a personal call to action

by Randy Burton, founder of Justice for Children and the former Chief Prosecutor of Family Crimes at the Harris County District Attorney’s office.
urrently a partner with the national law firm of FisherBroyles LLP.

randy burton attorney

Child abuse, unfortunately, occurs far too often in our society today. As tragic as this fact is, it is equally tragic that many incidents of child abuse could be prevented. As a former member of the system designed to protect victims of child abuse from being re-abused by their family and “loved” ones, I can testify that the system currently in place is an utter failure.

As you may know, most states require any adult who suspects that a child is being abused to report their suspicions to either the appropriate law enforcement agency
(i.e., the police) or their local Child Protective Services office. The purpose of these child abuse-reporting laws is to ensure that children, the most vulnerable members of our society, receive adult assistance in getting reports of child abuse into the criminal justice system. Children in many cases do not have the ability to make their reports of these crimes due to their age or the fact that they are virtual prisoners in their homes where the abusive parent or relative also lives. Unfortunately, our reporting system is failing to work as it was originally designed. Doctors, nurses, and teachers (our front line in the detection of child abuse) are failing to adequately report because of improper hospital and school policies or out of fear of involvement.

Furthermore, merely reporting the crime to the “system” is not enough to ensure the protection of the child. This is because the protective network that consists of Child Protective Services (“CPS”), the various police agencies, the District Attorney’s office, the juvenile and family court system and the criminal court system do not work as they should. The sad result of this process is that nationwide, of the children who died from abuse and neglect, almost 50% were victims where CPS had current or prior case histories of abuse or neglect on the family. Arguably, this means hundreds of children whose lives could have been saved on an annual basis.

It was in response to these problems that I and a number of concerned citizens, both in the system and the community-at-large, formed a group called Justice for Children in May of 1987. Our community-based “watchdog” group has focused its attention on educating the public on problems that exist in the child protective system and working for constructive and permanent changes to this system. Although our group consists of individuals, who individually had attempted to improve the system for years, the case that catalyzed our organization as a group and which aroused the ire of the community was-that of Jesse Wheeler.

Jesse Wheeler was only three months old when he and four older siblings were removed for chronic neglect from their natural mother, Jacqueline Warren. Jesse was hospitalized for several months before he was placed with foster parents, Sharon and Mike Wilkens, where he remained for almost a year and a half. This was a time of healing, recovery and happiness, and he was responding fully to parental care and love when he was removed from this environment and returned to the home of his natural mother and new stepfather, Thomas Warren, on March 24, 1987.

Jesse was only two years old when this decision was made by CPS and a Harris County Juvenile Court judge in a hearing that considered the recommendations of CPS and Jesse’s court appointed attorney, but never heard the opinions of his foster parents. Jesse was returned despite full knowledge of the natural mother’s record of neglect and evidence that the stepfather had been previously indicted for rape of his four-year-old daughter (another judge dropped the indictment on the grounds that the four-year-old’s testimony could not be ruled upon because of her age).

This decision did not apply to Jesse’s four older siblings. Jesse alone was placed in the environment that resulted in the systematic physical abuse by his stepfather with the consent of his mother. The evidence proved that the stepfather had become enraged when Jesse refused to eat his pizza.

Holes and hair were found in the sheetrock indicating that Thomas Warren slammed baby Jesse’s head into the wall. Since CPS did not involve the police in the assessment, the viewpoint of law enforcement was never considered.

Pizza had been forced down his throat. He had been bruised over 80% of his tiny body by shaking, kicking and hitting. Jesse’s cause of death, which occurred on May 8, 1987, was listed as “blunt trauma to the head and asphyxiation.”

Jesse alone was chosen as the social experiment to determine what others already knew: that the Warren home was no place to raise a child. At two years of age, Jesse could barely talk, much less protect himself or call for help. Jesse expressed his fear and frustration to his foster parents after a visit with his mother the transition back “home”: “Boy crying . . . baby crying.”

The Children’s Protective Services caseworker compounded the error in this tragic decision to return the child by leaving Jesse in the natural mother’s home despite unmistakable signs of injury.

Bruising and black eyes were apparently evident to the caseworker two days before Jesse’s death, but no action was taken to remove him, Jacqueline and Thomas Warren were arrested and charged with first degree injury to a child. Both pleaded guilty and were sentenced to lengthy prison terms. In the trial to terminate the mother’s parental rights, it was found that Jesse had also been raped prior to his death.

Justice for Children was formed by individuals who believe that our public agencies share in the responsibility for Jesse’s death and must be reformed before similar tragedies occur again.

What we have learned from Jesse’s case and others like it is the following:

  • The original and sole priority of CPS was protection of the child. In 1980, a financial incentive in the form of federal funds was established to encourage preservation of the family unit and provide in-home protective services. CPS has assumed these priorities to be of equal value and has shown a marked bias towards preservation of the family at the expense of the child’s safety.
  • CPS, an agency outside of law enforcement, has become the exclusive intake point for criminal cases involving a family member or caretaker. CPS sets priorities on these cases and conducts often inadequate and improper investigations, which form the basis for prosecution. This results in a preemption of the legitimate responsibilities of law enforcement, errors in judgment, loss of evidence and contributes heavily to the outcome of death or continued abuse of children.

It is extraordinarily difficult for the taxpaying general public to measure CPS’s performance, financial or operational, to some definite standards of accountability and this results in CPS policing themselves. As a consequence of all the above, CPS controls the intake and prioritization of child abuse cases which ensures CPS’s control of referral for investigation by legitimate law enforcement agencies. This can result in late or no referral of criminal cases and additional crimes against children. Law enforcement is also culpable because they have consented in this illegal taking over of their authority. The protective custody system (in-home and foster care) lacks proper guidelines to protect the welfare of the child. Current victims often have been previously identified as victims or candidates for future abuse.

The good news is that the outcry and concern over these problems have led to a Texas Senate investigation into CPS, an internal investigation into the reporting process by CPS, and an external audit of children’s protective services statewide by the American Humane Association and a fundamental shift in the federal funding priorities from family preservation to child protection. It is hoped that these efforts will help provide statewide and national solutions to the nightmarish system we currently possess.

Until the system has been effectively overhauled, personal experience and information suggest that if you suspect that child abuse has occurred in your family or that of another, you should immediately report the case of suspected abuse to your local police agency, not CPS
This is because the police have the proper law enforcement training and priorities to make the best possible criminal case, which ultimately will ensure the best possible protection of the child. It is not enough to merely report the case to law enforcement authorities, however. In many jurisdictions, it is the policy of the police to defer the initial investigation of the case to CPS, which as previously stated has resulted in botched investigations and leaving the child at risk in the home. Therefore, to ensure the safety of the child, it is imperative that you must follow-up on the case. What does this mean? This means that if the case has been referred to CPS, you must find out who the caseworker is and make contact with the caseworker to determine the status of the case. This includes determining if the child has been placed in protective custody (i.e., foster care or a shelter) as well as whether the case has been assigned to a police officer for the criminal investigation. This also means contacting the responsible police officer and determining the status of his or her investigation. Ask on a periodic basis if the police officer has forwarded his report to the District Attorney’s office for the filing of criminal charges and, if not, find out when the police officer plans on doing this. Once the case has been referred and criminal charges have been filed, contact the responsible prosecutor and, if you have facts of the case, make sure that the prosecutor is aware of these and that you are listed as a potential witness. Your information can help make or break the prosecutor’s case. If the District Attorney’s office has declined to file criminal charges, or if the police officer has decided not to refer the case to the DA’s office, or if the CPS caseworker has failed or refused to report the case to the police, find out why and keep scrupulous notes on the entire process. If the explanations given by the various entities do not satisfy you as to why criminal charges have not been filed, contact Justice for Children at 713-225-4357. Also, consider contacting your local media to see if pressure can be applied to the system. You may succeed in bringing the alleged abuser to the bar of justice and ensuring that the child, if not in your custody, is in adequate protective custody. If the child is in your custody or that of a responsible relative or acquaintance, attempt to get the child immediately to a qualified pediatrician who has experience in the diagnosis of child abuse. If sexual assault is suspected, insist that a rape kit be prepared. If bruises are visible on the child, take pictures. It is critical that this be done as soon as possible after you suspect the abuse in order to preserve any evidence of the abuse for subsequent prosecution. Unfortunately, if the collection of this evidence is left up to CPS, we have seen in too many cases that the appropriate evidence is not collected and the case cannot be successfully prosecuted. Of course, this means that the child stays in the home and the perpetrator is not removed from his or her victim. If the child is in protective custody (i.e., foster care or some other emergency care facility), it is equally critical that you monitor this process to the extent possible. If the child is in protective custody, then the child should theoretically be under court supervision as well. The courts that typically supervise these “dependency’ proceedings are our juvenile courts which are a specie of family court. As in all court proceedings, the child’s case is open to the public and you are entitled to attend the hearings and monitor the proceedings. A separate branch of your local District Attorney’s office may also be responsible for representing Children’s Protective Services in these proceedings. It is incumbent upon you to contact the prosecutor as well as the court appointed ad litem attorney (who represents the interests of the child) and let them know what your feelings and information are with regards to the case. Let them know that you expect to be informed about the status of the case and what their plan of action is. Unfortunately, most people do not realize that there is nothing secretive about this process and that they have a right to know, just as the child has a right to expect that this elaborate and expensive process will protect the child’s interests. Since the goal of CPS and the juvenile courts has historically been to reunite the child with the family and not to terminate parental rights or place the child for adoption, be prepared for the fact that the child will probably be returned home. If this is an unhealthy environment for the child, let your voice be known. If the child is returned home anyway, monitor the case as closely as possible, and if further evidence of abuse or suspicious activity occurs, inform the authorities immediately. If you have done all these things, you have discharged your responsibilities as a concerned citizen as fully as humanly possible; you have increased the likelihood that the system will respond appropriately, and that the child will be protected. While these recommended actions may be ambitious and time consuming, your advocacy may result in saving a child’s life or preventing further abuse. Please understand that there are people in the community and at least one group, Justice for. Children, which are there to support you in this process. Only with your individual commitment, however, can the process be expected to work.