Thanks to the TDCAA website for posting this memo from CPS. Recently, CPS was sued by two parents in Fort Bend County for numerous constitutional violations.
The 5th Circuit Court of Appeals held that CPS could be liable to future litigants (under a 1983 claim). Normally, the government grants itself immunity from lawsuits. However, the 5th Circuit held that CPS may not have immunity if they continue to violate the constitutional rights of parents. Rightfully, CPS is scared about the possibility of massive judgments against them. Hence this urgent memo to employees.
From the CPS memo-
On July 28, 2008, a federal appeals court with authority over Texas handed down a decision in a case that will be referred to as “the Gates case.” The decision is binding on Texas and because it involves federal constitutional rights, supersedes anything to the contrary in Texas law, or DFPS policy or practice.
I. INTRODUCTION
The Gates case is significant for two key reasons. First, it 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. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.
CPS may consider this a “new” standard. I disagree. The Constitution has been around longer than CPS. CPS shouldn’t be surprised that it applies to them.
Consent Searches
Just like the police will ask for consent to search your car, CPS will ask for consent to search your home. This memo reminds CPS that they can not invade private residences without a court order, consent, or emergency.
Parents, read this section and learn these rules. If CPS wants to enter your home it is not to help you. Call an attorney to protect your rights.
I
V. ENTERING AND REMAINING IN A HOME
A. SUMMARY
As with removals, in order to gain entry into a home for the purpose of a CPS investigation, we must have one of the following: 1) exigent circumstances, 2) consent, or 3) a court order, but the Gates ruling provided additional explanation concerning exigent circumstances and consent that will affect our practices.NOTE: even if we do have exigent circumstances to enter a home, it may be more appropriate for safety reasons to call law enforcement to gain entry.
Current Practice: CPS enters a family’s home only if we have exigent circumstances, consent, or a court order. CPS does not always ensure consent is specific to our investigators. A court order in aid of investigation is rarely utilized.
New Practice: As with removals, exigent circumstances are present only where there is immediate danger to a child in the home, i.e. life or limb is in immediate jeopardy. Consent must be clear, unequivocal, voluntary and given specifically to CPS, as opposed to law enforcement. We will likely increase the use of court orders in aid of investigation.
One sentence sticks out. CPS will increase the use of court orders. That is a great idea. Instead of taking children first, and then going to court; CPS should actually investigate, then go to court for a removal. Of course, if this turns into a rubber stamp situation like DWI blood search warrants, then again there will be no justice.
More on the consent guidelines below the fold….
From the Memo-
2. Consent
The Gates case serves as an important reminder about the need for consent to enter a home for the purposes of conducting a CPS investigation. Key points are:• Consent must be affirmative. It is not enough that a person does not say no. Consent for CPS to enter a home must be voluntarily given and unequivocal (clear). You should identify yourself as a CPS investigator and explicitly request and receive permission to enter the home. The best practice is to ensure that the person states you may enter (rather than simply getting a nod or other non-verbal gesture). In any case you must document the basis for consent in your narrative.
• Consent should be from someone with authority to give it. A parent has the authority to consent to or deny entry to the home. It is also reasonable to assume that if the parents have left one or more children in the care of an adult caretaker, that caretaker has the authority to consent to allow the caseworker to enter the home and interview the child in private, although a caretaker probably does not have the authority to permit a search of the entire house. If an adult is not home, the caseworker should rely on the consent of a child in the home only if the child appears old enough to effectively give consent. Teenagers will likely be old enough; children 12 or younger probably will not.
• Consent can be withdrawn at any time. Anyone with authority to give consent can also withdraw it at any time. The decision of a parent or other individual living in the home is the final word. So, if entry is gained after a housekeeper who does not live in the home gives consent, a parent or other individual living in the home could at any point instruct CPS to leave and we would be obligated to do so.
• Consent must be given to CPS. We routinely conduct joint investigations with law enforcement, but it is important to remember that our activities are separate. If law enforcement gains entry to a home, we must still request permission for CPS to enter. Moreover, if law enforcement determines consent is not necessary to their investigation, this determination does not apply to us. We must independently determine whether there are exigent circumstance or whether we have been given consent to enter.