Broken system: Federal judge's 2015 ruling reveals disturbing details of Texas foster care system

As state lawmakers mull solutions, children continue to languish in state care

SAN ANTONIO – For decades the state's foster care system has been described as "broken."

State lawmakers have tried several times to fix the system, often with disappointing results.

Once again the state Legislature is trying to find solutions, but this time it has a federal judge closely watching what it does.

In December 2015, federal Judge Janis Graham Jack ruled the state's foster care system is unconstitutional.

In her scathing opinion, she wrote: "Texas's foster care system is broken, and it has been that way for decades. It is broken for all stakeholders, including Department of Family and Protective Services (DFPS) employees who are tasked with impossible workloads. Most importantly, though, it is broken for Texas's PMC children, who almost uniformly leave State custody more damaged than when they entered."

Jack wrote: "The reality is that DFPS has ignored 20 years of reports, outlining problems and recommending solutions. DFPS has also ignored professional standards. All the while, Texas's PMC children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm. Children enter the foster care system at the basic service level and age out at the intense level, damaged, institutionalized, and unable to succeed as adults."

Read more about the Defender's investigation into the epidemic of child abuse in Bexar County and the broken system in place to address it.

The lawsuit shared the experiences of 17 foster children who were named in the lawsuit. 

The state calls those experiences atypical does not believe so and is appealing the judge's ruling.

Over the past several months the KSAT Defenders have talked to current and former foster care youth and reviewed hundreds of pages of state inspection reports of foster care providers. Some seem to mirror the experiences of the children in the lawsuit.

Kicharne Earls is a former foster care youth who aged out of the system when she turned 18. She entered foster care at age 8 when Child Protective Services removed her from her mother due to neglect.

Earls recalled being summoned to the principal's office at her elementary school with her younger sister on Oct. 9, 2002. A woman they didn't know was waiting for them in the office.

"She's like, 'Your mom said she can't pick you up today, so we're going to be taking you home,'" Earls said.

But the woman, a CPS caseworker, didn't take the girls home. She took them to a local emergency shelter, the first of 30 placements Kicharne would experience on her 10-year journey through the Texas foster care system.

"A decade of my life being in foster care, being forced to take medication and being institutionalized for eight years of the 10 years I was in foster care," Earls said.

Kicharne and her sister were separated shortly after leaving the shelter. The girls would have little contact with each other as Kicharne's placements took her all over the state.

"Houston, Victoria, Fort Worth, Galveston, San Antonio," Earls said, recalling the cities where her placements were located. "I guess you could say from Corpus Christi all the way up to Fort Worth."

Kicharne had just two placements in foster homes in her home city of San Antonio before she was sent to live at a series of facilities that specialize in treating psychiatric problems because of her behavior problems.

Kicharne said she reacted to the trauma of losing her family by acting out, often resorting to violence.

She left the system with a juvenile record for assaulting a staff member at one facility and an adult record for assaulting a younger foster sister she lived with in a foster home.

"I didn't care who you was, it was just about me surviving, you going to eat or get ate," Earls said. "I had to survive; that's my way of surviving in the system is to fight. I had to."

Kicharne said she was physically and mentally abused at some of the facilities and was frequently placed in painful physical restraints by staff members.

"With the restraints I've been choked out to the point where I passed out. Sometimes you don't really have to do nothing; it could be the smallest thing. If you don't want to listen. If you don't want to move. You don't always really have to be doing something physically to get in a restraint," Earls said. "Sometimes the staff, they can have one of their moods and if you're not doing what they want you to do, hey, there it goes."

She said that over the years she was fed a cocktail of powerful drugs, including Abilify, Prozac, Lexapro, Depakote, lithium, Seroquel, and trazodone.

She said she remembers being placed on the medications the first week she was in care, but no one told her why she had to take the medicine. She does remember how the pills made her feel.

"Lithium was the one that I remember that affected me the most. I was 12 years old when I was first introduced to it, and they had me on a high dosage," Earls said. "When I would get mad or excited or just basically get excited I would get real nervous and shaky, like I couldn't control my shakiness, and I remember my CPS lawyer came down to see me and this was never happening to me before, and she saw how the medication was having me real shaky and she had them lower down the dosage. It made me feel real sleepy; it used to make my mouth real dry. I used to be super thirsty, and I just didn't like it."

Kicharne said fighting between residents was the norm at most of her placements and sometimes was even encouraged by staff members.

"In some of these placements the staff would have us where we're fighting against another child if we're into it or sometimes it's a child and a staff," Earls said.

In 2006, when she was 12, Kicharne was placed at Daystar Residential Inc., a residential treatment center in the Houston area.

In 2008 staffers at Daystar were accused of provoking fights between residents.

The facility was closed by the state in 2011 following the death of a 16-year-old boy who died of asphyxiation after a staff member applied a physical restraint.

Kicharne said being placed in facilities like Daystar made her feel like she was a prisoner in a jail.

"But the difference is this is not our fault. Prisoners have their reasons for being in jail and being locked up, this is just for being born, I guess, and coming through the foster care system," Earls said.

Kicharne said her experiences being placed in lockdown institutions resulted in several nonfatal suicide attempts, including one where she says a staff member grabbed a knife and threatened to kill her with it.

"This one placement that I was at one of the staff members; I guess they got tired of me constantly trying to kill myself. She pulled a butcher knife out and took me to the back room and pulled the knife and pushed me onto the bed and put it to my throat and she said, 'You really want to die?' She's like, 'You want to die now?' and I said, 'No. I changed my mind.' And there was another staff member sitting there and never said anything. She was just like this was normal," Earls said.

While disturbing, Kicharne's experiences are somewhat mild compared to what was contained in Jack's ruling.

Plaintiffs in the case claimed they were sexually assaulted and raped in residential treatment centers by staff members. Their allegations were not properly investigated or were simply dismissed due to a lack of evidence.

Others alleged they were sexually assaulted in foster homes by other foster children.

One 8-year-old boy was abused three times by two teenage boys in the first month he was placed in a home. The agency in charge of the home was not aware any of the children had a history of sexually acting out or abusing other children. The information wasn't shared with the agency.

The Defenders reviewed the past two years of compliance history reports kept by the state and available online, which show the number and types of deficiencies cited by state inspectors at foster care providers.

According to those records, 51 foster care providers in Bexar county racked up 619 total deficiencies ranging from high risk to low risk; 225 were classified as high risk.

The narratives explaining the deficiencies detailed situations where a lack of proper supervision led to children harming themselves, kids engaging in consensual and forced sexual activity with each other, improper discipline techniques used by caregivers leading to injuries, improper distribution of medication and inadequate medical care.

Despite the serious nature of some of the incidents, not a single foster care provider in Bexar County has had its permit revoked or suspended in the last two years.

It comes down to a need for beds for children entering the system.

"That's exactly right, but in the community-based care model, you can identify those providers who are doing a fantastic job and help them build capacity and help them build in more beds, if that's what's needed, and those that are just marginal, not doing as well as they should, then they shouldn't be in business." said Annette Rodriguez, CEO for the Children's Shelter.

The Children's Shelter has been caring for children who have been abused, neglected and abandoned since 1901.

It runs an emergency shelter, a residential treatment center and a child-placing agency with 70 foster homes providing services to more than 4,000 children and families each year.

See something, say something: Resources for reporting abuse and getting help

Rodriguez has been advocating for two bills before the Legislature that would create a community-based care system taking control of the state's foster care system and putting it in the hands of local providers in each community. It's considered by some to be a possible solution to some of the problems with the foster care system.

"Right now it's a cookie-cutter program where one size fits all across the state," Rodriguez said. "What that lead provider would do is they would create a network of providers and create a model of care for children in their community; a model of care that would best meet the needs of their community. So now you have one provider in a region or one provider in a catchment area who has to maintain a relationship with the state, but it's the provider in that community who now is working with its community to help develop what services are best needed for that community."

While the Children's Shelter did have its share of deficiencies cited by the state in the past two years, Rodriguez said it does its best to keep the kids in its care safe.

"When we look at our processes we make sure that we are crossing our t's and dotting our i's. Having said that, things still happen, and what we do is we believe in integrity and transparency and we follow the law of the land," Rodriguez said. "If we believe that there is an issue or a problem we will report that. No one is immune to the law of the land and what's required. We do the right thing, and all we can do as administrators and those of us overseeing organizations is to provide confidence to our communities that we will make sure that children are cared for and they are receiving the best quality of care, that they are safe in their environment when they are there with us, and if we find out otherwise then we will take swift action because it will just not be tolerated."

Rodriguez said she has sympathy for the children named in the lawsuit, but she does not believe their experiences paint an accurate picture of the system.

"That was their reality and that's what they went through, and I'm very sorry that they had to go through that," Rodriguez said. "I've been in this work for over 19 years, and I can say that it is a small piece of the entire system. I believe there is more good being done in our child welfare system than not."

In fact, there are many foster care providers all across the state providing quality care for children in need of homes.
St. Jude's Ranch for Children is one of them. It provides homes for about 100 kids in foster care, many of them sibling groups that can be difficult to keep intact.

They live in cottages set up like homes and have plenty of opportunities to just be kids.

"I will tell you facilities like ours at SJRC and others, they really love the kids and we try to provide that home environment for them. They get to do all the things that my kids get to do, that your kids get to do, it's just a little unconventional," said Tara Roussett, CEO of SJRC. "We're focusing on the trauma that the kids have suffered every day, and again as I mentioned, it's not conventional, certainly not ideal, but sometimes this is the only saving grace that people have."

Since leaving care in 2012, Kicharne Earls has earned her GED certificate and is now going to college. She says she hasn't required any medication since aging out.

She's also reconnected with her mom and sister but admits re-establishing the relationships has been difficult.
Now 23 and living on her own, she looks back at her life in foster care and feels like her childhood was stolen. Seeing kids playing carefree in a park reminds her of what she's lost.

"It took a piece of my mind as well as it took a piece of my life, and the things I had endured, while going through the system, I don't wish on my own enemy," Earls said. "Until you experienced it, you would never fully understand."


About the Author:

Tim Gerber is an investigative reporter and anchor on the KSAT Defenders team.