Appeals court denies homeschool family's request for CPS to return 4-year-old son

A homeschool family is appealing to the Texas Supreme Court after an appeals court denied the family’s emergency request to have their 4-year-old son returned after he was removed by the state based on concerns of medical child abuse.

The Fifth Court of Appeals in Dallas denied the Pardo family's petition last week calling for the Texas Department of Family and Protective Services to return their son, Drake, who was removed from their home on June 20 after concerns were expressed by a doctor at Dallas Children’s Medical Center.

The family’s lawyers at the Texas Home School Coalition contend that the DFPS did not meet the legal requirements for the removal and also failed to inform the family of an arranged meeting with a child abuse pediatrician on June 10 that was part of the basis for removal. 

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Specifically, the family asked the court of appeals to vacate temporary orders from a trial court issued in July that gave CPS custody of the child. 

“To be entitled to mandamus relief, relators must show that the trial court has clearly abused its discretion and that relators have no adequate appellate remedy,” appellate court Justice Lana Myers wrote in her ruling. “After reviewing the petition and mandamus record, we conclude relators have not shown they are entitled to the relief requested.”

The Texas Home School Coalition says it will appeal the decision to the state’s high court, adding that the trial court invoked a “guilty-until-proven-innocent paradigm” that equates “failure to cooperate” with what the coalition says were “unfounded and intrusive investigations” with an “emergency.” 

The coalition argues that the trial court’s order forces the parents to “prove there is no emergency.”

"The Fifth Court of Appeals disregarded the Pardos' request for intervention without giving any explanation for their decision,” Jeremy Newman, director of public policy for the Texas Home School Coalition, told The Christian Post in a statement. 

“This demonstrates the problem that we have seen for years: the lower courts simply do not give enough respect to the constitutional right of Texas families to raise their children. However, this outcome from the Fifth Court of Appeals was expected and the family is now seeking emergency assistance from the Texas Supreme Court, where a much better result is anticipated."

The Texan reports that Drake Pardo has been placed in a foster home and CPS is supposed to be conducting a home study to see if the child can be placed with a relative.

According to court documents obtained by local news outlet inForney.com, CPS sought Drake's removal based on concerns from the hospital that his mother, Ashley Pardo, displayed symptoms of a condition where an individual thinks that the person he or she is caring for has some sort of physical or mental illness. 

The mother was accused of “exaggerating and lying about [her son’s] symptoms and conditions” and “demanding an unnecessary surgical procedure to place a [gastrostomy tube].” Pardo is also accused of switching doctors when she doesn’t agree with their assessment. 

Newman previously told CP that the DFPS cited the family’s failure to attend a June 10 meeting with Dr. Suzanne Dakil as part of its reason for removing the child as well as an ensuing affidavit from Dakil. 

Dakil initially voiced concerns to CPS because she wanted the child to be evaluated to determine if the parents were actually seeking unneeded medical attention. 

Newman attended a court hearing that was held in the first week of July in which a DFPS caseworker testified that she never told the family of the June 10 meeting because of a negative interaction she had with the family’s lawyer, who refused to travel from Dallas to Houston to receive a copy of the allegations against the family. 

“When asked why she didn't tell them, her explanation was that the family's attorney has been too aggressive toward her and so she didn't follow up to inform them of that meeting,” Newman said. “But then they also cited the family's failure to attend that meeting as one of the two major things that created the need for emergency removal.”

The second reason for the removal was the affidavit from Dakil, who never met with the family in person but only heard concerns that the parents were seeking unnecessary medical procedures for their child. 

However, Newman said that Dakil testified during the early July hearing that she never requested for Pardo to be removed from the home. Newman also said that Dakil’s concern that the family was seeking a feeding tube for their son was “speculative” and that the family did not give any reason for the doctor to believe they were planning to do that. 

Newman said Dakil testified that she wanted Pardo to undergo a feeding study but the family declined that request because they could not afford the 12-week in-patient study. 

"According to Dr. Dakil's uncontested testimony at the hearing, the family has only switched doctors one time," Newman told CP in July. "They switched from one doctor inside Children's to another doctor inside the exact same office. The reason for this switch, which Dr. Dakil admitted she was not aware of the reason, is because the first doctor refused to visit Drake for several days while he was admitted to the hospital. The family fired him, switched to another doctor in the same office, and filed a formal complaint against the first doctor."

Newman also stressed that CPS did not exhaust all other options for intervening in the case before seeking the child's removal, something Newman said the agency is required to do. 

Earlier this month, state lawmakers and a coalition of organizations that include the Texas Pastors Council and Concerned Women for America Texas filed an amicus brief to the appellate court calling for Pardo’s return. 

“[Pardo] and his family have suffered because his parents chose to assert their rights to make decisions for their child,” the brief explains. “The hospital enlisted the assistance of CPS in retaliation for his parents’ audacity to complain about the inadequate treatment of their child and to assert their right to make medical decisions for their child. CPS punished them with removal for refusing to be intimidated into abandoning their right to legal counsel and ignoring his advice.”

The Texas Public Policy Foundation also filed a brief to the court in defense of the Pardo family. 

“[T]his case is littered with instances of DFPS choosing to disregard its legal obligations in its investigation of the Pardos and removal of [Drake] into state custody,” that brief argues. “Rather than ‘strictly construing’ the laws that the state of Texas has put in place to protect the fundamental rights of families in favor of the Pardos as required, the district court instead decided to rubber-stamp DFPS’s unconstitutional actions and grant the department custody of [Pardo].”