Texas Judge Sanctions Child Protective Services for ‘Groundless’ Removal of Child

HOUSTON, Texas — A judge in Harris County, Texas, has sanctioned Child Protective Services and ordered the agency to pay $27,500 in attorneys fees. He has also ordered CPS personnel to read the United States Constitution and the Bill of Rights in the Texas Constitution.

Harris County District Court Judge John Schmude, a family court judge, issued a lengthy and scathing order admonishing the agency.

The Texas Department of Family and Protective Services (TDFPS) is charged with protecting children from abuse and neglect while safe-guarding the constitutional rights of parents.

In his order, Judge Schmude called the actions by agency representatives in filing a parental custody lawsuit “groundless.” He finds that the Department “deliberately misled the Court” during a hearing in 2014 and that the removal of the child without a court order was based on “incorrect assumptions which they made no effort to confirm.”

The Houston family court judge also charges the agency with making arguments for the removal of this child from her home without a court order based on incorrect assumptions that they believed they had no duty to investigate or confirm. There was no imminent danger to the child or exigency, he writes.

Schmude ordered, “in light of the egregious violations of parental and constitutional rights that transpired during this case … the Court strongly suggests that all caseworkers, supervisors and program directors currently employed by TDFPS within Harris County, Texas read carefully the following:

  1. The United States Constitution;
  2. Article 1 of the Texas Constitution (“BILL OF RIGHTS”);
  3. Chapter 262 of the Texas Family Code (“Procedures In Suit By Governmental Entity To Protect Health And Safety Of Child“;
  4. The case law cited [in the Order] under section entitled ‘CONSTITUTIONAL PROTECTIONS;” and
  5. The Oath TDFPS caseworkers swear or affirm “to uphold the mission of the Texas Department of Family and Protective Services, to protect children, the elderly, and people with disabilities … uphold the Constitution of the United States and of Texas … discharge the duties of my position to the best of my ability … honestly demean myself and act in accordance with the public trust placed in me. So help me God.”

The judge specifically ordered “all individuals referenced in the [Order] to provide to the Court a sworn statement no later than 5:00 p.m. on October 20, 2016 attesting to their compliance with the requirement set forth herein.”

In his order, Judge Schmude cited case precedent and wrote, “Courts have singled out for heightened protection that ‘most essential and basic aspect of familial privacy – the right of the family to remain together without the coercive interference of the awesome power of the state.'”

Schmude noted that Texas law also provides that “[a]ctions which break the ties between a parent and child ‘can never’ be justified without the most solid and substantial reasons’.” Moreover, the Fourth Amendment to the United States Constitution protects people from warrantless government intrusions and warrantless searches and seizures. Warrantless searches are “presumably unreasonable unless there is consent or exigent circumstances.”

Breitbart Texas reported in mid-July that during a regional hearing of the Texas House of Representatives Committee on County Affairs in Houston, Rep. Garnet Coleman (D-Houston), a Democrat representative who serves as chair of the Committee, angrily shut-down Rep. Jonathan Stickland (R-Bedford) when he was trying to ask child protective services representatives who were testifying for Harris County, about the constitutional and due process rights of parents when they are caught up in the system.

Stickland told Breitbart Texas, “While seeking to reform Child Protective Services, we need to be careful that those that are in the mess are not part of fixing it.” As to Rep. Coleman’s shutting Rep. Stickland down in asking questions, Stickland added, “I am convinced that the constitutional rights of parents do matter,” he emphasized. “It must be part of the process.”

Regional hearings are being held to address challenges and make reforms at the Texas Department of Family and Protective Services. TDFPS has come under fire from the judiciary and the public.

In December 2014, a class action lawsuit was filed against CPS. As reported by Breitbart Texas, the lawsuit was filed by a New York advocacy group called Children’s Rights. About 12,000 children who were in long-term care in Texas were included in the class action suit. The advocacy group successfully sought and received a scathing order from a federal district judge.

Judge Janis Graham Jack ordered the State of Texas to enact reforms and wrote an opinion that said that the long-term foster care system was improperly run. She called the agency a place “where rape, abuse, psychotropic medication and instability are the norm,” as reported by the Dallas Morning News in December 2015. The judge noted that the DFPS and the Commissioner at the time, Judge Specia, had “the best intentions” but said the system is underfunded. She called the long-term foster care system in the state “broken.”

John Schmude ordered the agency to pay the attorneys fees within 20 days. If the department appeals the Court’s order, the agency is ordered to pay $7,500 for legal fees for appeal to an intermediate appellate court, and $7,500 for appeal to the Texas Supreme Court.

The last time a state District Judge in Houston awarded monetary sanctions against CPS of this magnitude was in 2011 by Judge Michael Schneider in the 315th Juvenile Court.

Attorney Briscoe Cain told Breitbart Texas, “Judge Schmude has not only slapped CPS with monetary sanctions, which they deserved, he has avenged the Bill of Rights of both the U.S. and Texas Constitutions.” Cain, who will be sworn into the Texas House in January added, “I hope CPS will learn their lesson but based on the department’s track record, it’s unlikely absent action by the Texas Legislature.”

Cain said that “CPS has systemic abuse of power” issues which must be addressed through legislative action. He said he has been told there will be at least eight bills related to CPS filed “on day one” of the upcoming legislative session.

The attorney who filed the motion for sanctions on behalf of the father is board certified family lawyer, Dennis M. Slate.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.


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