Sue Me, Baby, One More Time

By all appearances, the legal action was over last October in the Fort Bend County case filed by Children's Protective Services against Gary Gates and his wife, Melissa. Lawyers for CPS asked to have the case dismissed through a nonsuit. That would effectively end the agency's months-long investigation and resulting accusations that the couple inflicted physical and emotional abuse on their brood of 13 biological and adopted kids.

The withdrawal of CPS from the court arena would have meant clear victory for the parents. Gary had maintained all along that the only abuse at issue was the power grab that CPS routinely inflicted upon the families of Fort Bend County. He believed that was exemplified on February 11, when CPS workers arrived at the Gates house without so much as a court order and trundled the children into a paddy wagon and off to foster care for the weekend (see "A Father's Retribution," by Brad Tyer, October 5).

Gary and Melissa Gates already had their kids back -- a judge had ordered them returned home the following Monday -- but Gary Gates was determined that the conflict should not end there. He is a wealthy man; he could afford the legal firepower to protect his own. But what about other families -- predominantly poor families, without the means to endure, much less launch, a protracted legal battle -- bombarded with similar charges by CPS? What could these families do when faced with the kitchen-sink barrage of accusations, the lack of effective oversight and accountability, and the rampant disregard of even its own procedural mandates that Gary Gates had become convinced were the ingrained hallmarks of CPS?

So, instead of taking his win and walking away from the battlefield, Gates and his lawyers fired back in late November with two more court filings.

One was an amended motion for sanctions -- penalties -- against CPS and its bureaucratic parent, the Texas Department of Protective and Regulatory Services, for filing the suit against the parents. The motion, relatively common in court cases, alleged misconduct and bad faith by CPS.

The second filing, at first glance, is more unlikely: Gates and his lawyers urged state District Judge Thomas Stansbury to reinstate CPS's case against him and his wife. Why? Gates wants the opportunity to conduct discovery, to gather evidence against CPS administrators and employees. And for that discovery, he needs a live case.

"They have never said the reason they took the kids," says Gates. "I've sent letters in the past asking those questions, and they've done everything they can not to answer that question directly." Gates mentioned his son Marcus as an example of the agency removing all his children, even those who weren't the subject of any supposed complaints. "What was the personal knowledge of facts that [CPS] had that said Marcus Gates was in immediate danger?"

Gates also wants the model and serial number of every government-issued tape recorder in the possession of CPS agents. He says that legally the agency is supposed to tape-record every interview with a child, but he doesn't believe that's happening. "There's a reason they shred their notes, and there's a reason they're not videotaping and audiotaping all interviews: because they don't want it to be known just how incompetent their questioning is."

Gates attorney Tom Sanders says CPS fought against disclosing any evidence while the case was active, and he thinks the agency's nonsuit was filed to avoid having to submit to discovery. "We've gone down there and we've set depositions, and then they come in and say, "You can't have them.' And so far we haven't gotten them," Sanders says. "But we want discovery to try and prove what we think, [which] is that the lawsuit didn't have a lot of merit when it was filed."

CPS's case grew out of an incident in which Gary Gates, an admittedly strict disciplinarian, sent son Travis to school with a plastic bag filled with Fig Newton wrappers stapled to his shirt, as punishment for stealing food at home. The agency's motion for nonsuit, however, concluded that its concerns had been resolved.

CPS spokesperson Judy Hay denies Gates's charge that the nonsuit is an agency strategy to avoid discovery. "He has everything," Hay says. "He just doesn't accept what he's got. Like he said in the article, he wants to make it so bad that we never do it again. That's what this is about."

Last week Stansbury did rule to allow Gates to proceed with depositions, opening the door for CPS to refile its suit. It sets the stage for a judgment for sanctions against CPS. That could result in Gates recouping legal fees and costs from the agency. But Gates has always said that it's not so much the money, which he's estimated at more than $150,000 and counting, that's important. It's holding CPS accountable for its future actions.

Sanders agrees: "Practically speaking, if [CPS] had to [pay Gates's fees], hopefully it'd slow them down in the future."

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