Child welfare officials move to reduce Texas judge’s oversight of embattled foster system

The Texas Department of Family and Protective Services offices in Austin on Nov. 14, 2019. (Eddie Gaspar/The Texas Tribune, Eddie Gaspar/The Texas Tribune)

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State welfare officials want a federal judge to lift several court-imposed orders designed to improve the Texas foster care system, insisting they have complied with most of the demands at a cost of $100 million in tax dollars to reform the way it cares for abused and neglected children.

The request, filed early last week by the Texas Department of Family and Protective Services, marks the first time the state has made any major attempt to get out from under the injunction and orders issued in the 13-year-old case.

“Texas has made significant progress in the all-hands-on-deck effort to improve foster care,” Patrick Crimmins, spokesperson for the Texas Department of Family and Protective Services said in a statement emailed to The Texas Tribune. “More than $100 million has been spent. Caseworkers are better trained, their caseloads are lower, and investigators respond more quickly to protect foster children and youth.”

U.S. District Judge Janis Jack, who has overseen the lawsuit filed by attorneys on behalf of some of the children in state care since it was filed, has threatened to continue monitoring DFPS’ foster care system for at least three more years to make sure the state doesn’t backslide on a series of orders dealing with caseloads, training and the reporting of abuse and neglect by the children in its care.

DFPS’ petition comes at a time when Jack is considering whether the agency should be held in contempt of court for the third time since the lawsuit was filed.

The state insists the court has an obligation to release the agency from scrutiny in the areas where it has achieved total or near-total compliance with its obligations — in this case mainly referring to the way the state handles abuse and neglect of children within the system, according to the request filed in Jack’s Corpus Christi district on Feb. 13.

The plaintiffs in the lawsuit at the heart of Jack's criticisms said Wednesday that they’re opposed to letting the state off the hook and will argue that the supervision continue.

DFPS and the Texas Health and Human Services Commission — which oversees part of the system and is also involved in the lawsuit but not the DFPS request — still have a mountain of work to do before the children in state care are safe again, the plaintiffs said.

“The state’s motion ignores the harsh realities for these children,” said Paul Yetter, the children’s attorney. “In fact, the motion barely mentions child safety. Nothing will improve until the state gets serious about fixing its broken system.”

The state’s latest argument comes as the case is expected to be scheduled for another hearing on Friday. At that hearing, the judge will try to determine whether the state purposely hid from the court the details of two serious incidents involving children in their care.

One September incident, according to a report filed Tuesday by court-assigned monitors, involved a 13-year-old girl who was repeatedly beaten up by other children while living in a rental house serving as a temporary group home in Temple. She often slept in the dining room of the rental home near the caseworker on duty because she was afraid to sleep in her room at night, the report said.

At one point she was beaten so badly she was treated at a hospital. Her mental health deteriorated so rapidly as a result of the situation that she had a mental breakdown, bit and kicked a caseworker, and was arrested, the report said. The caseworker suffered a debilitating injury and had to be hospitalized, the report said.

In a different case earlier this month, a foster care child ran away from a temporary placement in Waco and then returned, only to report that she was raped while she was on the run.

Monitors reported that both incidents had details recorded in caseworker notes, but that neither were included in documents that Jack had ordered the state hand over late last year. The monitors said in the report that the only way they knew about them was from tips from unnamed “stakeholders” that prompted them to seek out the omitted reports.

Crimmins declined to comment, citing the expected court proceedings on the issue.

Throughout the course of the lawsuit, Jack has found Texas was violating the constitutional rights of foster children by exposing them to an “unreasonable risk of harm.”

Jack made her first ruling condemning the state foster care system in 2015, and three years later, the conservative 5th U.S. Circuit Court of Appeals agreed. In 2018, Jack handed down an injunction along with orders to address problems.

Since then, she’s ordered several fixes over the years and has continuously criticized the state for not complying. She found the state in contempt – in 2019 and 2020 – for failing to follow her orders to fix deficiencies.

At the center of the battle are the roughly 9,000 children in permanent state custody, removed from their homes due to circumstances that can include abuse at home, complex health needs that parents are unable to manage without help, or the loss of family caregivers.

The state relies on long-term care facilities, hotels, churches, apartments and rental homes to house them. Children in these placements can be as young as 10 but are often teens with complex trauma and behavioral needs.

Prior court hearings have revealed that some children have lived in unlicensed facilities and were supervised by a rotation of already overworked DFPS caseworkers, instead of trained medical professionals. The result was unsafe conditions rife with violence, abuse and neglect.

In its most recent filings, the state says the agency has taken “extraordinary measures” to fix issues identified by the court, noting that those have been confirmed both by the court in recent court proceedings and in previous updates by monitors Jack assigned to track the state’s progress.

The state points out in their recent filing that the judge’s 2018 orders state that either party in the lawsuit can request that the court supervision be ended in areas where they can prove that they’ve met their obligations and that monitoring is no longer necessary. The order also states that the supervision can remain in effect up to three years after the state proves it has complied.

DFPS lawyers argue that the agency has reached full compliance with two orders that require that caseworkers take professional development training and that supervisors be more mindful of recommended caseload guidelines when distributing more cases to employees. The state agency notes that it has also reached 90% compliance or higher in 10 other court orders designed to improve the speed and quality of child abuse and neglect investigations.

Higher priority child abuse and neglect victims are now required to be interviewed in person within 72 hours of an initial report and those investigations must be completed within 60 days. Documentation for those completed investigations must be filed and the parties notified in a timely manner. And caseworkers are now notified of any abuse or neglect accusation that doesn’t trigger an investigation.

“These improvements are clearly documented and have resulted in the state’s compliance with all remedial orders,” Crimmins said. “We believe now is the right time to narrow the scope of this litigation by moving for relief on a subset of remedial orders the state feels strongly it has fully satisfied.”

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