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First, “abuse” and “neglect” are categories. The investigator is required by state and federal law to give you the details of the allegation. “You’re accused of abuse” doesn’t cut it. What does cut it is “you’re accused of breaking little Johnny’s arm.”
Now, the definitions. I called the words “categories” because there is no single definition. There are twenty-one. You find them all in Section 261.001 of the Texas Family Code. Below is a Cliffs Notes version of a few:
Abuse includes:
- Injury to a child that results in observable and material impairment;
- Causing or permitting the child to be in a situation that results in observable and material impairment;
- Physical injury that results in substantial harm or the genuine threat of substantial harm;
- Physical injury that you can’t explain;
- Sexual conduct harmful to a child;
- Failure to prevent sexual conduct harmful to a child;
- Etc., etc.
Neglect includes:
- Leaving a child in a situation where he would be exposed to a substantial risk of harm;
- Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity;
- Failing to seek medical care for a child;
- Etc., etc.
Vague? Subjective? Oh, yes. By design.
Probably not. Barring an emergency, a government agent needs your consent or a court order to come in your home. The Texas Family Code states that an investigation may include a visit to the child’s home unless the alleged abuse or neglect can be clearly ruled out without a home visit. So for example, if the allegation is that dad broke the child’s arm, no home visit is warranted since that allegation has nothing to do with the condition of the home. Even if the allegation does involve the condition of the home, the investigator still has no absolute right to enter.
Absolutely not. CPS investigators are notorious for demanding things they have no right to, and for failing to follow procedures that are required by law. It is vital that you consult an experienced attorney who can guide you through this nightmare.
First, it’s probably NOT an emergency if the CPS agent is telling you it is. If there were, she wouldn’t be discussing the matter with you. She’d be getting the police to help her force her way into your home. One investigator told me that the situation was an emergency because she didn’t know that it wasn’t an emergency. No, I’m not joking.
Real emergencies are defined in the Texas Family Code and in case law. I won’t quote them in detail here, but they state in general that the investigator must have personal knowledge (not suspicion, not allegations) that there is an immediate danger to a child’s physical (not emotional) health or safety. The danger must be so immediate that there’s no time to obtain a court order.
A CPS memo to its employees gave this instruction:
Weighing everything you know at the moment you are considering the removal, would the time it takes to obtain a court order place the child in imminent danger of physical or sexual abuse?
So, for example, if dad did abuse his child – but is currently offshore working on an oil rig – it’s not an emergency. If the parent denies abusing his child and the investigator doesn’t have personal knowledge to the contrary, it’s not an emergency.
While it may mean nothing more than the investigator is lazy or overworked, it may mean she has decided to confiscate your children and wants you on her turf, surrounded by police, when she does it. There is absolutely no legal requirement that you meet at a location of her choosing.
No, she can’t. She’s required by state and federal law to tell you at first contact what each allegation is. When I confront an investigator with this, she usually tells me that the allegation is “abuse” or “neglect.” These are categories, not the allegations themselves. Demand the details. “You’re accused of abuse” doesn’t cut it. What does cut it is “you’re accused of breaking little Johnny’s arm.”
This is the United States, not the U.S.S.R. You are entitled to know.
A safety plan is a “voluntary” written agreement between the parent and the CPS investigator detailing her demands “to keep your child safe” during an investigation. (See my March 19, 2015 blog post – Thank God and Gary Gates for the Safety Plan – on the subject.) CPS printed material states that they will work with you to develop the document. Don’t count on it. Most likely, it will be “sign this or I’m taking your kids.”
Occasionally, the demands are reasonable. “Agree to stay sober around the kids.” That sort of thing. Other times, the demands are ridiculous. One demanded that the parent agree to not let the child get sick. Nope. Not kidding.
A safety plan is NOT legally binding. You may follow it, modify it, or ignore it. However, you must consider what may happen if you don’t submit to the caseworker’s demands. There may be consequences, including the removal of your child. You should consult an attorney before signing or modifying any safety plan.
The short answer is “yes.” The long answer is “yes, to a point.”
Let’s look at the applicable law. First, Texas Family Code (TFC) §261.001(1)(c) defines abuse of a child, in part, as physical injury that results in substantial harm to the child, excluding reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm.
Is spanking “reasonable discipline”? For the answer, let’s turn to TFC 151.001(e):
The Texas Family Code specifically confirms that the spanking is not abuse, but is reasonable discipline.
(e) Only the following persons may use corporal punishment for the reasonable discipline of a child:
(1) a parent or grandparent of the child;
(2) a stepparent of the child who has the duty of control and reasonable discipline of the child; and
(3) an individual who is a guardian of the child and who has the duty of control and reasonable discipline of the child.
Texas Penal Code §9.61 states that:
(a) The use of force, but not deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child’s parent or stepparent or is acting in loco parentis [in place of the parent] to the child; and
(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
(b) For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.
So if you are, say, mom’s sister who is babysitting the little darling for the night, you are not on the Family Code list. But as long as you have permission from mom to spank, there is no criminal penalty for doing so. And, as long as you don’t cause substantial harm to the child, there is no problem with CPS either.
Substantial harm is defined in the Texas Administrative Code as “real and significant physical injury or damage to a child.”
Is slight bruising on a kid’s butt a “real and significant injury?” Reasonable minds can differ. But know that many CPS agents and judges are of the opinion that a bruise, any bruise, anywhere, is abuse. To be safe from government interference, DON’T LEAVE A MARK! (A rounded wooden spoon works great!)
For more information on spanking, see my May 15, 2015 blog post Spank That Kid!.