Another Texas Family Victory

Should parents be investigated for physical abuse because they put their baby down for a nap and the baby cried? One Texas judge said yes, requiring the parents to submit to a search of their home and forensic interviews with their children.

But on October 14, the Court of Appeals for the Twelfth District of Texas reversed that decision. Parental Rights Foundation president Jim Mason, in his role as vice president of litigation for Home School Legal Defense Association (HSLDA), served as legal counsel in this victory for families.

Court Ordered Home Invasion

Here’s the story:

On August 17, Jessica Tullberg of the Texas Department of Family and Protective Services went to the home of Matthew and Tabitha Berryman to investigate an allegation of child abuse or neglect. The report alleged that the parents placed their infant daughter on the floor in a closet and left her to cry “excessively” until she fell asleep.

Tullberg visited the home and met Tabitha, who would not let her in the door. Yes, the family was using a large walk-in closet, equipped with baby monitors and appropriate furnishings, as a nursery for the new baby. And they did sometimes place her on a blanket on the floor to nap.

But since Tullberg had no other allegations than these, Tabitha saw no reason to subject her other children, her husband, or herself to a full-fledged investigation. Instead, the mother brought her baby outside for the investigator to see that there were no bruises or other marks of abuse on her body.

Unsatisfied, Tullberg left and went to family court judge Tim Womack for an order. In her report, she outlined the details listed here and the fact that Tabitha would not let her in the family home to continue her investigation. She requested an order from the court that would require that the Berrymans let Tullberg in the home, that they let her interview their children individually and without their parents around, and, should it prove necessary, that they let her transport the Berryman children to and from any forensic interviews.

On no other allegation than that the parents put their infant daughter on the floor in a closet to sleep, Judge Tim Womack granted Tullberg’s request and issued an order for the family to comply with her investigation.

Fighting Back

But the Berrymans had already been in touch with Jim Mason and his team at HSLDA. They replied quickly to Womack’s order, filing for an injunction to stay the order. When that was denied, they filed for the writ of mandamus with the Twelfth Court of Appeals.

That court suspended the order until they could review it, and, on October 14, returned their ruling in the family’s favor. The appeals court found that Judge Womack had abused his discretion as a judge when he issued the order compelling the Berrymans to comply with Tullberg’s baseless investigation.

First the court took issue with the fact that Tullberg had classified the contact as a Priority One intake—meaning one in which the child “appear[s] to face an immediate risk of abuse or neglect that could result in death or serious harm” (emphasis original). Like us, the court saw no conceivable way that putting the baby down for a nap on a blanket on the floor could result in “death or serious harm.”

“Nor do Tabitha’s alleged actions, standing alone, meet the definitions of abuse or neglect,” the court continued. And this was the heart of the case.

It was not necessary to prove or disprove the allegations against the family. Even if the allegations were true, they were neither neglect nor abuse. So why should the family be under investigation and forced to allow the state to intrude into their home?

The court pointed out that it is common for parents to put an infant on a blanket on the floor for a nap, and that many parents believe in letting their baby cry. The court even cited publications by the Department of State Health Services (one of which was coauthored by the Department of Family and Protective Services!) that advised parents to employ these practices.

And there is no law against converting a large closet into a small nursery.

“That the Department, or a trial court, may disapprove is insufficient to overcome a parent’s fundamental right to make decisions regarding her children’s care, custody, and control,” the court added, citing the US Supreme Court case Troxel v. Granville, 530 U.S. 57, 66 (2000).

Another Win for Parents

This case is a win for parents because it upholds family privacy and the Fourth Amendment. It preserves the fact that one must have evidence—or at the very least a credible allegation—of actual abuse or neglect before the government can force its way into a family home or insert itself between a parent and her children.

In this case, the department had neither, and the appeals court was willing to call them on it and require a correction.

While the Parental Rights Foundation as an organization did not weigh in on this case, it nevertheless represents another victory for parents in what has been a successful year. From our earlier amicus brief in the Supreme Court of Texas supporting a father’s parental rights to our interventions in New York and Oregon to remove innocent names from child abuse registries, we continue to support parental rights wherever they—and the children they ultimately protect—are at risk.

Thank you as always for standing with us. Please consider making a donation today to support the vital mission of protecting children by empowering innocent parents all over the county.


Michael Ramey
Executive Director