Sharon Cornet
The American Constitution - HIS 303
Controversy in Legislation and CPS Child Sexual Abuse Cases
Professor: Joe Niehaus
June 13, 2009

Parents and prosecutors are often on the same side of the fence when it comes to pursuing legal punishment for alleged child abusers, but this is not always the case, especially when a parent is accused (whether falsely or accurately).  Public and professional debate occurs at the front lines concerning the role of government-run protective services for children and families, and specific practices such as the removal of children, videotaped interviews, victim recantation, and crime risk assessment models on recidivism rates are particularly volatile issues.   Much controversy is entailed in the implementation of CPS (Child Protective Services) procedures and protocols, particularly in sexual abuse cases, and legislation surrounding parental rights has both helped and hurt the adversarial nature of CPS’s role with the criminal justice system. 

            Protecting children is the duty of their parents, and it also seems to be the business of the U.S. Government.  The states have individually-run CPS departments and offices, and are sometimes known as DCFS (Department of Children and Family Services), or DSS (Department of Social Services) or other names, depending on the state.  According to the Texas DFPS (Department of Family Protective Services) website, their job includes:
           “The Child Protective Services Division investigates reports of abuse and neglect of children. It also: 

·          Provides services to children and families in their own homes;

·          Places children in foster care;

·          Provides services to help youth in foster care make the transition to adulthood; and

·          Places children in adoptive homes.”

           CPS has been scrutinized – by the public and private sectors – for blatantly overstepping their legal bounds in their investigation of alleged sexual abuse cases.  An example of this is last year’s (April 4, 2008) seizure of over 450 children and young people at the YFZ Ranch in Texas, where CPS devastated the Mormon community due to their rush to judgment, removal of children prior to an adequate investigation, and a clear violation of the families’ 14^th Amendment rights.  The Texas Supreme Court (2008) stated “… the district court in this case was required to return the children to the custody of their parents. The district court's decision to instead grant custody to the state is inconsistent with Texas law as prescribed in the Family Code, constituted a violation of the constitutional rights of Real Parties in Interest and is an abuse of discretion. If the district's court decision is allowed to stand in the absence of specific evidence and despite the denial of due process, the rights of all parents and children in Texas will be placed at risk.”

           The Texas Supreme Court has a department called the Permanent Judicial Commission For Children, Youth & Families (Source: http://www.supreme.courts.state.tx.us/children.asp) that outlines the judicial role played in the lives concerning CPS and families.  Where it is true that CPS is there to prevent harm to children, or remove them, the workload for the courts is vast, as outlined in documents such as the Building a Better Court - Measuring and Improving Court Performance and Judicial Workload in Child Abuse and Neglect Cases (Source: http://www.ncjfcj.org/images/stories/dept/ppcd/pdf/buildingabettercourt.pdf) from the National Council of Juvenile and Family Court Judges.  However, for Texas, the reasons for CPS stepping in for children’s’ safety have been statistically measured as follows:

Source: http://www.dfps.state.tx.us/documents/about/pdf/2009-02-01_2008_Texas%20CFSR.pdf

            According to these figures, sexual abuse cases appear less frequently compared to other types of abuse or neglect, but many parents and CPS both, consider these just as important to take care of – if not more – as other situations.  One could even say that CPS will “jump on it” – and perhaps too fast, but how do we know?  On the question of how to evaluate CPS, so that children are not harmed, and at the same time parental rights are not abused, we need just to look at reports of evaluations that have already been done.  According to the 2006 maltreatment report of CPS, the Library Index (2009) reports “… Of the more than 1.1 million reports that were investigated, 60.4% were unsubstantiated. More than one-fourth (26.8%) were substantiated, and 3.5% were indicated.”  CPS’ reputation in the public eye is evidenced by their mere one-third success rate (or looked at another way, a two-thirds failure rate – if CPS were in business, they would be out of business) due to the high referrals for cases that wind up dropped because they are “unsubstantiated.” 

           The non-profit organization, FightCPS, has people from all over the United States who write in for help on their blogs, and many claim CPS has made false accusations against them.  The former organization has an article webpage that is titled What to Do if CPS Agents Are Investigating You, which, aside from their legal disclaimer, has information on it to help parents know their rights, and what to do if they are being accused.  There is also a FightCPS webpage on the U.S. Constitution (2000) and parents’ rights, saying “One of the most important things you can do - if you are in the middle of a CPS case - is to learn what your rights are, starting with the Bill of Rights: the first ten amendments to the United States Constitution.  You may be persecuted by CPS agents who are using unconstitutional laws or unconstitutional interpretations of laws to harm your family, but unless you know your rights and can figure out how to sue the workers to protect your rights, they will have every opportunity to take advantage of unfair laws in your case.” 

           It is important to note that if actual charges are brought up against the parent(s) then the judicial system becomes involved, and although these things may start out as a civil matter, they can sometimes wind up as a criminal case.   People who visit the FightCPS website often feel helpless against Big Brother and the strong arm of the law.  This author is personally aware of the details of a CPS sexual abuse case (told here with permission by anonymous) that occurred in El Paso, Texas in 2006 where a young child falsely accused her step-father of performing sexual acts with her, but she also blamed another male family member in the CPS videotaped interview, when in actuality it was the next door neighbor who was the ONLY one who had molested her for two long years.  However, the man next door (who had been a trusted friend of the family and extended family for 19 years) had evidently advanced toward her so slowly that no outward signs appeared until she had hit her limit, which was just weeks before the parents found out what had been happening to her. 

           The problem came in because the child was mentally “slow” and had cognitive issues since birth, regularly mixed fact with fantasy, had been held back in second grade and struggled with standard concepts (such as time/dates), and lacked general common sense.  Plus the molester next door, who had confessed and become a registered sex offender, had taught her how to lie, so she suffered a form of Stockholm Syndrome (protecting one’s abuser) and refused to admit what was happening to her when asked, nor did she make an outcry on her own.   Her outcry, of sorts, was indicated by her own deviant sexual behaviors, which became out of control and were witnessed both by the mother and step-father separately, and corrroborated by both (to each other).   When they began seeing the behaviors they tried to figure out what was happenning, and kept her from even going outside to play at her friends’ homes, but they had no idea that it wasn’t someone at school, or elsewhere either.  There was simply no proof, and when asked she would deny anything and everything.  They had no idea that she was sneaking out at night to go next door while everyone else in the household was asleep.  The molester next door had told her not to tell anyone about what they had been doing together, especially not her mom.

           It was because of the girl’s strong two-year habit of protecting her real abuser that she did not want to discuss what he had done to her at the CPS interview, so transposed the details onto her step-father instead (only recognized by those family members that knew her, but certainly not by CPS, and CPS refused to allow the parents to see the videotaped allegations against the step-dad until about a year later), plus she mixed up details in her head due to mental expectations and soliciting sexual behaviors to her step-father, even though he checked her for bruises or marks at the time, and then smacked her bottom once and told her to go and “never do that again!”  Another time their daughter had asked about some private things she had found, so realizing that she had already been poking into hidden places in the parents’ room – where she didn’t belong – the step-dad thought fast and struck a deal in order to exchange information for information … a few words about the private things in exchange for the “secret” she kept saying she had, but had – up to this point – refused to tell.  It worked!  The step-dad found out that her secret was what the neighbor had done to her, and he told his wife so they could take further steps to protect their daughter.

           The CPS interview was where everything went bad, because the innocent, victimized girl confused stories and facts in her head, due to fantasies she played out in her mind and the cognitive problems she had, and didn’t have any idea that continuing to tell stories and lies about the real sexual abuser, by blaming other males she knew, would get them into legal trouble.  After the videotaped interview CPS and the detective, who had sat behind the one-way mirror listening to everything, conspired a plan.  CPS removed the child from the parents without their knowledge, while the detective took the mother – who did not know her constitutional rights – into his office and used threats of arrest to coerce her so that, under duress, she would “tell every detail” about her and her “husband’s sexual lives,” all without reading her the Miranda warning.  This violated spousal privilege as well.  The detective told the mother that he believed she didn’t know anything about her husband “molesting” her daughter, and then talked to the husband in the same manner (no Miranda) and even deleted exculpatory evidence from the report before printing it out for the husband to sign.  So much happened so fast that they didn’t know what hit them, but they knew they had to comply fully or they would be arrested, since the detective told them so.  In fact, despite the detective’s words to the mother, he still had her arrested so that the DA’s office could use extortion against her to try to force a false testimony from her so they could try to convict her husband.  She refused, of course, and they had no choice but to drop the charges against her (probably fearing a lawsuit since she was so angry over it all).

           The end result was a 2 ¾ years legal battle, the destruction of their family (permanently), unbelievable grief and loss, the little girl exhibing new symptoms of PTSD and sobbing for up to two hours at night because she wanted to come home, plus tens of thousands of dollars down the drain in legal and associated fees, prescription medicines for anti-anxiety and anti-depressants, and a trial that was cut short by the judge so he “could leave town.”  The trial error was most grievous because the case wound up in a conviction because the prosecution had two full days, while the defense only got a half of a day for a portion of the defense (even one of their subpoenaed witnesses was not allowed on the stand).  The final result was that, due to CPS’s and the corrupt cop’s unscientific and jump-to-conclusion methodologies/investigation, the husband was convicted for 10 yrs with no chance for probation, while the real sex offender plead guilty within a year after his arrest, and the same prosecutor offered him 10 years deferred adjudication probation (which means if he follows the rules during that time they will drop all charges and he will be considered “innocent” of what he did to their daughter for two long years). 

           The same judge that cut the step-father’s trial short, yelled at and humilated the mother and said she should be in prison as well, and then refused to make the real sex offender move away from next door (only to get on a waiting list for a place that has no official waiting list, and no requirements to make him keep looking anywhere else, or to put a deposit on a place), so her daughter could not come home.  Three years after this began, with parents who were trying to help her, she wound up being the greatest victim of all due to the inept way CPS handled the case from the beginning.  The girl had her own lawyer that her grandparents paid for since she had recanted her story within months after she had been removed from her home (she stayed consistent for over two years in saying that her step-dad was innocent) but it did no good in the end due to the videotape and an overzealous prosecutor who used it along with an appeal to prejudice, and fabricating motives (that were nonexistent within the step-dad), and claiming he was the one lying in order to convict him.  This does not include the exculpatory evidence the ADA ignored in court that the girl had told her in her private office – that the drawing she had drawn during the videotaped interview was “made up.”  That same drawing was used in court as FACT (as if it were true) despite what the girl had told her in confidence.  The CPS interviewer also played a part in saying everything on the video was true, when in fact it will filled with contradictions throughout its entirety.  The girl’s biological father even sided with the step-father and insisted he was innocent, but after he saw the videotape, he said he KNEW he was innocent!  It was very clear to those who knew how the girl thought, and the cognitive issues she had.
           There has been some debate over whether CPS or the state (such as the prosecution) should videotape the interviews of children who have been abused.  Ira and Deborah Colby (1987) wrote Videotaped Interviews in Child Sexual Abuse Cases: The Texas Example.  Legislature passed a law in 1983 allowing child abuse victims to be videotaped during their interviews.  The data covered how this law protects not only the victim, but also the perpetrator, and the public at large.  Although, like in the case mentioned above, such interviews can be used against alleged perpetrators in order to convict them in a jury trial (the tapes have a strong reputation for convincing juries of guilt, even if it is not true), the same tape can later be used by the convicted/accused in order to exonerate himself, because every single detail and error can be countered line by line.  So ultimately there is a safety net hidden within the dramatic instance of how such tapes can be used against citizens.

           Frank E Vandervort, in the (2006) article Videotaping Investigative Interviews of Children in Cases of Child Sexual Abuse: One Community’s Approach, sought the opinions of the public on whether children who are suspected in being sexually abused should have their interviews videotaped.  He brought both qualitative and quantitative data together from one county’s records to show videotaping of interviews can help the community overall, especially when combined with other methods of investigation.  In this situation both the prosecution and defense in legal matters can be generally satisfied.

           Susan Perlis Marx is the author (1996) of Victim Recantation in Child Sexual Abuse Cases: The Prosecutor’s Role in Prevention.  Based on the story of an actual family case study, she digs into the reality of why children of sexual abuse recant, and how this creates possible problems regarding the child’s safety, as well as the ability of CPS and the criminal justice system to do their jobs. The main recommendations were made based on one story that is typical, and although the author acknowledges – in the Notes after the Conclusion – that recantation can also occur out of false allegations, she says it is rare.   The latter, as a possibility, was not covered in her study, and it is now obvious, based on cases like the one this author discussed above, that such studies on false accusations should be more thoroughly investigated using the scientific method instead of bias or ignoring of the facts.  Just because someone is accused does not make them guilty, as evidence by CPS’s two-thirds dropped cases due to a lack of evidence.

            Levenson and Morin (2006) wrote Risk Assessment in Child Sexual Abuse Cases.  Risk assessment models in CPS (Child Protective Services) have not been proven as effective mistreatment predictors, especially concerning the misleading data surrounding child sexual abuse. Recidivism risk factors for sex offenders should be part of the modeling in order to help determine the risk of mistreatment to other children in the future.  Literature was researched on recidivism rates and risk factors in sexual offense cases, and then discussions on incorporating them into CPS models was revealed, producing a new model that is based on factual evidence. 

           It is not a far reach to see that having successful models for recidivism rates for criminals that actually do molest children might also help identify when the falsely accused do not fit that pattern.  It is important to remember that profiling methods, however helpful, is still a product similar to stereotypes, except in reality its opposite – it falls under the ecological fallacy – where just because particular features are found within a group of people, it does not mean that individuals are actually part of that group just because they share some of those attributes.  Police officers, prosecutors, and CPS investigators or workers should have adequate training so they are aware of the ecological fallacy, to promote proper investigation into every individual case, and inhibit the tendency towards false accusations based on aggregate “profiling” data.

           False allegations or accusations sometimes go as far as they did with the CPS investigator in El Paso, Texas who, within weeks of the videotaped interview, told the mother, biological father, and grandparents of the little girl whose step-dad they ALL KNEW had been falsely accused, “He’s convicted.”  The mother replied, “No, he’s not convicted until a jury says he’s convicted.”  The CPS investigator snapped back with a verbal threat, “Oh yes, he’s convicted, and if you go against me on it I will fight you tooth and nail!”  Such prejudice and bias, and outright disregard for due process (Fifth Amendment), it seems, is alive and well within the El Paso office of Child Protective Services, but this is not the only corruption found in CPS. 

           This congressional session had SB 1440, which has been called The Take Away Your Child Act (bill: http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=81R&Bill=SB1440) debated, with controversies in the media because the bill would give CPS more power than they already have, thereby removing parental rights even further.  As of this writing the bill is in the hands of Texas Governer Rick Perry, awaiting either his approval or veto.  As a social conservative, and a promoter of the death penalty, and punishment in general, there is speculation that he will not veto it, even though the public is outraged and making a huge fuss over the unconstitutionality this particular bill.  What will happen in Texas next if CPS is granted the power of God (or the power of the adversary, if one prefers) over parents and families rights? 

            According to the KidJacked website on case law, titled Parental Rights in Case Law

Parenting rights are God given! it says:

“Parenting rights are God given. They are also protected by the First, Fifth, and Fourteenth Amendments to the

            Constitution In Troxel v. Granville , 99-138 [U.S. 06/05/2000 U.S. Supreme Court, November 1999], the Supreme Court ruled, [49] The

               [50] The liberty interest at issue in this case -- 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.”

This Senate Bill (1440) may reverse the precedence that had stood, even though it had only been partially adhered to by CPS, and in some cases discussed in this writing, not at all.  Sexual abuse cases are a particularly volatile subject since the judicial system doesn’t kick in until after accusations are moved upon via criminal proceedings (most CPS cases start out as civil cases so people don’t often obtain legal help from an attorney until it is too late).  Much controversy is entailed in the implementation of CPS (Child Protective Services) procedures and protocols, particularly in sexual abuse cases, and legislation surrounding parental rights has both helped and hurt the adversarial nature of CPS’s role with the criminal justice system. 

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Resources

Colby, Ira C., Colby, Deborah N. (1987). Videotaped Interviews in Child Sexual Abuse Cases:
           The Texas Example. Child Welfare, 66(1), 25.   Retrieved May 31, 2009, from Research
            Library database. (Document ID: 2758240).

FightCPS. (2000, October) U.S. Constitution. Retrieved June1, 2009 from
            http://www.fightcps.com/articles/constitution.html

Hall, Annette M.(2008, February). Parental Rights in Case Law, Parenting rights are God given!
            Retrieved June 1, 2009, from http://kidjacked.com/legal/case_law.asp

Levenson, Jill S., Morin, John W. (2006). Risk Assessment in Child Sexual Abuse Cases. Child
            Welfare, 85(1), 59-82.  Retrieved May 31, 2009, from Research Library database.
            (Document ID: 1257643431).

Library Index, Net Industries (2002). How Many Children are Maltreated? - Cps Maltreatment
            Reports. Retrieved June 14, 2009, from
             http://www.libraryindex.com/pages/1382/How-Many-Children-are-Maltreated-CPS-MALTREATMENT-REPORTS.html   

Marx, Susan Perlis. (1996). Victim recantation in child sexual abuse cases: The prosecutor's role
           in prevention. Child Welfare, 75(3), 219.   Retrieved May 31, 2009, from Research
            Library database. (Document ID: 9627601).

Texas Department of Family and Protective Services, (2009, June). About Child Protective
            Services. Retrieved June 14, 2009, from
            http://www.dfps.state.tx.us/child_protection/About_Child_Protective_Services/

Texas Supreme Court, (2008). No. 08-0391 IN THE SUPREME COURT OF TEXAS In re Texas
            Department of Family & Protective Services, Relator, Original Proceeding from Cause
           No. 03-08-00235-CV in the Third Court of Appeals, Austin, Texas. Retrieved June 14,
           2009, from http://www.supreme.courts.state.tx.us/ebriefs/08/08039107.pdf

Vandervort, Frank E. (2006). Videotaping Investigative Interviews of Children in Cases of Child
Sexual Abuse: One Community’s Approach. Journal of Criminal Law & Criminology, 96(4), 
1353-1416.  Retrieved June 1, 2009, from Research Library database. (Document ID: 1190701591).

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