|Kidjacked » legal » tx_sb1440.asp|
Coalition Asks Texas Governor to Veto "Take Away Your Child Act"
By Sarah Foster
Update: Sweet Victory —
Those phone calls and letters to state and federal leaders paid off big time. Kidjacked thanks those who lent their voices and pens to help bring about this success.
It's been just over a year since the Texas Child Protective Services, acting on a hoax phone call, launched a military-style raid against polygamist families of the Fundamentalist Church of the Latter Day Saints (FLDS) at their West Texas ranch, seizing 440 children that they placed in foster homes scattered across the state.
Six weeks later, in a May 22 decision, a state appeals court ruled that CPS acted illegally and had no right to take many, if not all, of the children, and ordered them returned to their parents. The state never provided evidence that the children were in immediate danger, the only grounds in Texas law for taking children from their parents without court approval, the appeals court said. On May 30, the Texas Supreme Court upheld the lower court decision.
Today, parents and children throughout Texas are in greater danger than ever, thanks to a recently passed child-protection measure by Democratic Sen. Kirk Watson — Senate Bill 1440 — that expands the powers of the Department of Family and Protective Services (DFPS) to make it easier to remove children from their homes and families for investigation of alleged child abuse or neglect.
It's been dubbed the "Take Away Your Child Act."
"SB 1440 would legalize what they [CPS] did to the FLDS families," says Johana Scot, co-founder and executive director of the Parent Guidance Center, an Austin-based grass-roots organization that helps low-income families deal with the CPS and other arms of the state child welfare system.
"It would not be retroactive, but it would make it possible and legal for CPS to do it again," she added, "and they could absolutely target them again -- only next time they'll know how to dot their I-s and cross their T-s."
Veto Campaign Launched
Passed as a last-minute amendment attached to a non-controversial bill that many lawmakers supported, during the final days of an unusually frenetic legislative session, SB 1440 has ignited a firestorm of opposition and drawn together a politically diverse coalition of family and children's rights advocates who are urging Gov. Rick Perry to veto the highly controversial measure.
The governor has until June 21 to sign or veto the bill — or, he can simply not sign it and the bill will automatically become law without his signature.
"We're giving Gov. Perry the opportunity to do the right thing and veto this bill,"
said Scot, who with her sister Judy Powell, launched the veto campaign as soon as SB 1440 was
approved by the House on May 30.
Fourth Amendment Rights Threatened
Critics say the new law violates the right of individuals "to be secure from unwarranted searches and seizures" -- a right guaranteed protection by both the U.S. and Texas constitutions.
"It seems like we're throwing the Fourth Amendment under the bus," said Tim Lambert, an attorney and president of the Texas Home School Coalition, at a recent press conference. "It completely undermines parental rights."
As Lambert put it, SB 1440 "lowers the bar on the legal standard currently required for CPS to prove to the judge that they have good cause shown to force parents to waive their Fourth Amendment rights."
Letter to the Governor
On Monday the Texas Home School Coalition hand-delivered a 21-page letter to the governor outlining the reasons for a veto. Lambert describes it as "a long and detailed legal argument that clearly shows why this bill must not become law."
The letter is signed by a number of organizations, which in turn forwarded it to their supporters asking that they contact Perry's office and request a veto. These include the Texas Center for Family Rights, the Libertarian Party of Texas, the Republican [Party] Liberty Caucus of Texas, Eagle Forum of Texas, the Free Market Foundation and others.
Many of the groups opposing SB 1440 are clearly conservative or libertarian, but opposition is by no means limited to the right side of the political spectrum.
"Bills Like This Stink"
For instance, there's Richard Wexler, executive director of the National Coalition for Child Protection Reform — a nationwide organization of child welfare professionals working to change policies concerning child abuse, foster care and family preservation.
Wexler reports there are a "whole lot of groups like NCCPR — filled with lifelong liberals — who think bills like this stink because they undermine children's rights."
Says Wexler: "Children have a right not to be traumatized by police and CPS workers based on no more than an anonymous call. Children have a right not to be strip searched for no reason. And, most of all, children have a right not to be torn from everyone they know and love and exposed to the emotional trauma, and serious risk of physical or sexual abuse in foster care, based on no more than a caseworker's guess."
Regarding SB 1440 Wexler writes: "Current law already allows CPS 'to immediately enter the home and, if necessary, remove the child and secure medical and mental-health records as part of an investigation ... without notifying the parent in advance.' All the worker has to tell a judge is that a child is at imminent risk of mistreatment — and under some circumstances the worker doesn't need to go to a judge at all. The worker need offer only what amounts to a smidgeon of evidence.
"What the new law does is lower the required amount of evidence to about one tenth of a smidgeon. And no longer would there be a requirement that the child be in imminent danger before allowing a CPS raid without a hearing first."
"Aid in Investigation"
Johana Scot discussed the bill with NewsWithViews and some of its changes to existing law.
SB 1440 authorizes a judge to issue an order "assisting investigation" — based on the likelihood that there is a "fair probability" (rather than "good cause"), that the allegations [of abuse or neglect] will be sustained.
"We call that the 'I swear that what I am about to find is true' clause," said Scot.
She described the difference between an aid-in-investigation order and a search warrant.
As she explained: "Proponents say [an aid in investigation order] is like a search warrant — but for a search warrant you have to list what you're looking for. With this, you don't. You don't have to say 'Well, the accusation was a filthy dirty house, so we're looking to see if they have electricity and plumbing. There's really no comparison to a search warrant. There's no requirement to list — all you have to tell the judge is: 'The kids are not cooperating, the parents won't let me in the house and I need an order to allow me to go in and aid in my investigation.'"
NewsWithViews.com asked: "In other words, agents can go to a judge and say the yard looks awful and the kids are dirty — they can go to a judge with that for an aid-in-investigation order?"
"Absolutely," Scot answered.
Scot also told NewsWithViews how SB 1440 was shepherded through the legislature — a stealth operation that has caused almost as much of an uproar as the provisions of the bill itself.
First, Democratic Sen. Kirk Watson introduced two fairly innocuous bills early in the session: SB 1440 and SB 1064. SB 1440 was designed to expedite an uncontested judicial order pertaining to child support or child protection. No red flags there. It passed the Senate on April 16 by a voice vote, 31-0.
SD 1064 dealt with allowing CPS to have access to all the medical or mental health records of a child who is the focus of an investigation, but the parents were to be given notice and a court hearing. Again, no red flags — but Scot says she and her sister Judy Powell — co-founder and communications director of the Parent Guidance Center -- were watching it.
The game got serious at the committee hearing, when Sen. Watson had his bill amended to include more language — and suddenly SB 1064 was a different bill. It was zipped through the hearing, then to the floor where the new version — now called Committee Substitute SB 1064 — was unanimously approved and sent it to the House of Representatives.
"That's when we caught it, because it had his new language in it," Scot recalled.
A hearing in the House Human Services Committee was set for May 14, and Judy Powell was there with a written testimony in opposition, which she submitted along with a card she filled out saying she wished to speak against the measure. But no testimony was taken. The two sisters assumed the hearing would be in the evening — but that didn't happen.
The following day, the House voted to continue the hearing that evening. There's a rule in
legislature that there must be a five-day advance notice of a hearing — but the House
can waive the rule, which it did, and the Human Services Committee hearing was quietly held
May 15, in the evening, with HR 1064 being approved. Scot and Powell were stunned — but
at least they were on the record as being in opposition.
At that point, the legislative process came close to a standstill as Democrats used a stalling tactic to prevent a Voter ID bill from coming to a debate. It worked — but a number of bills died on the calendar. CSSB 1064 was among them.
That's when the game got really down and dirty. SB 1440 was on the Local and Consent Calendar — having passed the Senate and there being no opposition in the House. This meant SB 1440 could be designated non-controversial and routinely passed.
On May 27, Democratic Rep. Patrick Rose, chairman of the House Human Services Committee where CSSB had been heard, offered an amendment — with Sen. Watkins' full approval — to attach CSSB 1064 to SB 1440. Rose assured his colleagues that there was no opposition to CSSB 1064 — that both bills were non-controversial and could be passed.
No opposition? Non-controversial? Judy Powell's statement of opposition had mysteriously disappeared — along with the card she had filled out saying she wished to speak. A video shows her handing in the card and statement.
When Scot and her sister realized what was happening they tried to warn the representatives. "We passed out fliers, we talked to legislators — some were concerned but they ended up voting for it," she said.
"The day that we knew it passed on Saturday, May 30 —That's when we began our veto campaign."
"This whole sordid story is an example of how legislation that could never pass a public debate and vote in the Texas Legislature can become law," said Tim Lambert.
Telephone to Governor Perry's offices:
This article originally appeared at NewsWithViews.com reposted here, with permission from the author.
Sarah Foster is a researcher and freelance writer: