A. Background

Domestic violence (referred to as “family violence” in Tex. Fam. Code § 71.004) is defined as a pattern of coercive control[130] which takes the form of behavior choices and strategies used purposefully and systematically by a person to gain or maintain power and domination over their intimate partner.[131] Domestic violence is present in every community and across all ages, socio-economic levels, sexual orientations, genders, races, religions, or nationalities and “can be made up of physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”[132] Different forms of control and abuse can occur simultaneously and can increase in severity over time. Physical aggression is not always a tactic that is utilized in domestic violence; however, physical aggression may or may not show physical evidence of harm.

Coercive control can be challenging to identify for the domestic violence victim/survivor parent (hereinafter referred to as survivor parent) experiencing it as well as for others, including law enforcement, child welfare professionals, judges, friends, and family. Domestic violence is often viewed as incident-based, rather than as a dynamic that shapes how families function and respond. Viewing domestic violence as a pattern and not as a singular incident or series of incidents is critical to responding supportively to the safety needs of the survivor parent and the children exposed to it.

Coercive control can include the domestic violence perpetrator (hereinafter referred to as perpetrator) taking away access to resources needed by the survivor parent and the children as well as removal of psychological or emotional support. In a child welfare case, coercive control can manifest as the perpetrator taking away access to money, food, childcare, transportation, health insurance, and/or critical documents as a threat or consequence for the survivor parent participating in the child welfare investigation process, signing a safety plan, or getting a protective order. This could also take the form of the perpetrator making threats about the children, employment, or basic needs. These actions by the perpetrator increase risk to the survivor parent and the children and can compromise the survivor parent's ability to protectively parent and in turn increase the negative impact that domestic violence has on the children. It is crucial to respond to domestic violence in a way that supports the protective capacities of the survivor parent and bolsters protective factors for the children, while simultaneously holding the perpetrator accountable for the impact that their behavior and parenting choices have on the family.

It is important to note that witnessing family violence, in and of itself, is not child abuse under Texas law. However, co-occurrence of domestic violence and child neglect or abuse is common. Domestic violence constitutes the single greatest precursor of child maltreatment fatalities.[133] In 2020, Texas DFPS' annual report on child fatality and near fatality[134] documented that out of the 251 child fatalities in Texas the following circumstances were present:

•   132 children (52.59%) had a documented history of domestic violence in their case file;

•   27.1% of the families who experienced a child fatality had active domestic violence present in their home environment; and

•   22.7 of the families which experienced a child fatality had both a history of domestic violence and active domestic violence present in their home environment.

•   Physical abuse was the cause of death for almost 60% of the 57 child fatalities where there was both a documented history and active domestic violence present in the home environment.

A common response by perpetrators is an unwillingness to participate in the child welfare process, including choosing not to engage in conversations, meetings, and services. This leaves the survivor parent accountable for meeting all safety concerns on their own, even when they may not be the cause of all safety concerns. It is important to note that a survivor parent's decision to leave an abusive relationship may leave them without the financial resources to care for the child and might result in a loss of employment, housing, and childcare. Instead, the survivor parent may stay in the relationship as a protective response, believing that the perpetrator will do more serious harm if the survivor parent tries to leave. Notably, women who leave their abusive partners have a 75% greater risk of being killed than those who stay.[135]

Exposure to domestic violence can have long-lasting negative effects on children's physical and emotional well-being. Children who are removed from their home as a result of domestic violence may also then experience the trauma of being separated from the survivor parent. Also, the separation of the children from the survivor parent creates more opportunity for the perpetrator to use the children as a tool to manipulate the survivor parent. These threats can add to other sources of pressure to stay in a domestic violence situation, such as cultural practices or norms, religious pressures, and the desires of the children to return to their home.