Rafael Sierra smiles as he watches the face of his girlfriend, Maria Martinez, with their newborn son. It's a July afternoon and sunlight pours into their hospital room at Bayshore Medical Center in Pasadena. It's the couple's second son in as many years. Rafael hasn't slept in almost two days, too anxious from the delivery. He sits by a window to fall asleep.
Maria rests in the hospital bed, holding her baby. She's glad the big day is over and her son was born without complications. During the last couple months, Maria had checked in at Bayshore several times for intense stomach pains. She had been a little worried. But now, Maria can relax.
Rafael had left the couple's first son at his mother and stepfather's house, though he would rather have his boy with him. The relationship between Rafael and his mother has deteriorated in recent years, especially since he started dating Maria, who, at 26, was almost eight years younger than Rafael. When Maria became pregnant with the couple's first child, it certainly didn't help. But sitting with his family, Rafael is convinced life's conflicts are behind him.
Child Protective Services
Then they hear a knock on the door. Wale Babalola, an investigator with Child Protective Services, stands outside. He has some things he wants to talk about.
When Maria checked in at Bayshore on May 7 for stomach pains, a urine sample came back positive for marijuana and cocaine. A hospital social worker had contacted CPS, which dispatched Babalola.
During the investigation, someone told Babalola that Maria used drugs at least twice a week, including the night before going into labor. Babalola had another urine test result from July 17, four days before Maria gave birth. Positive again for cocaine and marijuana.
Rafael's head spins. He goes into a separate room with Babalola. Rafael tells the investigator that he has never witnessed Maria taking drugs. He never thought she was stoned or high or whatever he wanted to call it.
"I wouldn't put my baby in harm's way like that," Maria says.
Rafael wants the children for himself. Nobody is accusing him of doing anything wrong, he argues. Babalola tells him that won't work. Not as long as he's living with Maria.
An emergency custody hearing is scheduled for July 24, the day after Maria checks out of the hospital. The judge rules that there is enough evidence to extend the investigation and orders Maria to give a hair follicle sample for a more accurate drug test.
Maria never brings her newborn home. Instead, the baby goes to Rafael's mother and stepfather's home, where the couple's first son remains. They can't afford it, but Maria and Rafael persuade an attorney to take the case.
"I'll do whatever it takes to get my babies back," Maria says.
Maria and Rafael have now entered the CPS system. A threat to children was presented, investigated and a decision made. Maria's case isn't hopeless. Her rights to the children were not immediately terminated, and if she and Rafael can prove capable of being good parents in the months ahead, they might get their children back.
But Maria and Rafael don't know they're about to enter the system at the worst possible time. During a two-year, statewide reform, the system has stacked the deck against itself. Caseworkers are overworked and quitting in droves. CPS is taking on more cases than it can handle, with children in state custody staying nights on cots and in cribs at a CPS office in Houston. In July, Maria and Rafael prepare to do anything to get back the kids, but the system that guards their fate is spinning wildly out of control.
Bad things happened for Child Protective Services in 2004. A string of child deaths revealed a system incapable of caring for the children it was supposed to protect.
On Christmas Day 2003, the body of four-year-old Jovonie Ochoa was taken to a San Antonio hospital. The boy was dead. He weighed 16 pounds and was covered in bruises.
About two months before the boy died, Jovonie's mother left him with his grandparents, who then duct-taped and tied the boy to his bed, beat him and left him to starve. Jovonie died covered in bed sores, his brain bleeding from the beatings.
In the months that followed Jovonie's death, investigators discovered that three complaints were filed to CPS against Jovonie's mother in 2002. A CPS employee had attempted to contact the mother but couldn't find her, and Jovonie's case was closed.
Then, in April 2004, again in San Antonio, CPS reunited two-year-old Diamond Alexander-Washington with her mother. About eight weeks later, the little girl peed in her pants. The mother beat Diamond with a vacuum cleaner hose until she was dead.
During those final eight weeks, Diamond's mother went to jail for two weeks and police were called to her apartment twice, all unknown to Diamond's caseworker. Shortly before Diamond's death, her CPS caseworker left for vacation. When the cases were handed over to coworkers, Diamond was ignored.
Politicians responded to the amount of press given to these deaths. A judge in San Antonio's juvenile court urged Governor Rick Perry to do something. Lawmakers promised reform.
To understand the problems that faced the agency, legislators asked how the system works.
First, a complaint is filed to the agency, which is routed through the state office in Austin. If someone decides the call warrants further attention, the case is given to a CPS investigator.
The investigator must complete the case within 30 days. If the investigator closes the case, he can still refer the child to other programs funded by Harris County Children's Protective Services such as "Pal," which gets foster children ready for independent adult life.
The investigator can also determine the state needs to take custody. That's what happened to Maria Martinez, and even though her children were placed with Rafael's mother and stepfather, the state technically has custody. Finding a relative for the child is the preferred option, but if there's no relative, the child goes to a foster family or a foster facility. Wherever the child goes after the investigation is complete, the state assigns a CPS caseworker until the child is back with his or her family, is adopted or turns 18 and graduates from high school.
After lawmakers looked at the structure of the system, they decided to increase the pay of investigators and to hire more of them. The goal was to lower investigators' caseloads. The agency also planned to gradually privatize the duties of the caseworkers and the foster system itself by doing away with state-run facilities.
In September, the Department of Family and Protective Services, under which Child Protective Services operates, issued its fourth report on the progress of the 2005 reform, and state officials painted a pretty picture of "tremendous improvement."
Agency officials cited a reduction of 1,000 children in foster care between March and September. This reduction is attributed to lower investigator caseloads resulting in an improved investigative force. According to the top officials at the agency, the reform is passing through CPS like a cool breeze.
But former and current CPS investigators and caseworkers, along with state advocacy groups, say the 2005 plan may have made problems worse. Employee turnover has actually risen since 2005. About 34 percent of CPS investigators and caseworkers quit during their first year, and that number is about 10 percent higher in Harris County. Children in Texas still die at a rate that almost doubles the national average. Harris County is tops, with almost four deaths per 100,000 children. The number of Harris County children in foster care has dropped by about 100 since last year, but has actually risen by almost 1,000 since 2005.
"There are definitely faults by the legislature," says Jodi Smith, a public policy director for the child advocacy group Texans Care for Children. "They're very reactive, very short-term."
Smith says her group advised lawmakers in 2005. The idea that was championed by the legislature — lowering caseloads for investigators — should have been done years earlier, Smith says. But privatizing parts of the system was an idea that child advocacy groups strongly opposed.
"There really is a wide range in the quality of the [private] care," Smith says. "With children in the state's care, we think the state should have the authority to make decisions on the children's behalf."
The privatization idea has gone horribly awry. A pilot program started in the San Antonio area was unable to secure bids from foster care providers. This year, the legislature voted to kill the plan.
Furthermore, the 2005 measures created a backlash among CPS caseworkers. After the agency beefed up the investigator position — better pay, more positions, lower caseloads — many employees simply left the caseworker side to become investigators. This created a larger strain on the caseworkers that stayed. They were paid less and doing more work. And until this year, the agency had plans to cut caseworkers for the looming privatization.
Then, in March, the state entered a foster placement emergency. The state had failed to renew contracts with foster care agencies, and several group homes shut down. CPS officials alerted caseworkers in Houston that they would have to start working weekend shifts at the agency's Chimney Rock office to care for foster children who had no place to go.
That was the breaking point for many of the overworked employees, according to former caseworker Lee Welborn, who left the agency in July.
"We felt like we shouldn't give up our weekends because they couldn't get a contract signed," Welborn says. "Some people who I never thought would leave are leaving."
Before working as a caseworker, Welborn was a middle school teacher, where, among other things, he taught journal writing. Welborn read some dark, sordid writing from his students, things he considered abuse. He wanted to protect these kids, not just teach them. He left for CPS.
"I went there hoping I could stay. I did love it," Welborn says. "There are times I feel guilty for leaving, but when you have 72 cases, you feel like you can't really help a kid."
Ursula Christian had worked as a CPS caseworker for a year and a half when she heard the weekend order. Already, Christian says, she was handling 75 to 80 cases. Christian was told she'd have to add three weekend shifts a month. Sometimes that meant working an overnight shift at Chimney Rock, then returning to her regular office at 8 a.m. It became too much.
"Here we are an agency supposed to be protecting children, you know, what's in their best interest," Christian says. "But is it in my best interest to work a 14- or 15-hour shift and ignore my own children?"
During Welborn's tenure at CPS, he had trouble sleeping. He often felt nauseated and suffered from ulcers. Gray whiskers sprouted from his charcoal beard. He tried to stay despite the weekend order, but then he received e-mails from his bosses that said the standards of work needed to rise. Welborn felt insulted.
"The system was in so much crisis this summer, it could not make the right decisions," he says.
This summer, CPS investigated Stephanie and Giselle Garibay. The women lived with their seven young children at Bissonnet Gardens, an apartment complex deep in southwest Houston. The children would often wander around the complex alone, wearing little more than diapers, according to Ofelia Cruz, the manager at Bissonnet Gardens. On September 12, CPS investigated a complaint that there was no food in the apartment for the children. There wasn't.
"They don't take care of the kids. It was like, where is the mother at," Cruz says.
About a week later, Giselle was arrested for child neglect. Three of her children had strayed from the apartment, and Giselle left to look for them. When officers arrived at the apartment looking for Giselle's brother, who was wanted on an auto theft charge, they saw an infant lying face down on the floor. When police told Giselle they would call CPS, she said an investigator had already been to the apartment and done nothing.
Three days later, Rosalio Banuelos-Manrique, a 19-year-old male friend of Stephanie, showed up at the apartment. He tucked a loaded pistol behind a bed. Stephanie's three-year-old son wandered into the bedroom, found the pistol and accidentally shot himself in the face.
Maria and Rafael were discovering that their CPS case was full of holes. Maria took the court-ordered hair follicle drug test and waited, mulling over the allegations against her. Positive for cocaine and marijuana on May 7 and July 17. She tried to remember if the hospital had even taken urine samples during those visits.
She dug up her hospital records for those dates and found the nurse's notes:
07/17 14:30: pt changed into gown and given instruction to obtain clean catch urine... pt states she can not give a urine sample at this time...
On the last page of the hospital records from July 17, under the section labeled "Procedures," it shows that no urinalysis was done. Maria thought the hospital probably mixed up the test results from May. Maria and her baby tested negative on the birth date, July 21, and Maria thought she had a pretty good case.
At the next court hearing, Maria and Rafael learned that Maria passed her hair follicle test. Maria's attorney, Ralph Alvarez, argued that the original allegations should be dropped. But the judge reset the hearing for ten days later, to see if investigators could determine anything new.
They did. As it turns out, Maria had a child before meeting Rafael. Four years earlier, she was homeless in Houston, bouncing between friends' sofas and her sister's spare bed. Maria became pregnant for the first time. Several months after that son was born, Maria traveled to Texarkana to work on a construction crew. She desperately needed the money, and it would only be temporary. She left her newborn with a friend.
When Maria arrived back in Houston, the friend told her that someone from Child Protective Services had taken Maria's baby. The CPS report from that investigation maintains that Maria's son was taken in with a lice infestation. The baby's head was bleeding from lice bites and scratching. When Maria met Rafael nearly two years later in Seguin, after both had fled the city and Hurricane Rita, she didn't know the fate of her first son.
Things had gotten better for Maria. Rafael was a godsend, and she loved him immensely. Rafael loved her back. After some time in Seguin, they returned to Houston and Rafael found a steady job at HydroChem Industrial Services in La Porte. Eventually, the couple moved to a modest home in a trailer court not far from his work. Maria liked staying home cooking and cleaning and caring for the couple's son while her boyfriend spent his days at work.
Now Maria had lost her kids again. The judge granted temporary custody of the couple's two sons to Rafael's mother and stepfather. Maria and Rafael were ordered to meet with a caseworker and their investigator to develop a parenting plan — counseling, classes, drug tests — which would be the key to getting back their children.
At the meeting, the investigator didn't show. Wale Babalola had left the agency to pursue a nursing career. Rafael and Maria were granted visitation twice a month, for one hour, at a CPS location in Houston.
Texas caseworkers handle anywhere between 40 and 80 cases at a time. Investigators' caseloads have dropped since 2005, but remain at 30 to 40 per month.
The Child Welfare League of America suggests that caseworkers and investigators should carry between 12 and 17 cases a month. The national average is about 24.
Critics of CPS say the root of problems within the agency is high employee turnover, which is caused by the enormous caseloads.
"That's a fact of life," says Houston attorney Brian Fischer, one of around 65 lawyers in Texas to be board-certified in juvenile law.
Fischer recently represented a white couple who were trying to get custody of an Asian baby they had fostered since CPS took the child from its parents. The baby's mother was mentally handicapped, and the father signed away his rights to the child.
Fischer's clients hoped to eventually adopt the baby, but 15 months into the case, the child's aunt and uncle stepped forward wanting custody. Leaders in Houston's Asian community criticized CPS for taking a child from its family and culture. The case went to jury trial, a rarity in CPS cases. It was a messy situation, but the jury sided with Fischer's clients. During the 18-month case, the child had four different caseworkers.
The average length a child stays in foster care in Texas is about 21 months. If the child isn't adopted or returned to the family before that time, the average stay jumps to almost five years, meaning the child most likely turns 18 and leaves.
The agency doesn't keep records on how many caseworkers a child has while in foster care, but Estella Olguin, a CPS spokeswoman in Harris County, says it will most likely be more than one.
According to a report from the nonprofit Texas Association for the Protection of Children, a child with one constant caseworker has a 75 percent chance of placement in a permanent home within a year. Switching caseworkers once almost cuts that chance in half, and multiple changes drop the chance to almost zero.
Kathy Reinhard and her husband live in Spring, and started keeping CPS foster children about three years ago. They tried to have their own kids 20 years ago, but were unsuccessful. They have also adopted two children.
Currently, one of their foster children is John, a two-year-old with some serious medical problems. The first year and a half the Reinhards kept John, they never heard from the child's caseworker, and CPS never went to their house despite a federal law that requires monthly visits. Kathy says they had no luck reaching the caseworker by phone or e-mail.
"That's more like the experience we've had with CPS," Kathy says. "It makes it difficult on us to get things done."
Working as a CPS investigator is a stressful job, says Javier Bernal, who has been with the agency for about five years. The main cause of stress, he says, is the amount of work. Bernal says that his monthly caseload is supposed to be 15, but he usually gets 20 new cases each month. Add that to the backlog of work he's trying to finish, and his actual number of cases is about 40.
"No, it's not manageable. It's very hard," Bernal says.
Since Bernal is one of the few Spanish-speaking investigators working in Harris County, he's often called on to translate for other caseworkers.
"That's when you want to pull your hair and think, 'Oh my gawd.' It's like, oh my gawd, I have to do this," Bernal says.
Each investigation he works should be complete in 30 days, but considering his caseload, that's not realistic. Cases can be extended to 60 days, but they often linger past that deadline. Plus, Bernal spends about half his time doing administrative work such as writing reports and appearing in court.
"We just don't have time," Bernal says. "It becomes a routine, where you already know what you're going to do."
Bernal moved to Texas from Mexico about nine years ago to work as an accountant. Then he started doing some modeling. Then he started teaching teenagers how to model. He liked working with the kids, so when a friend suggested CPS, it seemed like a good idea.
Bernal wasn't prepared for the emotional drain of the job. One of his toughest cases involved removing children from their parents on Christmas Eve. Another was the investigation of a teen who was killed by his father three days after Bernal had been to the house.
"You do feel bad. But whenever you feel like you did everything you could, you just have to move on," Bernal says. "Sometimes it's out of our hands."
Ursula Christian, the CPS caseworker who thought about quitting after receiving orders to spend weekends at the CPS office on Chimney Rock, decided to stay after she transferred to an adoption preparation unit. The duties are similar, but now she has a caseload of about 40.
Still, some cases put on top of her pile are too much to bear, including that of 16-year-old Melissa Flores. Melissa's mother was a crack addict, her father in prison. She had wanted to find an adoptive family when she entered the CPS system nine years earlier, but as she got older, that dream died.
Shortly before Christian switched units, she visited Melissa at her group home. Then, on July 11, the girl called Christian and said she had run away. Melissa had just celebrated her 17th birthday and wanted Christian to know she was doing fine.
Three days later, Christian received another phone call. The girl was dead, found in an apartment courtyard in southwest Houston. She had been shot in the back of the head.
Christian had to visit the morgue and identify the girl, had to select a casket, had to choose how Melissa would wear her hair and pick out Melissa's dress for the burial. On the morning of the small service, Christian arrived early to place some plants and flowers around the girl's gravesite.
"There are so many things mandated by the state. So many things, so many due dates," Christian says. "You're doing all you can...to maintain your sanity just to eat lunch."
Maria and Rafael were also having a hard time staying sane. They felt CPS had determined their guilt without sufficient evidence. Maria wanted her attorney to fight harder to have the case dismissed because of the hair follicle test.
"I think it's unfair the way they have done me," Maria says. "They just took my kids because they think I'm some kind of drug addict."
Maria's attorney, Ralph Alvarez, told her that she needed to be patient and complete each step of the plan that CPS had outlined for her and Rafael. Maria needed to participate in a psychological evaluation, a substance abuse treatment program, individual counseling, couples counseling and parenting classes. Rafael was urged to attend a drug program, individual counseling, couples counseling and parenting classes.
Rafael took the agency's plan as an indictment of him as a father. "I feel like they're bullshitting me," Rafael says. "You're messing with someone's life." The family's caseworker told them it would take at least a year before they could think about getting the kids back.
Rafael's boss at HydroChem had understood him missing work for the first couple of court dates, but Rafael feared that the numerous parenting classes and counseling sessions in upcoming months would hurt his good standing with his boss. It all would certainly hurt his paycheck.
Maria and Rafael's caseworker and attorney told them to be careful. If they failed to comply with the CPS plan — miss a parenting class or counseling session or get in trouble with the law — the agency could use that as another reason to keep the kids.
The outcry for CPS reform came up again in the state legislature this year. Child advocacy groups urged lawmakers to reduce the amount of work for caseworkers to balance the one-sided approach of 2005.
Some money was earmarked, but only enough to lower the average caseload from about 48 to 43. Reformers squawked that legislators had bigger mouths than guts.
Madeline McClure, director of the Dallas-based nonprofit TexProtects, prepared a report for members of the committee charged with fixing CPS.
"No matter what other reforms are enacted," McClure wrote, "...all are wasted costs and worthless if we cannot retain our No. 1 asset: our workforce."
McClure suggests that salaries must rise to keep caseworkers and investigators. The average starting salary is $28,740. McClure says that many workers leave CPS for jobs in teaching, where they can make about $10,000 more a year and have a summer vacation.
"You probably need to pay them $100,000 a year to keep them there," McClure says, "but at least a salary that's comparable to a teacher. Probably even a small premium."
Texas should also require that investigators or caseworkers have a bachelor's degree in a human service or behavioral science field, McClure says. Texas is one of eight states without that requirement.
"You can't teach someone empathy in two hours as part of an afternoon training session," McClure says.
Lawmakers in Delaware started requiring the degree about ten years ago, during their reform of the state's CPS equivalent, the Delaware Children's Department.
In the late 1990s, children in Delaware died at a rate similar to children in Texas. Employee turnover within the Children's Department neared 50 percent. The caseloads were enormous.
A string of high-profile child deaths led Delaware lawmakers to push reform. They dumped money in the system, allotting enough funds to cap caseloads at 18. The results have been astonishing, says Joseph Smack, a spokesman for the Children's Department.
The cap on investigative caseloads was recently lowered to 11, and Smack expects future funding to drop caseworker caseloads to 12. The Children's Department currently operates with a turnover rate of about 7 percent.
Comparing Texas to Delaware is tough, McClure says, because of the enormous size difference in the states' child welfare systems. Texas has a child population of over six million; Delaware's is about 200,000. Last year, CPS responded to nearly 100,000 reports of abuse; Delaware's Children's Department responded to about 5,800.
But according to Richard Wexler, executive director of the National Coalition for Child Protection Reform, size shouldn't hinder lawmakers from fixing the system.
"Not if you have the will to do it and look at what is proven to work elsewhere," Wexler says. "There are some very big places that do better than Texas."
Wexler says that Illinois has become somewhat of a model state in recent years by shifting its focus away from child removal and increasing its programs that keep families out of the system.
Those programs deal with poverty, the biggest problem in child welfare, according to Wexler. And, he says, the main fallacy among child protection agencies is confusing poverty with neglect.
Counseling and parenting classes do nothing to fix that problem, Wexler says, and more money should be spent on programs, such as rent subsidies, that allow parents to focus on being parents.
In Alabama, which Wexler cites as another improving state, caseworkers have money to use on things not usually associated with child abuse. If a mother can't get to work because her car won't start, the caseworker can pay for repairs. Or a caseworker can pay for daycare while a father attends a drug treatment.
But in Texas, only $1 from every $100 the agency spends goes toward programs designed to keep families out of CPS.
"They need to reverse course," Wexler says. "They're going in precisely the wrong direction."
Maria and Rafael have faced hard times before. After returning to Houston from Seguin, the couple slept in Rafael's car when they couldn't find a friend or relative to stay with. When Maria got pregnant, Rafael knew he had to get his life straight, and he did.
But since CPS got involved, life has unraveled. Maria and Rafael are working on their parenting plan but are becoming disillusioned with the system.
"I don't ask the government for anything. I pay my bills, I pay my taxes," Rafael says. "It's weird the way they handle these CPS cases. It's like you lose your kids if you don't have any money."
Now Rafael can rarely sleep, and his doctor has prescribed Lexapro, an antianxiety and antidepression pill. Rafael doesn't like the way the pills make him feel, but they help him relax.
At HydroChem, Rafael's bosses have cut back on his hours, and the bills keep stacking up. All Rafael can think about are his sons in some strange home. Once, he tried to stop taking his pills.
"I started to lose my mind," Rafael says. "I'm pretty much bonded to the pills now."
On the night of October 9, Rafael couldn't sleep. He lay in bed, thinking about his kids and everything else. It had been a week since he last saw his children, and that was for only an hour. Maria had switched on the lights in the couple's bedroom. Rafael asked her to turn them off. She said no.
Rafael sprang out of bed, and he and Maria yelled at each other across the room. The fight moved from the bedroom to the living room. He swung open the front door and pushed Maria in the back. She tumbled down the three wooden steps leading out of their trailer. Rafael slammed the door shut.
Maria had injured her arm, but she didn't know how badly. She staggered over to her neighbor's trailer and they called the police. Rafael spent the night in jail.
"He's not an abusive man," Maria says. "I think he's just pissed off at everyone in the world, because of the kids. Things have just gotten out of hand."
A week later, Maria and Rafael attend visitation with their children at the Human Services building on Scott Street, the one behind the HEB grocery store. It's the type of office where people are tired of waiting, tired of standing in line. Women in black uniforms with pistols on their hip guard the lobby in case anyone gets out of hand.
After about an hour, Maria, Rafael, their caseworker and the two children emerge from behind a door marked Hall 1. The children are handed back to Rafael's mother and stepfather. Rafael appears on the verge of tears. Maria stares at another place.
"I miss them a lot," Maria says. "Just missing my baby grow, I'm missing a lot, and that hurts."
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Their CPS caseworker disappears down Hall 1, and Rafael's mother and stepfather leave the office with the kids. Rafael and Maria sit down in two black metal chairs, not yet ready to leave.
They're not sure what will happen with CPS. Their caseworker knows about Rafael's arrest, but the couple is uncertain how it will affect their case. Maria thinks the charges can be dropped. They have another custody hearing in January, but Rafael says he doubts anything good can happen by then.
All they can do is wait. They say they'll hold on. But Maria and Rafael have little faith in the agency that has taken over the lives of their children and their own.