Call us now:
Jaywalking!
Every person who’s illegally crossed a street is a scandalous criminal subject to prosecution and punishment to the fullest extent of the law.
A bit over the top, true. But if you were to fight the ticket, conviction for this least of criminal acts requires a unanimous jury determining beyond a reasonable doubt that you committed the act. “Beyond a reasonable doubt” means that the trier of fact is fully satisfied, or entirely convinced that something occurred.[1]
Enter the termination of parental rights (”TPR”) case. It’s a lawsuit filed by the State in civil court to permanently separate children from their parents due to alleged abuse or neglect. It’s been called the death penalty of civil cases.[2]
THE TERMINATION STANDARD
The burden of proof the State must meet to win these “death penalty” cases is lower than in a jaywalking prosecution. A less-than-unanimous Jury must determine that the parent committed the act based on a standard of proof called “clear and convincing.” It’s defined as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”[3] It’s a higher standard than “Preponderance of the Evidence” but not as high as “Beyond a Reasonable Doubt.”
A lesser standard than jaywalking to forever separate a child from her mother! What nonsense is this? The U.S. Supreme Court has held that determination of a standard equal to or greater than this is a matter left to state legislatures and courts.[4] In other words, Texas has the bare minimum standard for permanently separating parent and child.
We’re free to raise that standard.
The federal government already requires a “beyond a reasonable doubt” standard for TPR cases involving Indian children.[5] If the standard is good and proper for an Indian child, shouldn’t it be good and proper for every child? If it’s good enough for an accused jaywalker, shouldn’t it be ….
The answer is “yes.” Yes, it should.
THE JURY STANDARD
TPR cases are tried in Texas civil district courts. The jury size for these courts is twelve. Only ten out of those twelve need be convinced that the government should permanently take a child from her mother.[6]
If two of twelve jurors remained unconvinced that a jaywalker did the deed, he walks free. Pun intended.
If two of twelve jurors believe the parent didn’t abuse her child, she still loses her child to the State.
That’s not right.
LET’S CHANGE IT
The burden of proof for TPR cases could simply follow the standard already in place for Indian children:
“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”[7]
The number of jurors required to permanently separate parent and child in a civil “death penalty” case should match that of a jaywalking case: a jury must unanimously decide that the government has proven its case.
The Texas Constitution gives power to the Texas Supreme Court to set rules of procedure that the courts must follow.[8] However, the state legislature has the authority to make procedural rules and to prohibit the Court from changing them.[9]
The U.S. Supreme Court has stated repeatedly that parents have a fundamental constitutional right to raise their children.[10] If the State wants to take our children from us, they should be held to the very highest standard: a unanimous decision by the jury that the State has proven its case beyond a reasonable doubt.
These changes will send a needed message to both the State and to juries: these are not the usual civil cases. These are deeply important matters, of constitutional weight, that will affect the history of parent and child forever.
It’s time to treat them as such.
[1] Texas Child Protection Law Bench Book 2022: http://benchbook.texaschildrenscommission.gov/library_item/gov.texaschildrenscommission.benchbook/151
[2] In re Interest of K.M.L., 57 Tex. Sup. Ct. J. 1357 (Tex. 2014)
[3] Tex. Fam. Code (101.007)
[4] Santosky v. Kramer, 455 U.S. 745, 769-770 (1982)
[5] Indian Child Welfare Act. 25 U.S.C. §1912(f)
[6] Tex. R. Civ. P. 292
[7] 25 U.S.C. §1912(f)
[8] Tex. Const. art V, § 31(b)
[9] Tex. Govt. Code §22.004
[10] See Meyer v. Nebraska, 262. U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Troxel v. Granville, 530 U.S. 57 (2000).