Ruling Against CPS

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Always Fight Back!!

Texas Judge Orders CPS to Read Constitution After Misleading Court Filing
12 Sep 2016

HOUSTON, Texas — A Texas father fought back after Child Protective Services unlawfully removed his daughter and filed legal pleadings that were not supported by the evidence. The agency also went to court without giving the father notice of the removal hearing. A judge has ordered the agency to pay the father’s legal expenses and ordered CPS personnel to read the Constitution.

As reported by Breitbart Texas on September 2nd, Harris County District Court Judge John Schmude, a family court judge, sanctioned Child Protective Services and ordered the agency to pay $27,500 in attorneys fees. He also ordered CPS personnel to read the United States Constitution and the Bill of Rights in the Texas Constitution.

Judge Schmude ordered agency personnel to read not only the U.S. and Texas Constitutions, but the Texas Family Code chapter on “Procedures In Suit By Governmental Entity To Protect Health And Safety Of Child.” He ordered them to re-read the oath that TDFPS (Texas Department of Family and Protective Services or “CPS”) workers take when they go to work for the agency.

Dennis M. Slate was the lawyer who asked for the sanctions. Slate told Breitbart Texas that after he got involved in the case, “I clearly saw the irregularities of the illegal removal of the child from my client’s home, without a court order. I immediately filed a sanctions motion to prevent CPS from being able to dismiss their case to avoid being held accountable for their gross violations of the Constitution.”

The Houston area family lawyer added, “After hearing evidence about the actions of TDFPS during a lengthy hearing, Associate Judge Paula Vlahakos and Judge Schmude agreed with me that the agency needed to be held accountable. This Order demonstrates how TDFPS, the attorneys and the Court must all first, understand their respective roles and second, have the courage to vigilantly exercise their duties in order to protect children and to safeguard the Constitutional rights of parents.”

In this case, In the Interest of J.M.M., Judge Schmude found that the allegations and contentions in the pleading filed by the agency had no factual support and sanctioned the agency under procedural and other legal rules governing court proceedings. In his Order, he noted that CPS and law enforcement and juvenile probation officers “may take possession of a child without a court order under certain well-defined circumstances.”

Texas law provides that a child may be removed without a court order only if, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse. Moreover, the agency must show that it is contrary to the welfare of the child to remain in their home, and consistent with the circumstances and ensuring that the child is safe, that reasonable efforts were made to prevent or eliminate the need for removal from their home. The law presumes that the child’s being with the parent(s) or legal guardian is in the best interest of the child.

After a child is removed without a court order, Texas law mandates that CPS show that: (1) there is a continuing danger to the physical health or safety of the child if the child is returned home, or there is evidence of sexual abuse and the child is at substantial risk of future sexual abuse; (2) it is contrary to the child’s welfare to remain in the home; and (3) reasonable efforts were made to prevent or eliminate need for removal.” All of these things must be shown by the agency in order to meet their burden of proof under Texas family laws.

As set out in Judge Schmude’s Order, at the time the agency filed a motion to modify conservatorship and for termination of parental rights, by CPS’s own admission, “there was no imminent danger to the child on the evening [that the child was removed].” In fact, CPS personnel told the father “that the basis for the removal was that they had made a mistake.” The Court also found in its sanction Order that CPS admitted that the child had not been injured and the pleading filed by the agency “contains no information indicating any imminent danger” to the child on the night she was removed.

The Court’s Order on page 11 details the facts in support of the findings that “TDFPS knowingly misled the Court with statements in the caseworker’s sworn affidavit and with sworn testimony at the [ex parte hearing] required by [the] Texas Family Code.”

Page 12 of the Court’s Order details the actions taken by the agency that “exceed simple bad judgment or negligence, and each, taken individually, demonstrates the conscious doing of a wrong for dishonest purposes,” the Court writes.

The actions by CPS detailed included: filing a groundless lawsuit, consciously failing to inform the Court that the child had been returned to the father, and not telling the Court that the caseworker had no concern about the child being with her father.

The judge also found that the agency was wrong in “[w]aiting until after business hours on a Friday night to remove [the girl] without a court order when sufficient time existed [to go to court] to obtain one.”

Texas State Representative Dustin Burrows (R-Lubbock) told Breitbart Texas, “Parental rights are one of the most fundamental rights in a society, and, those rights must be protected and respected by the State. When a judge determines those rights were not respected, I think it is entirely appropriate for the Court to order those responsible to read the Constitution and the Bill of Rights.”

This is the second time that board certified family lawyer Dennis M. Slate, has been successful in getting large monetary sanctions against the agency for a parent. The last time a state district judge in Houston awarded monetary sanctions against CPS of this size was in 2011 when Judge Michael Schneider of the 315th District (juvenile) Court ordered the agency to pay $32,000 in attorneys fees to a Houston area family.

As reported by the Houston Chronicle, that case also involved the agency filing a “groundless cause of action.” Judge Schneider ordered the caseworker and her supervisor to write a report showing that they understood the law that governs the removal of children from their families and homes.

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.