Evidence standards for taking possession of a child by the state in child welfare cases in Texas (and most other states) are rather low. Currently, a determination of child abuse and neglect needs merely a preponderance of the evidence to designate a Reason To Believe (RTB) disposition and lands the parent on the Child Abuse and Neglect Registry. This means that the evidence must only tip the scale to a 51% likelihood that abuse or neglect occurred. Another rather vague standard in the state Codes uses the “person of ordinary prudence” plus “personal knowledge” language that is very much left up to the interpretation of a very subjective investigator who has a bias towards confirming allegations instead of confirming innocence.
The system pretends that this phenomenon known as “Confirmation Bias” (a tendency to view the facts or circumstances in a case as supporting an allegation instead of denying it) does not play a part in the manufacturing, misconstruing, and misrepresentation of events, documents, or interviews, which are then presented as “personal knowledge” and sworn out in an affidavit. This affidavit will find its way to the prosecutor who will subsequently present it to a judge. Most of the time these events occur ex-parte so that parents have no way to defend themselves. It also doesn’t seem to matter that once a family has their “day in court,” very often testimony and documents are presented to the judge proving the investigator or caseworkers have committed PERJURY. This is unacceptable!
The solution is to require ICWA (Indian Child Welfare Act) parity for evidence standards. The “clear and convincing” standard should be the required level of evidence to demonstrate why a removal was necessary to show all other less traumatic means were attempted and/or ruled out given the facts of the case. CPS should be REQUIRED to list ALL reasonable efforts (see Reasonable Efforts Policy) that were attempted to prevent the removal. Currently, most jurisdictions merely make the statement that the efforts were made without any details. Additionally, judges should be required to ask investigators and caseworkers what the exact efforts were that they considered as reasonable and, if none existed, CPS should have to explain why. This level of accountability by the State needs to be the rule and not the exception.
Likewise, when parents face the termination of their parental rights, the evidence standard before their families are destroyed should always be “beyond a reasonable doubt” because this life altering event destroys familial ties and heritage permanently traumatizing everyone involved. This should never happen without the highest standard of evidence.
The Brady Rule should be in effect for any suit affecting the parent child relationship even if the matter is considered Civil instead of Criminal. The rule requires that the prosecution must turn over all exculpatory evidence to the defendant in a criminal case; thus, for CPS cases, if the State welfare agency possesses this type of evidence, the parents should not have to “discover” it. If the state is going to accuse parents of abuse and neglect and possibly end up terminating their parental rights, ALL evidence that the prosecution (CPS/State) possesses, although it is considered a Civil Matter, should automatically be shared. This includes school records, medical records, psychological records, witness interviews, forensic interview tapes, and even foster care records with appropriate redaction when necessary.
Of particular harm in medical cases, where a doctor, nurse, or hospital is the accuser of the parent, medical and hospital records are routinely withheld from parents. Often these documents contain the exonerating evidence the parents need to defend their families and it should be noted that this is a heinous violation of HIPPA (see Medical Records Policy). Changing the Evidence standards in CPS cases alone would provide much needed Constitutional Due Process for families facing unwarranted government intrusion into their families and with ICWA parity all families would have a better opportunity to defend their families and also get the help they might need if there are issues that actually need to be addressed.