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By Sarah Foster
Posted 1:00 AM Eastern
June 24, 2009

AUSTIN – In a move that has parents and children’s rights advocates cheering, Texas Gov. Rick Perry on Friday vetoed Senate Bill 1440, a contentious measure designed to make it easier for the state Department of Family and Protective Services (DFPS) to remove children forcibly from their homes for interrogation and examination during investigations of alleged child abuse or neglect.

In his veto statement the governor said the bill “overreaches and may not give due consideration to the Fourth Amendment rights of a parent or guardian.”

The governor’s action was the result of an intense veto campaign spearheaded by the Parent Guidance Center, an Austin-based grassroots organization that helps low- and middle-income families caught in the snares of the state’s child welfare and protection systems.

Launched by PGC co-founders Johana Scot and her sister Judy Powell as soon as the bill was passed on May 30, the three-week campaign mobilized an opposition that cut across political lines, generating 17,373 letters and phone calls to the governor’s office from concerned Texans and their sympathizers across the country, according to spokeswoman Allison Castle.

That count does not include the thousands of messages sent to state lawmakers who had voted for the bill in the first place, asking them to contact the governor and urge a veto.

There were 455 messages in support of the measure, requesting the governor to sign.

“A Collective Sigh of Relief”

“It’s a sweet victory,” Scot told NewsWithViews, adding that the recent NewsWithViews article on SB 1440 had been widely distributed and may have helped “tip the scales” in the governor’s decision making.

“Texas families can breathe a collective sigh of relief,” she said in an announcement.

Among those urging a veto was Republican Rep. Jerry Madden, who had sponsored SB 1440 in the House after it passed the Senate. In the final days of the legislative session Madden agreed to attach another bill – SB 1064 – as an amendment to SB 1440 a non-controversial, unopposed measure that had been placed on the Local and Consent calendar for automatic passage.

SB 1064 was one of dozens of measures that died on the calendar when time for debate ran out. Madden was assured by Democratic Rep. Patrick Rose, chairman of the House Human Services Committee, that like SB 1440 the bill was non-controversial and unopposed.

A written statement of opposition submitted by Judy Powell – communications director for PCG -- had disappeared.

When Madden later learned that SB 1064 was anything but non-controversial, was not unopposed, and radically changed SB 1440, he e-mailed Tim Lambert – president of the Texas Home School Coalition -- apologizing for his role in the fiasco:

“I would not have taken[n] any amendment to SB 1440 if I thought it in any way endangered the original contents of the bill,” Madden wrote. “We did not catch the fact the bill had changed significantly from the Senate passed version and that is our fault. As always I appreciate you and your work and expect the bill to be vetoed.”

Madden followed his e-mail to Lambert with a letter to the governor urging a veto.

Disappointed supporters – which included news reporters – insist the bill was intended merely to “clarify” rules on court hearings and criteria DFPS agents must meet to enter a house, remove a child, or review a child’s medical records, and that it didn’t grant the CPS additional authority.

“In simple terms, [SB 1440] clarifies the process for DFPS to obtain a court order that can aid in investigation of child abuse and neglect,” said Tina Amberboy, executive director for the Supreme Court Permanent Judicial Commission for Children, Youth and Families – as reported by The Facts, a Brazoria County newspaper.

“The current statute allows DFPS to obtain an order, but the statute is vague with regard to how an investigator actually goes about getting the order,” she said.

Two Court Rulings

In fact, the Texas Supreme Court and a federal appeals court (Fifth Circuit) clarified the statute and “process” a year ago in two major decisions that essentially told the DFPS to change its policies. The purpose of the bill was to undermine those rulings and reverse the department’s new procedures.

As Tim Lambert put it: “The intent of SB 1440 is to create numerous ways to avoid the courts, in direct opposition to the mandate by the Fifth Circuit.”

The first case involved the infamous DFPS raid on the West Texas ranch owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) and the seizing of over 400 children. The Texas Supreme Court ruled that the “removal of the children was not warranted,” and upheld a lower court decision that the department had violated various state laws and not made “reasonable efforts to eliminate or prevent the removal of the … children.”

The second was that of Gary and Melissa Gates, whose 13 children had been removed from their home by CPS without a court hearing or probable cause. The Fifth Circuit Court of Appeals agreed that the law “was not clearly established” and should be clarified – particularly with reference to the Fourth Amendment protections -- and that’s what it did. The Court concluded:

“… now that we have clearly established the law in this area, we expect that TDPRS, law enforcement agencies, and their agents and employees will abide by these constitutional rules and seek to involve the courts, who act as neutral magistrates in these complicated matters, as early in the process as is practicable.”

[NOTE: Texas Dept. of Protective Regulatory Services (TDPRS) was the name of the Dept. of Family and Protective Services when the Gates case began.]

Responding to the rulings, DFPS made significant changes in procedures. A legal advisory memo – sent out to the staff shortly after the Gates’ decision was handed down -- shows that DFPS officials understood perfectly what they had to do (and could no longer do) and did not think the ruling was vague or needed clarification.

The decision “sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home” and also “clarifies” that if this standard is not followed, staffers could be sued as individuals and lose qualified immunity.

DFPS’ Remarkable Job

That was just the beginning. A year later, in her call for a veto posted on the PCG website, Johana Scot noted approvingly:

“The Texas Department of Family and Protective Services (DFPS) in turn did a remarkable job after these rulings by changing, adjusting, re-educating, and clarifying their Policies and Procedures Hand-Book and employees knowledge so that these rulings would be upheld and their work in investigations and with families could be improved. DFPS was on the right track and they were getting the message!”

SB 1440 -- would have placed “all that work in jeopardy as well as the efforts by DFPS to rectify how they are supposed to protect children and help families,” she wrote.

Gov. Perry chose to veto SB 1440 so that was stopped – but in his veto message he said he’d be directing DFPS though its parental advisory committee, “To develop and recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families” – which is already being done.

A Smigen of Victory

Commenting on the veto Richard Wexler, executive director of the National Coalition for Child Protection Reform, called it “Very good news for Texas children” – because it’s the children who are most hurt by CPS policies that forcibly remove them from their families and subject them to intrusive questioning and examination.

“The problem with the bill is what it would have done to the Fourth Amendment rights of children,” Wexler writes.

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“But there are limits to this victory. I said in a previous post that the bill effectively reduced the amount of evidence needed for CPS to enter a home from a smidgen to a tenth of a smidgen.

“Now, if we can just increase the standard to, say, two or three smidgens,” he said.

Earlier Story

Sarah Foster: Coalition Asks Texas Governor to Veto "Take Away Your Child Act": June 18, 2009

Related Articles / Resources

1 - Executive Order: Veto
2 - Press Release from Gov. Perry's Office
3 - SB 1440: An Act relating to orders and judgments rendered by associate judges in child support and child protection cases and to the investigation of child abuse and neglect.
4 - FLDS Decision: Texas Supreme Court, May 29, 2008
5 - Gary and Melissa Gates v. Texas Dept. of Protective and Regulatory Services: U.S Court of Appeals, Fifth Circuit, July 28, 2008
6 - DFPS MEMO, dated August 22, 2008, “TO: All CPS Personnel; FROM: Carey Cockrell, Commissioner and Joyce James, Assistant Commissioner, CPS, through Gerry Williams, General Counsel; Subject: URGENT LEGAL ADVISORY FOR INVESTIGATIONS.”
7 - Richard Wexler: Texas Supreme Court Clarified Child Protection Laws, but SB 1440 Undermines Them: Fort Worth Star-Telegram, June 18, 2009
8 - Richard Wexler: A Smigeon of Victory for Texas Children:, June 19, 2009

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Sarah Foster is a researcher and freelance writer:











The decision “sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home” and also “clarifies” that if this standard is not followed, staffers could be sued as individuals and lose qualified immunity.