In the final hour of a daylong Health and Human Services committee meeting for the Texas House of Representatives last November, Sammi Jo Magee took the microphone. Magee, the chief prosecutor in the Child Protective Services division for Taylor County, Texas, which includes Abilene, had been summoned to explain why Taylor and surrounding counties were taking more kids into foster care than any other region in the state.
Last year, Taylor County removed children at four times the rate of the rest of the state, and at ten times the rate of Texas’s largest county.
“It’s often treated as some mystery, but the situation in Taylor County is very, very simple,” Magee told the committee. “In 2013, Taylor County’s numbers were pretty similar to the rest of the state. Shortly after that, Taylor County started doing something different in how they handle investigations.”
They started drug testing a lot of people — including children.
“If there’s confirmed drug use by a caregiver — confirmed meaning they’ve admitted they use methamphetamines, or the investigator was doing a walk-through of the home and they came across a crack pipe — at that point they will drug test the children, which is not a universal function of CPS investigations,” Magee said. “We do it because it matters.”
Committee chair Rep. James Frank (R), who represents Wichita Falls, north of Abilene, asked Magee who, specifically, implemented the policy: “So you have your own investigative unit that’s going out and seeing kids?”
“Well, CPS investigations. They’re my team, we’re on team justice, right?” Magee replied. “[It’s] something the investigators in Taylor County do that is not uniform across the state of Texas — same agency, same job, different procedure.”
Rising Role of Drugs in Foster Care Cases
This scene at a public meeting highlighted what appears to be an extraordinarily rare approach to a common problem addressed by the child welfare system: Parents who use drugs, and whether their substance use has caused their children harm.
Substance use has long been a common contributing factor in removing children from their parents, and nationally, that number has been increasing. From 2007 to 2017, nonprofit research center Child Trends found that the rate of children entering foster care due to parental substance use rose 57%. In 2018, 67% of the removals of children in Texas by the Department of Family and Protective Services listed parental substance use as a contributing factor.
Magee testified that in “about two thirds” of cases where the children are drug tested, the results are positive, possibly from exposure to drugs like methamphetamines, which contaminate surfaces and other porous materials. She pointed to research about the effect of such drugs on developing brains.
Of the 73 efforts to remove children from parents’ custody in Taylor County in 2020 so far, 21 cases have included a court-ordered drug test of the children, according to data from the Taylor County District Attorney’s office. Magee said the investigators seek consent from the parents first to take their children to get a sample of their hair tested by a lab, but if consent isn’t given, a court order will follow.
In nine of those 21 cases, at least one child tested positive for drugs in a hair sample, and the department is seeking removal in seven of them. Another 11 cases haven’t been updated since the drug test orders were given.
Magee said, though, that many of the drug tests happen before there’s a court order, making those numbers just a fraction of cases where drug tests could influence removal decisions.
“It is primarily coming from the collaborative effort of DFPS, our investigations team here in Taylor County and the DA’s office. The judge has a limited role; when we’re getting drug tests for the kids, the judge hasn’t seen the kids yet. Then the judges are applying the law as it’s written,” Magee told The Imprint.
Claire Mehaffey, a lawyer who represents parents in CPS cases in Taylor County, said that because consent is sought but a court order is virtually always granted, her clients are in a no-win situation. “I don’t know how to advise parents on what to do and what are your rights — yeah, you can say no, but they’re just going to get a court order,” Mehaffey said.
She also said that Taylor County’s policies ensnare people who shouldn’t be tested. In one example, she spoke of a client who called the police over a domestic violence incident, and the police called in a social worker, who asked to drug test the mother — the victim of violence, not the perpetrator.
She declined, because she knew she had ingested marijuana. Prosecutors got a court order from a judge to drug test her and her children. “Now we’re talking about removing her kids,” Mehaffey said. “The department will say until they’re blue in the face that they don’t remove kids because of positive marijuana, and I’ll say, sure, they are always able to point to something else, but the reason they’re involved is marijuana.”
Treatment a “Significant Unmet Need”
Policy experts in Texas have been pushing for reforms to the state’s current response to parental substance use, which relies heavily on removals. In 2017, substance use was cited as a contributing factor in 68% of removals in the state. A 2019 report by Texans Care for Children found that, in those cases, the most common substance is marijuana, at 31%. Nearly all of the cases of removal involving substance use — 94% — involve neglectful supervision; only 14% of these cases involve physical abuse.
The report also notes there is “a significant unmet need for substance use intervention, treatment, and recovery services among all Texas children and adults.” In 2017, only 5.8% of low-income adults with a substance use disorder were able to get treatment from a community-based provider; that year, more than 17,000 adults were on a waitlist at such providers.
The report notes there “are only 10 residential treatment providers in Texas that contract with Texas Health and Human Services Commission and allow pregnant women/mothers and their children to stay together during the course of recovery;” more than 100 mothers were on a waitlist for a spot in 2017, waiting an average of 18 days.
“We have got to handle drug use differently than we are currently handling it,” Mehaffey said. “Just because you are using, it doesn’t make you a bad parent. It doesn’t make you a neglectful parent.”
For starters, she said, the system seldom makes a distinction between chronic and occasional use, or the severity of the circumstances of the drug use.
“There’s no conversation of, ‘Does your drug use make you a bad parent?’” Mehaffey said. “It’s just: ‘If you use, you are a bad parent.’”
Charissa Huntzinger, a policy analyst at the Texas Public Policy Foundation, authored another recent report about necessary changes to the state’s “outdated and ineffective” response to parental substance use.
“It is not my opinion that drug testing children is best practice and I don’t think that you’d find that represented in other places across Texas or even across the nation,” Huntzinger said. “It becomes extremely problematic … things could show up on a test that doesn’t directly presuppose that it was parental substance use or that it was neglectful supervision.”
Marissa Gonzales, a regional spokesperson for the Texas Department of Family and Protective Services, said the agency’s drug-testing policies in Taylor County are no different than they are elsewhere in the state, but that “there is a greater emphasis on substance abuse issues in the courts, law enforcement and child welfare community in the Abilene area.”
Broader testing policies aren’t innately a bad thing, Huntzinger said, but they are if the response to positive tests isn’t rooted in best practice. “Region 2 [including Taylor County] has the highest removal rates in the state and the highest removal for substance use,” she said. “It doesn’t suggest that they’re doing it right, it suggests that they are getting the results that they’re looking for.”
Mike Schneider, a former Harris County judge who presided over CPS cases until he was unseated in 2018, said he sees potential problems with the wide net cast by Taylor County’s drug-testing policy.
“If hair follicles go back six months, if [a parent or caregiver] might not have used in the last five months, does that show that there’s immediate harm to a child?” Schneider said. “Can you imagine what the number of kids in foster care would be in Texas if this was a statewide policy?”
The Risk After Removal
There’s also the question of the harm that takes place when a child is removed from their family, and of what happens to those children in state custody. Of the 268 children in DFPS custody in Taylor County in 2019, only 90 of them were placed in-county. That means visits with their parents are likely difficult, especially for those parents without steady access to transportation.
Of the 361 removals of the county’s children last year, 13% were Black children and 40% were Hispanic; the population of Taylor County is 8.3% Black and 24.8% Hispanic. White children made up 40% of removals in a county that is 63% white.
Last year, 179 youth in Taylor County were eligible for the Preparation for Adult Living program, which is offered to foster youth between ages 16-21 to provide services for them as they age out of care. These children in long-term care of the state were the subject of a class-action lawsuit; in 2015, a judge found Texas is violating these children’s rights by subjecting them to abuse, overmedication and repeated placement moves.
Last week, a report issued by court monitors found reforms weren’t being implemented and as a result, children were being seriously injured by abuse and even dying due to preventable failures.
Magee said that the Taylor County District Attorney’s office recognizes the harms of removal, and that the office “bend[s] over backward to keep the family together.”
“Parents, even after they’ve done something bad, we try to make sure this case is a place they’re treated with honor and respect, because it makes them more likely to succeed,” Magee said. “At the same time, there’s so many risks to these kids.”
Rep. Frank, who is an adoptive parent to two children from the foster care system, said that the system relies too heavily on removing kids from their parents. “I think we have to understand that there’s always a cost to removal of trauma on the child,” Frank said. “I think there’s an idea that we pull ‘em out so the kid is safe, and meanwhile the kid isn’t always safe, and they are always always impacted by their removal.”
Rep. Frank said his main concern with what’s happening in Taylor County was that CPS policies were not uniform across the state. “There are going to be differences based on population and elected officials,” he said, “but I don’t think it’s appropriate to be four times different.”