DFPS Releases Report on the Eldorado Investigation and Defends Its Actions
On December 22, 2008, the Texas Department of Family and Protective Services released a report on its investigation of the FLDS compound in Eldorado. Sixty-two percent of the families investigated had a confirmed finding of abuse or neglect, with 124 perpetrators. The report documents DFPS's actions in the case, the need for the investigation, the services offered, the results, and the costs of the investigation. To read the full report, please click here.
Many undocumented abused and neglected children qualify for Special Immigrant Juvenile Status (SIJS), which will assist them in becoming a US citizen. Melissa Weaver, the Women and Children's Program Attorney at the Human Rights Initiative (HRI), is available to help attorneys whose clients may qualify for SIJS. Melissa is a participant in Colleague Connection -- Attorneys, and attorneys can send questions to Melissa through that email network. Judges can refer parties to HRI for assistance. Click here for more information about SIJS and the Human Rights Initiative. HRI's manuals on representing immigrant children can be found in the manuals section of the TLC website and under the topic "Immigrant Children."
As the holidays approach, you may be looking for convenient, secure ways to do your holiday shopping. Here is a new way to shop online at over 600 major retailers, with special discounts, while these retailers generously donate a portion of the proceeds of your purchase to TLC! Participants include Southwest Airlines, Budget, Best Buy, Office Depot, Staples, OfficeMax, Barnes & Noble, Target, WalMart, Sears, AT&T, CompUSA, Hewlett Packard, Dell, Kodak, Macy's, 1-800-Pet-Meds, Netflix, etc. Best of all, this service is available year-round, giving you an opportunity to support our work with children on an ongoing basis, at no cost to you. Also, please tell your friends about this opportunity. Click here to learn more. (Once you select a retailer, you are taken to that retailer's online store to complete your transaction---with all of the product selection, safety, and security you expect from these major retailers.) We greatly appreciate your support and all you are doing to serve Texas' children.
TLC is pleased to announce that we have created and are hosting a website modeled after the TLC site for the Administrative Office of the Courts of California and its Center for Families, Children and the Courts. This is the first organization to enlist TLC's assistance in designing and hosting a similar site to benefit their child advocacy community. This marks a momentous leap in realizing our vision of a network of sites across the nation, together furthering the common goal of helping children through the sharing of information and best practices. If you are interested in creating a site for the child advocacy community in your state based on the TLC site, please contact us at 800-993-5TLC (5852) or email TexasLawyersforChildren@yahoo.com.
On November 17, 2008, the Center for Public Policy Priorities issued a report on the first six months of STAR Health, a Medicaid managed care program for foster children, implemented by the Health and Human Services Commission and the Department of Family and Protective Services. The report reviews health care needs of foster children and the various managed care models. It then examines STAR Health and makes recommendations for improvements. CPPP recommends changing the name of the program to prevent confusion with a similarly-named health program, evaluating the Health Passport program, changing elements of the provider requirements for court testimony, and better use of performance measures in evaluating managed care projects. CPPP notes that remaining questions to be addressed include loss of medical benefits as foster children leave the system, adequacy of availability of behavioral health services, and better access to medical services through regular Medicaid than through STAR Health. To see the report, click here.
On November 3, 2008, the Center for Public Policy Priorities issued a summary and analysis of the impact on Texas of the Fostering Connections to Success and Increasing Adoptions Act of 2008, the new federal law which overhauls various child welfare programs. Click here to view CPPP's policy paper, entitled "New Federal Foster Care Legislation: What It Could Mean for Texas."
On October 13, 2008, President Bush signed the Keeping the Internet Devoid of Sexual Predators Act of 2008 (KIDS Act of 2008). The law requires the U.S. Attorney General to maintain, in the National Sex Offender Registry, all Internet identifiers for sex offenders. Identifiers include email addresses and other methods of Internet identification. Identifiers will not be publicly disclosed; however, social networking sites will have secure access to compare information in the registry with their users and are subject to penalties for misuse of the information. The AG must also notify sex offenders of the new requirements for providing their Internet identification.
On October 8, 2008, President Bush signed the Effective Prosecution of Child Pornography Act of 2007. This bill expands federal jurisdiction for certain crimes by including activities that use interstate commerce, such as sexual exploitation of children, selling or buying of children, and child pornography crimes. The act also declares possession of some child pornography to be a predicate crime for money laundering and expands the definition of "possess" with respect to child pornography to include accessing child pornography by computer with the intent to view.
On October 8, 2008, President Bush signed the Runaway and Homeless Youth Act of 2008, which amends provisions for federal grants to programs offering services to runaway youth. It increases minimum grant allotments and requires that youth shelters and transitional living programs have adequate emergency preparedness and management plans. The act also revises requirements for transitional living programs and increases the maximum allowable length of stay. Some youth projects receive priority funding in the bill. Statistics on runaway and homeless youth must be reported periodically to Congress.
On October 7, 2008, President Bush signed the Fostering Connections to Success and Increasing Adoptions Act of 2008, which addresses educational stability for foster children, including requiring states to ensure that foster children remain in their original school unless not in the child's best interest; possible waiver of non-safety related licensing standards for relatives; foster care payments after age 18; transition for children aging out of foster care; training for agencies, relatives and court personnel; oversight of health care services; sibling placement; tribal programs; and special needs adoptions. State, local or tribal child welfare agencies, as well as nonprofit organizations, may receive matching grants from the U.S. Department of Health and Human Services, with the goal of assisting children in foster care to reconnect with family members.
On September 22, 2008, the Texas Department of Family and Protective Services' Accountability Division of Child Protective Services issued a report evaluating its kinship care initiative. Following federal legislation requiring states to give preference to foster children's placements with relatives, Texas began pilot programs in several counties to increase the number of children in kinship care. In 2005, the Texas Legislature enacted the Family Focus Initiative of Child Protective Services, which increased financial support and services to relatives who accepted placements. This evaluation shows a substantial increase in the number of relative placements and increased positive outcomes for such children. The report notes two possible explanations for these findings: (1) that relative placements bestow positive benefits compared to foster care or (2) that the children who go into relative placements are younger and have fewer special needs. The report states that further study is needed to determine the impact of these factors and to determine the effect of increased financial assistance to the caregivers. Click here to view the report.
A group of Texas judges has recently formed a new association, the Texas Association of Child Protection Judges. Judges Robin Sage and Carole Clark were elected as co-presidents for this first year. This group is designed to offer judges who hear CPS cases support, information, and a connection with other judges. Membership is open to any judge or associate judge who handles child abuse and neglect cases. The members of this association will be using several of TLC's new secure, private communication tools to discuss key topics in handling CPS cases.Click here to view Judge Sage's invitation to join this important new association.
On August 22, 2008, Texas Department of Family and Protective Services Commissioner Carey Cockerell and Assistant Commissioner for Child Protective Services Joyce James, through General Counsel Gerry Williams, issued an "Urgent Legal Advisory for Investigations" to all CPS personnel. The Advisory is in response to the decision handed down July 28 by the Fifth Circuit Court of Appeals in Gates v. TDPRS, et al. To read the Fifth Circuit's decision, click here. The Advisory sets out new practices for emergency removals of children, transportation of children from school, and for entering and remaining in a home. The new practices reflect changes made in response to the Fifth Circuit's definition of "exigent circumstances," which TDFPS considers as having a higher threshold than that currently utilized by CPS. The advisory lists factors to weigh when removal, transportation, or home entry are considered; questions investigators should ask themselves before taking action; and case examples to illustrate the new practices. The Advisory directs all personnel to put the new standards and practices into effect immediately until the agency issues revised policies and procedures. Click here to read the Advisory.
Hon. Scott McCown (Ret.) will discuss the Fifth Circuit Court of Appeals' recent opinion in Gates v. TDPRS, No. 06-20763, concerning the Fourth Amendment's application to CPS investigations, and the opinion's possible ramifications at the upcoming CPS Judicial Conference. The conference is open to judges only and will be conducted August 25-27, 2008, at the Sheraton Austin Hotel in Austin, Texas. It is sponsored by the Texas Center for the Judiciary and funded by a grant from the Texas Supreme Court's Judicial Commission for Children, Youth and Families. For registration information, call the Texas Center for the Judiciary at 512-482-8986.
The State Bar Committee on Child Abuse and Neglect honored Charles Childress as the recipient of its annual Fairy Davenport Rutland Award for Distinguished Service to Children and Families. The award is named after Ms. Rutland in recognition of her exceptional leadership as a founding member and chair of the Committee for over 20 years and her continuing dedication and many contributions to the field of child welfare. The award was presented to Professor Childress at the Advanced Family Law Course. Professor Childress has made significant and numerous contributions to the field of child advocacy, having served as Co-Director of the Children's Rights Clinic at the University of Texas School of Law, Senior Attorney at the Department of Family and Protective Services, and Chief Staff Attorney for the Fourth Court of Appeals, to name a few. He was instrumental in the passage of landmark legislation that limits children's time in foster care and was named outstanding legislative liaison for the 2001 legislative session by the DFPS Office of General Counsel. Click here to view the letter nominating Professor Childress for this prestigious award.
The Texas Access to Justice Foundation (TAJF) is administering donated funds, mostly from the Texas Bar Foundation, to distribute a nominal amount of reimbursement to attorneys providing pro bono representation of children in the FLDS case. This small pool of funds will be used to help defer some of the travel and litigation expenses that will not otherwise be reimbursed by the county, a law firm, or a client, and is available to attorneys whose representation has resulted in a financial hardship. The amount of reimbursement will depend on the number of requests submitted. The deadline for submitting requests is August 29, 2008.
Click here to download the request form.
On July 28, 2008, the Fifth Circuit Court of Appeals issued its decision affirming a district court's granting of summary judgment to governmental defendants in Gates v. TDPRS, No. 06-20763. In a lengthy opinion, the Court examined the constitutionality of the Department's entry into and removal of children from a home and from school without a court order. Concluding that the law concerning how the Fourth Amendment standards would be applied in a CPS investigation was not clearly established at the time of the entry and removal, the Court then delineated the parameters and stated in its final summary that the law is now clearly established. The Court examined at length the issues of consent, exigent circumstances, and the "special needs" doctrine, and concluded that since the law concerning the "special needs" doctrine was not clearly established at the time, the government actors could have reasonably believed that it did apply and were, therefore, entitled to qualified immunity. Other issues addressed included due process rights, supervisory liability, governmental liability under § 1983 and Texas Constitution issues. Click here to read the opinion.
On June 25, 2008, the U. S. Supreme Court issued an opinion holding that convicted child rapists cannot be sentenced to death. In a 5 to 4 decision, the Court said that "the death penalty is not a proportional punishment for the rape of a child." The case, Kennedy v. Louisiana, invalidated a Louisiana law. Texas has a similar law, but it applies only to repeat offenders and when victims are younger than 14. Texas legislators fortuitously included a provision that persons convicted under the law would receive a sentence of life without parole in the event the Court rejected the death penalty. In its ruling, the Court left open the issue of use of the death penalty for crimes against the state (as opposed to crimes against individuals), such as "treason, espionage, terrorism, and drug kingpin activity."
On June 25, 2008, the United States Supreme Court reversed the California Supreme Court's ruling in Giles v. California, 2008 U.S. LEXIS 5264 (2008), and held that a criminal defendant did not forfeit his Sixth Amendment right to confront a witness because he murdered the victim-witness. Giles was convicted of first degree murder of his girlfriend, and evidence against him included the girlfriend's statement to police three weeks earlier that he had choked her and had threatened to slash her with a knife. Giles pled self defense. The Court rejected the state's argument that a defendant forfeits his right to object to admission of evidence on confrontation grounds when he commits a wrongful act that renders a witness unavailable. The state had to show, but did not, that Giles intended to prevent the victim from testifying when he murdered her.
On June 2, 2008, Hon. Barbara Walther, Judge of the 51st District Court of Schleicher County, signed an order pursuant to order of the Texas Supreme Court and the Third Court of Appeals. Judge Walther's order vacated her prior designation of the Texas Department of Family and Protective Services as temporary sole managing conservator of the children removed from the YFZ Ranch, home to members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Judge Walther's order also required that the children be returned to parents, managing conservators, or legal guardians (collectively "caretakers"). Each person receiving possession of a child is to provide a fingerprint and have a photo taken. Caretakers must take parenting classes and are ordered not to remove the children from Texas. The Department's investigation is to continue, with the Department's having access to the residence of each child for unannounced home visits. To read the entire order, click here.
On May 29, 2008, the Texas Supreme Court denied a petition for writ of mandamus in Cause No. 08-0391, styled In Re Texas Department of Family and Protective Services. The department had requested relief from a Third Court of Appeals order granting a conditional writ of mandamus pursuant to a petition filed by thirty-eight mothers of children the department had removed from the Yearning for Zion ranch. The Supreme Court refused to disturb the opinion of the Court of Appeals and concluded that the removal was not warranted. The opinion applies to approximately 120 of the 468 children removed from the ranch, but, in practical terms, may apply to many of them. To read the opinion, click here. Justices O'Neill, Johnson, and Willett concurred in part and dissented in part. To read the dissenting opinion, click here.
A three-judge panel of the Third District Court of Appeals has ordered the district court in the FLDS case "to vacate its temporary orders granting sole managing conservatorship of the children of the [38 women who sought a writ of mandamus] to the Department." Click here to view the Memorandum Opinion.
On May 19, 2008, in U.S. v. Williams, 2008 U.S. Lexis 4314 (2008), the United States Supreme Court ruled that a federal law outlawing pandering of child pornography is constitutional. The case involved a defendant's offer and solicitation of child pornography, including the offer of pictures of a child that did not exist. The Court held that such offers and requests are excluded from First Amendment protection and that the statute's requirement that the defendant act "in a manner that reflects the belief" that the subject of the transfer would be child pornography is not overly broad.
Numerous experienced ad litem attorneys, as well as trial attorneys and attorneys from the Appellate Section of the Texas State Bar are now available to help the children's attorneys in the Eldorado FLDS case. To find a pro bono mentor, Eldorado children's attorneys can click on "Resources" on the blue menu bar above to visit the special Eldorado FLDS Compound Case Resources section, or click on "Pro Bono" and then on "Find a Pro Bono Attorney." Experienced ad litems for children, trial attorneys, and appellate attorneys are invited to continue to volunteer to assist the attorneys who are generously donating their time to represent these children---many of whom have limited experience or even no prior experience in serving as an ad litem for a child in a CPS case. It would be very helpful to these volunteers to have access to mentors who are experienced ad litems and trial and appellate attorneys as they work through the complex issues they will face. To volunteer to be a mentor, go to "Pro Bono" on the blue menu bar above and complete the form. Under "Areas of Assistance" check the box for "Eldorado Children" and all other areas that apply, and under "Types of Assistance" you can check "Mentor Another Attorney."
The Liberty Legal Institute ("LLI"), a legal advocacy group for religious freedom and parental rights, filed an amicus brief concerning the FLDS case in the Third District Court of Appeals. LLI argued that although parental rights are afforded the protection of strict scrutiny, they can be overcome by evidence of a finding of sexual exploitation or a threat to health and safety. LLI further argued that substantive analysis of the church autonomy doctrine is unnecessary upon a finding of sexual exploitation or a threat to health or safety. To view the brief, click here.
TLC is distributing information and implementing communication services to assist the legal professionals handling the Eldorado FLDS case. Our site now has a special page that shows a consolidated list of resources and tools available to these professionals. TLC is also acquiring additional materials and research and is developing tools specifically for those handling the cases. TLC site users can click on "Resources," then "Eldorado FLDS Compound Case Resources" to see these services. Some services are limited to the attorneys representing the children.
Attorneys, here is a chance to help the children of the Eldorado FLDS case. If you have experience in representing children or in trial preparation skills or appellate law, please sign up for TLC's Pro Bono Network. Some of the attorneys who are generously donating their time to represent these children have limited experience or even no prior experience in serving as an ad litem for a child in a CPS case. It would be very helpful to these volunteers to have access to mentors who are experienced ad litems and/or trial and appellate attorneys as they work through the complex issues they will face. To register, go to "Pro Bono" on the blue menu bar above and complete the form. Under "Areas of Assistance" check the box for "Eldorado Children" and all other areas that apply, and under "Types of Assistance" you can check "Mentor Another Attorney."
Anna Salter, Ph.D., an internationally acclaimed expert on sex offenders and victims, will be presenting "Truth, Lies, and Sex Offenders," a 2-hour CJE event which includes a complimentary luncheon. Dr. Salter will present in Fort Worth on Thursday, May 8th and in Dallas on Friday, May 9th. These events are open to any sitting judge, but an RSVP is required. To register, go to "Conferences/CLE" on the blue menu bar above, and click on "TLC's Live Judicial Trainings."
Internationally acclaimed expert on sex offenders and victims, Anna Salter, Ph.D., will be presenting "Truth, Lies, and Sex Offenders" on Friday morning, May 9th, in Dallas. Dr. Salter received her Ph.D. in Clinical Psychology from Harvard and was the winner of the Significant Achievement Award from the Association for the Treatment of Sexual Abusers. She is the former Director of Child Psychiatry Consultation at Dartmouth Medical School. This compelling presentation provides 2.75 hours of MCLE credit, including .5 of ethics, as well as CEU credit. Space is limited, so register soon! To register, go to "Conferences/CLE" on the blue menu bar above, then click on "TLC's Upcoming Live CLE Programs."
The Center for Public Policy Priorities has examined the reasons foster children have lower test scores, lower graduation rates, less post-secondary education, a higher rate of discipline problems, less extra-curricular involvement, and higher drop-out rates than other students. Some of the reasons are frequent moves in placements and missing school for therapy, medical appointments, and court appearances. In 2008, the federal government's Child and Family Service Review program will study whether Texas is providing appropriate educational services to foster children. CPPP's policy recommendations include increasing collaboration between the foster system and education system, improving data collection by the Texas Department of Family and Protective Services and by the Texas Education Agency, revising the application of DFPS' and TEA's confidentiality rules to foster children, making a child's education portfolio web-based, keeping more children in their home schools, applying the federal homeless education assistance act to foster children, and providing extra funding to schools with large foster care populations. Click here to view the report.