The Texas Legislature passed a swath of bills to help tackle a troubled foster care system and a yearslong court case that alleges that the state put children in custody at risk.
The legislation was focused on prevention rather than cure. The new policies focus on preventing children from entering the system rather than focusing on the condition of the children already there.
The bills change how child abuse investigations take place, by expanding parental rights for those under investigation. These changes make it harder for the Department of Family and Protective Services to remove vulnerable kids from homes.
Although a bill mandated that the state provide foster kids with duffel bags and backpacks to transport their belongings — instead of trash bags. Another bill also sets up bank accounts for kids who age out of the system.
The state has been fighting a federal lawsuit for more than a decade for putting children in foster care at risk. In 2015, Judge Janis Graham Jack, who presides over this lawsuit, declared that the children age out of the system more damaged than when they entered. In the following years, court watchdogs have reported multiple safety violations which include, caretaker’s misuse of psychotropic drugs, residential facilities not complying with safety standards and the state welfare agency not tracking child-on-child abuse.
The legislation largely focused on keeping children with their families whenever possible, identifying the traumatic experience children who enter the system endure.
To ensure this, caseworkers will have to provide documentation proving that they did everything to keep kids with their families, the state abuse line will no longer accept anonymous tips and parents under investigation will see a boost in legal representation and rights.
“We’re in a period in history right now where things are swinging very much towards having the smallest possible system, really prioritizing parents’ rights,” Sarah Crockett, the director of public policy at foster kid advocacy group Texas CASA, told the Texas Tribune.
The approach is supported by both social conservatives that promote family values and progressive child welfare abolitionists, who want the system to go away. Policies preventing children from entering the foster care system and helping children stay with their families when possible have been backed up by advocates at both the state and federal levels.
“The language being used is now much more uniformly centered around family preservation, which is a massive culture shift,” Andrew Brown, a policy advocate at the conservative Texas Public Policy Foundation, told the Texas Tribune. “I’m hearing more mainstream conversations about the trauma of removal.”
The focus on parents facing investigation aligns with the movement within the Republican Party, to give parents more rights. Which includes giving them tax dollars to have “school choice” and limiting what teachers can teach in schools.
However, the changes in how and when the state can step in during cases of child abuse and neglect is met with some anxiety.
“This system is traumatic and stressful for children and parents. I absolutely do think that we should do everything that we can to keep the child with their family,” Crockett told the Texas Tribune. “And it’s also true that child abuse is still happening. And so how do we balance those two things? I think it’s not straightforward, and that’s what makes it really hard.”
The six bills will go into effect on Sept 1, here is a breakdown of what they are and what they do:
Limitations on How to Report Abuse and Neglect
While anonymity can protect those afraid of revenge, lawmakers have said that anonymous tips open doors for false reports as well. According to Texans Care for Children, in 2020, approximately only 1,000 of the 12,473 anonymous reports led to findings of abuse.
House Bill 63 will end anonymous reporting of child abuse or neglect, changing how investigations are initiated. Under the new law, DFPS will be required to obtain the caller’s identity. Although all reports will be confidential, this is an extreme approach to weed out false reports.
The end of anonymous tips is expected to lower the number of child abuse tips the hotline gets and bring down the number of parents in investigations regarding child abuse or neglect.
While the bill got the governor’s support, it received some pushback during the legislative process. Sen. José Menéndez (D-San Antonio), raised concerns that ending anonymous reporting could keep people from reporting abuse.
“None of us in this room want any child to suffer abuse or neglect. And I would hate for us to vote for a policy where the tradeoff is … [having] a child possibly die from abuse or neglect,” Menéndez said on the Senate floor.
Changes in Child Abuse Investigations
At the early stages of a child abuse investigation, child welfare investigators make contact with the parents under investigation and can then face multiple rounds of interviews, drug tests and home inspections. These parents face an intense examination and the results determine whether the child stays with their family or enters the foster care system.
House Bill 730 changes that process; caseworkers now have to notify the parents accused of abuse or neglect of their legal rights, such as the right to have their lawyer present and their right to refuse to answer any questions; similar to when police officers read the Miranda rights to suspects.
The foster care system is adversarial to parents accused of abuse and neglect, particularly in how caseworkers approach investigations, Julia Hatcher, a family defense lawyer in Galveston, told the Texas Tribune.
Caseworkers have aligned themselves with police officers in their interactions with families, Hatcher told the Texas Tribune.
“They show up and interrogate parents and they try to collect evidence like getting medical records, interviewing children, requiring drug tests, threatening them,” Hatcher told the Texas Tribune. “That’s what a cop does. … We’re saying, ‘OK, if you’re going to act like a police officer, we’re going to start treating you like one and now you’re going to have to give everybody their rights.’”
In case a parent refuses to allow the investigator into their house or refuses to be interviewed, the investigator can request a court order requiring access from a judge. However, this year lawmakers passed HB 730, under which, in order to get that court order, DFPS will have to show probable cause which requires more evidence than the current standard.
After a DFPS investigator determines that there is enough evidence of abuse or neglect to warrant removal, the case will go in front of a judge in court.
In 2021 the state legislature passed House Bill 567 which stopped DFPS from removing children in non-emergencies. In addition to that, the bill also established a new definition of neglect that prevents parents from losing their children solely due to marijuana use.
At this point, parents involved in a DFPS case are supposed to be appointed attorneys if they can’t afford one. Lawyers appointed to represent low-income parents will be required to have certain qualifications under Senate Bill 2120. Sen. Judith Zaffirini (D-Laredo), who authored the bill, said that this bill was a product of a suggestion from the Texas Judicial Council.
In order for a judge to grant removal, the state will now be required to meet more checkpoints. Investigators will now be required to document all reasonable efforts they made to keep a child with their family in court affidavits as required by House Bill 1087.
An attorney who represents kids and parents in DFPS cases, Elizabeth Spears, fears that these new laws could lead to children experiencing abuse to stay in their unsafe homes for longer.
“The failing in the laws is that the standard is so high now for a child to be removed,” she told the Texas Tribune.
Programs to Prevent Abuse Get More Funding
The state will provide more funding to a wing of the Department of Family and Protective Services, known as Prevention and early intervention programs, which is designed to prevent child abuse and neglect by investing in services for at-risk families across the state.
The services range from parenting classes, home visits from nurses for pregnant moms and short-term counseling.
These investments are aimed at preventing child abuse and interactions between Child Protective Services and families altogether.
Kate Murphy, the director of child protection policy at Texans Care for Children told the Texas Tribune, that the wing saw investments this year, at a $65 million increase, which comes from a record state budget surplus.
“It sends a very clear message that the Legislature is interested in keeping kids safe with their parents out of the foster care system,” Murphy told the Texas Tribune.
The funding was approved alongside a bill that transfers the prevention wing to Health and Human Services Commission from DFPS.
While Senate Bill 24, is an administrative bill, advocates say that it points towards where the Legislature is headed next, curing down responsibilities DFPS handles when it comes to investigations and contract management. Through a community-based care model, the agency is already in the process of outsourcing the management of foster kids’ cases to local and private providers.
“What we are seeing a lot of is a real shift in the future of the child welfare system and the future of DFPS. DFPS is going to be just doing investigations and then overseeing community-based care,” Crockett told the Texas Tribune. “I think that the agency itself has been so plagued for so long in scandal and hardship and the Legislature is really looking for, ‘How can we move beyond just a constant crisis into something different?’”
Backpacks and Bank Accounts for Foster Kids
The legislators filled in gaps of support for children already in the foster care system.
The state will now be required to provide every child with a duffel bag or backpack after they are removed from their homes under House Bill 3765. Until this bill, which was easily passed in both chambers and approved by a landslide, the state’s most vulnerable children only received trash bags for their belongings.
The first-of-its-kind bill was filed by Rep. Josey Garcia (D-San Antonio), who told the Texas Tribune that the bill was long-awaited for former foster kids like herself. She recalled that when she was first placed in her first foster home 35 years ago, she was only given a trash bag to get her few belongings, a copy of the Bible and two outfits, one pink and one blue.
“By showing this simple gesture of providing a cloth bag for them, you have no idea how much you are going to touch these children who have been treated like trash,” Garcia, who bounced between foster homes growing up, told the Texas Tribune. “You’re telling them they’re worth more than the trash bag their belongings are in.”
According to the Adoption and Foster Care Analysis and Reporting System, in 2021, approximately 39% of foster kids experienced three or more placements. In some cases, the kids may have encountered dangerous conditions, court watchdogs in the federal lawsuit have compared these placements to “jail cells.”
Senate Bill 1379 will direct the state to help kids who age out of the system to set up checking and savings bank accounts. This seeks to help young adults to establish financial security as they transition to adulthood.
At the start of the COVID-19 pandemic when young adults formerly in foster care were eligible for federal pandemic aid money, many Texans could not access the stipend due to not having bank accounts to deposit the money in.
“We know that bank accounts can be a barrier to even getting certain jobs. Because if you don’t have a bank account and you can’t get a direct deposit, they might not be set up to pay you,” Murphy, with Texans Care for Children, told the Texas Tribune. “This bill is really just to help fill that basic need.”