The Texas Public Policy Foundation filed an amicus brief in the Twelfth Court of Appeals in support of a family subjected to a wrongful investigation by the Texas Department of Family and Protective Services (DFPS). TPPF’s amicus brief highlights constitutional defects in the statute used by the Department to sue the Berryman family to forcibly enter their home and remove their children.

The case started when a CPS investigator showed up at the Berryman family home to investigate a report the Department received alleging that the family’s infant child slept in a closet. The child’s mother cleared up the confusion, informing the investigator that the family had converted a large walk-in closet into a nursery and that the child had proper sleeping arrangements. She even allowed the investigator to examine the child, who “had no visible physical injuries” and “appeared to be clean and healthy” according to the investigator’s sworn statement.

When the investigator requested permission to search the home and interview the family’s other children, Mrs. Berryman exercised her Fourth Amendment right to withhold consent. In response, the investigator obtained a court order compelling the Berrymans to allow her to search the house and even authorizing her to remove their children to a separate location for an interview.

“It’s fitting that our brief was filed on the anniversary of the signing of the Constitution,” said Andrew Brown, distinguished senior fellow of child and family policy at the Texas Public Policy Foundation. “The Department often uses this vague statute as a way to get around basic Fourth Amendment protections against unreasonable searches and seizures. The Constitution was written to secure the blessings of liberty to the people. Our brief reminds the Department that it applies to them.”

The family filed a petition for a writ of mandamus in opposition the trial court’s unconstitutional order. It is currently pending before the Twelfth Court of Appeals.

“This mandamus proceeding affords the appellate court an opportunity to affirm protections for parental rights inherent in the constitutions of Texas and the United States,” said TPPF General Counsel Robert Henneke. “CPS does not have unlimited power, and it is right for the courts to check the abuse of discretion of both the trial court and the department.”

“All too often, the Department and lower court judges treat family law proceedings as if they are somehow exempt from traditional constitutional restraints,” said Chance Weldon, a TPPF attorney. “They are not. And this proceeding gives the appellate court the chance to say so.”

The family is represented by the Home School Legal Defense Association.

To read the full amicus brief, please visit:

https://files.texaspolicy.com/uploads/2020/09/18120508/TPPF-Amicus-Brief-Berryman.pdf