Child abuse and neglect is pervasive around the country, and threats to children have increased because of COVID-related government lockdowns.
There is inherent friction between the state’s interest in protecting children, on the one hand, and the Constitutional guarantees of the presumption of innocence and the right to face one’s accuser on the other. The two greatest dangers facing Texas caregivers are: the fact that anonymous tips may form the basis for a child abuse investigation, and that the DFPS bureaucracy is not subject to adequate legal supervision and restraints in the exercise of its powers.
Common Scenario Described by Victim of False Allegation
Texas DFPS shows up unannounced at the door to investigate anonymous accusations of neglect of a child. The investigator states the child was alleged to be dirty and thin. The complainant also stated that the alleged victim always appeared sad and had given up sports.
These false accusations appalled us. We informed the investigator that a doctor had recently diagnosed the child with ADHD, and the side effects of the medication included reduced appetite, bad breath, body odor, and a calmer personality. His doctor says these side effects were normal and will diminish as the dosage is fine-tuned. The investigator left, and we have heard nothing.
We are distraught and feel wronged. Do we have any recourse?
The answer is “most likely not”.
Under Texas law, the Department of Family and Protective Services (DFPS) must investigate every allegation of child abuse. Texas law also imposes an affirmative duty on residents to report child abuse, neglect, or exploitation to DFPS. Anyone who fails to report suspected abuse can be held liable for a misdemeanor or felony.
The Anonymous or Confidential Complaint
The complainant may decide whether to make child abuse or neglect allegations confidentially or anonymously. Tipsters may make allegations online at the DFPS website or by telephone. A party making such allegations in good faith is immune from both civil and criminal liability. Conversely, the party making such allegations absent good faith would face civil and possible criminal liability. If the complainant provides their name, DFPS is bound to keep it confidential.
Obviously the ability to make such an allegation anonymously increases the likelihood that false allegations will be made against innocent people for improper motives. False allegations might be made for political opinions, a bad business deal, a failed relationship, an unsettled vendetta, or a host of reasons. An anonymous tipster can fabricate allegations knowing they will never be held accountable.
DFPS Abuses of Power
In November 2018, a Texas court awarded Melissa and Dillon Bright $127,000 in damages and legal fees after a months-long legal case, in which DFPS wrongfully removed two infant children from the home, and then lied to the court about their actions. The judge also ordered the agency to craft a new regional training program for workers.
The Brights’ attorneys also called for the firing of the agency employees involved and requested prosecutors to investigate possible perjury charges. “They lied in their affidavit, they lied in their sworn removal testimony and they have -; when questioned about those lies -; taken the Fifth,” said family lawyer Dennis Slate.
Given the gravity and potential consequences of such allegations, and the powers wielded by Texas DFPS, it is advisable for caregivers to engage experienced legal counsel, such as Rosenthal Kalabus & Therrian, in these cases.