Texas have compared a handful of foster homes to "jail cells."

For foster kids about to age out of the system, Senate Bill 1379 directs the state to help them set up checking and savings bank accounts. The legislation aims to help kids in state custody establish financial security as they transition to adulthood.

When young adults formerly in foster care were eligible for federal pandemic relief money, many Texans could not access the stipend because they did not have bank accounts to deposit the checks.

"We know that bank accounts can be a barrier to even getting certain jobs. Because if you don't have a bank account and you can't get a direct deposit, they might not be set up to pay you," Murphy, with Texans Care for Children, said. "This bill is really just to help fill that basic need."

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