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An Unfamiliar Definition of “Voluntary”

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It is called a “voluntary safety plan.” Using the plan, Child Protective Services (CPS) can bypass the constitutional rights of parents and take children away from non-abusive homes. (Note: agencies function under different names from state to state, but they are often referred to merely as CPS.)

The definition and implementation

Texas guidelines offer a typical CPS definition of a safety plan.

A safety plan is a written agreement between CPS and the family which serves as a short term solution to address specific concerns about child safety in a home. A safety plan is a voluntary agreement and is not legally binding. Consequently, a safety plan is only appropriate for a limited time.

Safety plans commonly include voluntary agreements to: Place a child outside the home; Suspend or restrict visitation; and/or Submit to drug testing. (PDF)

Voluntary safety plans have been used by various state CPS agencies since the early 1990s at least. The Illinois Department of Child and Family Services (DCFS) provides background that is typical of the policy. In 1994, the DCFS developed the Child Endangerment Risk Assessment Protocol (CERAP). At CERAP’s core is a list of 15 questions with yes or no answers that serve as a checklist for assessing the risk of a child being abused (PDF).

The stated guidelines are to be used in situations of potential abuse: “The safety assessment must be conducted, at a minimum, at the following case milestones.” One of those milestones is “whenever evidence or circumstances suggest that a child’s safety may be in jeopardy.” In short, the child under CPS scrutiny need not have been abused but need merely be assessed as being “at risk” of abuse, including neglect. One item on the CERAP checklist is “A caretaker has not, will not, or is unable to provide sufficient supervision to protect child from potentially moderate to severe harm.”

In his essay “Striking a Better Balance between Child Safety and Parental Rights,” J. Michael Tower of the University of Chicago explains, “CERAP is known as a consensus-based model because risk factors are derived from child welfare expert consensus, rather than evidence-based findings from research” (PDF).

When a home is judged to be “unsafe” — that is, when a child is deemed to be in imminent danger of moderate to severe harm — then a social worker often offers the parent(s) a “safety plan” as an alternative to the immediate removal of the child. Safety plans differ in their details depending on family circumstances, but the legal essence remains the same: rather than face what could be a permanent loss of a child, the parent “voluntarily” agrees to abide by CPS rules. Tower clarifies, “The social worker must explain to the parents that if there is refusal to sign or follow through with an appropriate safety plan, the child or children may then be removed from the home, according to Title 89, Chapter III of agency regulations.”

Houston attorney Dennis M. Slate explained what happensafter a safety plan is signed.

Although CPS usually writes on them they are only good for a month, CPS will actually expect you to follow them for much longer. You have to pay attention to the language that states that by signing this agreement, the parents agree to complete all services listed on the plan. The services that CPS recommends will almost never be able to be completed in the month time frame that is initially explained to the parents.

I have had clients come to me in desperation after 6 months have passed.… The reason CPS prefers to use these plans is because CPS are the only ones that can modify or terminate them. They control all the terms of the plan and the end date. CPS tries to use the threat of going to court to coerce you to sign it, but what they do not tell you is that court is the BEST place you can go.

Why? Because the decision and power is taken out of CPS hands and vested in a judge, who requires a much higher burden of proof that the child should be removed. A court usually requires evidence beyond the mere evaluation of a CPS investigator.

Legal context of voluntary safety plans

The main impact of voluntary safety plans is that parents waive their constitutional and other rights to custody of their children. The landmark case Troxel v. Granvilledealt with a parent’s right to refuse visitation to non-parents. The U.S. Supreme Court found, “the interest of parents in the care, custody and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court rooted this fundamental liberty in the “associational rights … sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

The legal case Dupuy v. Samuels, which began in 1997, is directly on point. (This lengthy case is known under various names, including Dupuy v. McEwen.) The National Center for Youth Law (NCYL) explainsthe far-reaching case against the Illinois Department of Child and Family Services, which addressed “the constitutionality of the ‘credible evidence’ standard” used by DCFS and the various procedures that allegedly violated the “due process protections and the fairness of the administrative hearing process.”

The NCYL provides Dupuy‘s history:

The court certified a class of over 145,000 persons who had been indicated as perpetrators of child abuse or neglect in DCFS reports maintained on the Central Register. At a summer 1999 hearing, plaintiffs proved error rates of seventy-five percent of the abuse findings on appeal. In March 2001, the district court held that defendant’s policies and practices with respect to “indicated reports” of child abuse, neglect, or both violated plaintiffs’ due process rights.

Nevertheless, after convoluted proceedings, the Seventh Circuit reversed the trial court in 2006 and found safety plans to be voluntary; an appeal failed; a petition to the Supreme Court was denied.

It depends on what “voluntary” means

A key issue of Dupuywas whether signing an agreement under threat of child removal constituted a voluntary act. Or was it “voluntary” in the same sense as a bank clerk handing over money to a gunman is “voluntary”?

In his essay, Tower speaks to the power imbalance between parents and social workers, citing several studies that indicated

child welfare workers wield an immense amount of power during their interactions with parents. Workers come equipped with an in-depth knowledge of the child welfare system and conferred status as government representatives while parents often have limited knowledge of the child welfare system and their legal rights.

Moreover, the parents are dependent on the social worker’s goodwill in preparing reports on the adequacy and safety of their home.

Another facet of whether safety plans are voluntary is whether a fair appeals procedure exists if a child is removed due to the parent’s refusal to sign. Dupuyfailed partly because such parents had a 48-hour window in which to have the removal appealed; the judge deemed this to be a sufficient safeguard. But, as Tower comments, the court made the “critical assumption that the child welfare system and juvenile courts are neutral bodies where fair and equitable adjudication of abuse and neglect cases occur.”

Anyone with the misfortune of dealing with those systems, however, knows there is often a pro-social-worker bias. Even if parents are informed of their right to a hearing, they might reasonably assume it would not be a fair proceeding and, so, feel additional pressure to sign.

Yet another issue raised by Dupuywas whether social workers were overstepping their authority by removing children without the review or order of a judge. Both these issues are now being raised in Texas.

What “voluntary” means in Texas

The Fathers and Families organization claimsthat almost 12,000 safety plans were signed in Texas in 2011. In April alone, 1,031 were signed.

To explain the high rate, Houston attorney Chris Branson points to a 2008 memothat was circulated to all Texas CPS investigators. The memo was a direct response to a 2008 case finding by a three-judge panel of the Fifth U.S. Circuit Court of appeals. Although the panel ruled against the particular family suing the Texas Department of Family and Protective Services (DFPS), it also found that the DFPS had acted improperly by removing children from the home without a court order.

The Fifth Circuit imposed new standards on the DFPS in Texas, Louisiana, and Mississippi to ensure that the agencies “abide by … constitutional rules.” The removal of a child now requires either parental permission or a court order “unless life or limb is in immediate jeopardy or sexual abuse is about to occur.”

The court’s intention was to force DFPS to respect parents’ constitutional rights to due process. DFPS did the opposite and began coercing permission from parents. Voluntary safety plans offered the additional advantage of not even being reviewed by a judge.

Branson says that his office is flooded by parents whose children were removed after they signed. Most of them had been warned by the CPS notto consult a lawyer. He states, “CPS doesn’t like it when lawyers are involved. There’s an important step in due process they (CPS) tend to skip.”

Branson offers profiles of two households from which children had been removed.

April Davis put her two young children down for a nap before taking a brief nap herself. When she woke up shortly after, her son Devon was missing. After a four-day search, his body was found in a nearby lake. Grieving and afraid of losing their 18-month-old daughter, the parents signed a voluntary safety plan that they thought was temporary.

  • Kala Schuchardt was shot and killed in the parking lot of a pediatrician’s office by a woman who made off with her 3-day-old son. The killer was arrested, and the child handed over to CPS. When he came to retrieve his son, Keith Schuchardt was questioned about a seven-year-old drug charge. A subsequent drug test was positive for marijuana and a painkiller. Again, afraid of permanently losing custody of his two sons and one stepson, he signed a voluntary safety plan.

Both parties contacted attorneys, and their children have been returned to them.

What of the many parents who cannot afford a lawyer or the court process? There is some hope that the Texas DFPS may be restrained in the future.

Part of it comes from judges who are bristling at the agency’s end-run around judicial involvement. District Judge Michael Schneider (Houston) is an example. In a 2011 ruling on a lawsuit brought by parents against the DFPS, Schneider ordered the children returned to their home, and he sanctioned the DFPSfor its “groundless cause of action.” Schneider also ordered DFPS to pay $32,000 of the parents’ legal expenses; he directed both the caseworker and supervisor involved to write a report to prove that they understood the law regarding the removal of children. His 13-page finding stated, “The offensive conduct by [DFPS] has significantly interfered with the legitimate exercise of the traditional core functions of this court.”

Another cause for hope is the lawsuits currently lodged against the Texas DFPS. For example, the national child-advocacy group Children’s Rights filed a lawsuitagainst Texas officials on March 23, alleging that thousands of children are stranded in long-term foster care due to inadequate efforts to permanently place them or return them home. Children’s Rights has successfully sued CPS in several other states.

Conclusion

No stronger human bond exists than immediate family. In the absence of physical abuse, there is no excuse for a third party to force its way into these intimate relationships and impose bureaucracy on them. The closing of a family’s front door used to clearly divide the private and public spheres. Now any closed door seems to indicate suspicious activity and becomes cause for the state to pry it open. The Texas DFPS may vary from other state bureaucracies in its procedural details, but its impact is the same. CPS agencies across North America are destroying families and harming children. Families would be safer if the CPS did not exist.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).