Tomi Burns didn’t know he might be the father of a second child until a Child Protective Services caseworker called him from Houston in August 2020. A woman he had briefly dated in Arlington, where he lived, had moved down to Houston and had a baby the month before. The woman was currently homeless, and CPS, concerned that her mental illness made her unable to care for her daughter, removed the baby from her custody at the hospital.
Once Burns heard the news, he immediately asked for the baby to come live with him. Her placement with him was contingent on a DNA test, but because of the crawling pace of the court, he wasn’t confirmed as the father until January. In the meantime, the baby lingered in foster care, and CPS assessed whether Burns was fit to be a caretaker.
Burns worked a steady job as a delivery truck driver, and had shared custody of his eleven-year-old daughter with another woman. But CPS found that he was twice charged with possession of marijuana when he was a teenager—about fifteen years ago—and that he had faced a family violence charge four years before, in a case involving a woman who was not the mother of either of his children. Though he’d completed a court-ordered domestic violence class and the judgment had been deferred, CPS required that Burns complete an extensive list of mandatory reviews and take classes in order to gain custody for his daughter. He turned over his pay stubs, got drug tested, and allowed caseworkers to visit his home unannounced over a period of several months. He also was required to take eight weeks of parenting classes, and undergo another domestic violence assessment and a psychological evaluation. All this despite the fact that he was not at all involved in the reason the child was removed from her mother.
Federal law dictates that children should be with their parents if at all possible, a policy that’s backed by research showing that kids do best when raised by their parents of, failing that, by family members. Child welfare advocates say in cases like Burns’s, in which family members are willing and able to take children, the child should never end up in the foster care system. “From the Supreme Court, there’s the constitutional right, the presumption that you are a fit parent until proven otherwise,” said Burns’s lawyer, Aubrie Linder. “And I don’t think that presumption was given in this case.” (A representative for the Department of Family and Protective Services, which oversees CPS, declined to comment on the specifics of Burns’s case.)
Under new rules passed by the Lege, cases like Burns’s might be avoided in Texas in the future. This year, lawmakers overwhelmingly passed a series of laws aimed at fixing Texas’s long-troubled foster care system, which is the subject of a decade-long lawsuit over its violations of children’s rights and is in the midst of a capacity crisis, with children sleeping in offices because of a shortage of good homes in which to place them. Among this slate of reforms, which some parental lawyers call “revolutionary,” is one that protects “non-offending parents,” like Burns, who were not involved in an abuse complaint from having to work with and be monitored by CPS in order to obtain custody of their child. Another major piece of legislation changed the state’s definition of neglect, raising the threshold for removing a child from a “substantial risk of harm” to “imminent danger,” with the aim of having judges order removals in only the most dire situations.
The reforms are geared toward allowing children to remain with parents in situations where poverty is confused for neglect. “Ideally, if it is a case of poverty-related neglect, a family is not separated but rather connected to resources in the community that can help them deal with those issues,” said Andrew Brown, senior fellow of child and family policy at the conservative Texas Public Policy Foundation. “Because that’s ultimately not an issue that child protective services should be involved with—that’s an issue that the family needs support to address.”
The major changes to child welfare laws have mostly flown under the radar in a session in which extremely high-profile battles between Democrats and Republicans on voting rights and abortion dominated the headlines. Remarkably, in a particularly polarizing political climate, the reforms were pushed forward and passed by legislators on the far reaches of both the left and right.
On one side of the issue were the child welfare abolitionists, including groups such as the upEND Movement, formed last year at the University of Houston Graduate School of Social Work. Abolitionists see the “family policing system,” as they call it, as beyond repair and want to dismantle it, along with police and prisons, in favor of community-led support groups and monetary support for struggling parents. Their unlikely allies were conservative activist organizations including We the Parents Texas, an advocacy group cofounded by state representative Lacey Hull of Houston, which calls for Texas to abolish CPS and have police handle child neglect and abuse cases. While the far left mainly looked at the issue through a racial justice lens and tied the child welfare system to carceral punishment, conservative groups largely focused on limiting government intrusion into the family unit, giving parents increased rights to make choices for their children without regulation. Advocates, such as Alan Dettlaff, the director of the upEND movement, say the coalition was made possible in the wake of the murder of George Floyd, when abolitionist ideas crossed into the mainstream.
“Somehow these two extremes have gotten together,” says Tara Grigg-Green, a lawyer who handles complex CPS cases in Harris County. “And then it’s like, you want the government to let you raise your children in a bunker and do homeschool and not vaccinate them? Cool. We just want them to stop taking our kids out of our community,” she says of many of her clients, who are poor and predominantly Black.
Dettlaff is happy to see reforms that limit the reach of the child welfare system, but he isn’t sure how much longer the two sides can continue to find common ground. He’d like to see the definition of neglect changed again so that only when the harm to a child is “intentional” can parents have their children removed. But he’s worried about dismantling the CPS system while Republicans remain firmly against expanding social supports, including Medicaid and monetary aid for parents in poverty. “There’s a concern of closing the front door, or tightening the front door without simultaneously expanding supports for children. And that absolutely does need to happen,” Dettlaff says.
The changes passed this year are so extensive that some longtime CPS lawyers say they need to relearn the Texas Family Code statutes. Marissa Gonzales, the DFPS media relations director, writes that the agency “is encouraged by the legislature’s support and interest this session and is actively aligning its policies and procedures with the newly-enacted legislation.”
Because case law doesn’t exist for the new neglect definition, leaving much to the interpretation of judges, it remains to be seen what kind of effect the reforms, which took effect September 1, will have on removal rates in the state. But the changes will likely affect cases like Burns’s.
While Tomi Burns took months to complete the extensive service plan CPS required of him, his daughter was growing up with a foster family, and he was able to see her only for short, supervised visits. “I was losing faith. I didn’t think I was going to get her,” Burns says. To speed up the process, Burns’s mother stepped up and offered to take custody of the child. She went through a home study, but her attempt to get her grandchild was held up because she didn’t have a driver’s license—which CPS prefers caregivers to have. Before the baby could be sent to Burns’s mother, she and her son were required to travel to Houston for five consecutive weekends to bond with the baby—a four-hour drive each way, all for a two-hour supervised visit at the CPS office.
During this time, the foster family was bonding with the baby and wanted to adopt her. When a child has been placed with a foster family for a year, the foster parents can enter the court case and argue for adoption. As the Burns family scrambled through the hoops CPS had laid out for them, that date was fast approaching. Finally, just five days before the foster parents could officially join the court case and seek to adopt the baby, a judge agreed to grant custody of the girl to Burns’s mother.
Burns now gets his daughter four days a week—less than he wants, he says, but at least she is with his family when she’s not with him. The baby turned one in June; she’s friendly, and babbles “dada” at him all the time. Still, he feels like he is just getting to know her. He chokes back tears when he talks about learning her likes and dislikes, and about struggling to let go of the time he wasn’t able to spend with her at the beginning of her life. “I really do feel like I didn’t get a fair shot at this,” he says. “And I just really don’t want this to happen to another person, you know? They might not be as lucky as me.”