On November 5, 2019 – Eight years after a class action lawsuit was filed against the Texas foster care system and four years since U.S. District Judge Janis Jack of Corpus Christi first ruled treatment of children in the Texas foster care system unconstitutional – the state of Texas continues its battle in court.
On Tuesday in a Dallas courtroom, Judge Jack ordered the Texas Department of Family and Protective Services (DFPS) pay a $50,000 fine per day for ignoring orders set out in a July 2019 5th Circuit Court ruling related to overnight supervision for kids in foster care group homes. The state agency has until Friday, November 8 to do the two following things:
- Notify children’s caregivers if the children were sexual violence victims or aggressors (the state said they are working on it but it would likely take until mid-December).
- Guarantee that foster children living in group settings have 24 hour awake supervision.
That fine will double to $100,000 later this month if the stipulations are still not met. Texas agencies have already spent nearly $10 million on the lawsuit. The bulk of the expenses were for the time spent on the case by state staff and hired lawyers.
TexProtects is grateful to Judge Jack for her ongoing commitment and diligence to ensure Texas foster children are protected from further trauma and harm. We understand the burden of Judge Jack’s orders is a heavy load to carry by any one agency or set of leaders. Despite the many reforms that have been implemented over the last few legislative sessions, there is still so much work to be done. It is challenging, costly, and time consuming but we have got to get it right and owe these previous children nothing less than 100% compliance.
For those who have been following this lawsuit over the years, TexProtects has provided a summarized timeline of the key actions and where Texas stands today. Visit the Children’s Rights website to look at the legal documents.
Children’s Rights Lawsuit Overview
In 2011, children in long-term foster care, otherwise known as Permanent Managing Conservatorship (PMC), brought a class action lawsuit against the state of Texas alleging the state had violated their constitutional rights by subjecting them to an unreasonable risk of harm while in the state’s care. The children were represented by Children’s Rights, a New York-based advocacy group.
Children’s Rights asked Judge Jack to order the state to take steps such as hiring more qualified caseworkers and setting lower caseload limits. The lawsuit also called for the state to quit placing children with no special needs in more restrictive residential treatment centers and for better staffing ratios in group foster homes.
In 2015, Judge Jack found Texas liable for violating the rights of thousands children across the state. She ruled that Texas has violated foster children’s constitutional rights to be free from an unreasonable risk of harm, saying that children “often age out of care more damaged than when they entered.”
The state opposed the lawsuit and appealed – and has continued to do so every step along the way often citing the expense and mandates as unnecessary which have been considered by the 5th Circuit Court of Appeals.
In January 2018, Judge Jack ordered a permanent injunction against Texas, with over 100 detailed steps the state must take to remedy the constitutional violations set in 2015. Judge Jack ordered two court-appointed “special masters” to monitor the system for three years.
In October 2018, a panel of three judges on the Fifth Circuit Court of Appeals, upheld that Texas had, indeed, violated the constitutional rights of children in foster care.
The Fifth Circuit found that:
- Texas’ repeated failure to reduce caseloads and address caseworker turnover meant that children waited unreasonably long periods of time to see their caseworkers or children lacked a stable relationship with a consistent caseworker;
- Poor record keeping exacerbated the situation as new caseworkers had difficulty accessing complete information about their cases; and
- Unchecked systemic deficiencies in the monitoring and oversight of licensed caregivers or foster care facilities put too many children at unreasonable risk of harm.
However, the judges wrote that parts of Judge Jack’s orders were in many ways unworkable. The court struck down a number of specific reforms laid out by Judge Jack including:
- A requirement that workers who check up on long-term foster kids have caseloads of no more than 17 children;
- A requirement that supervisors at the Texas Department of Family and Protective Services oversee no more than seven caseworkers;
- A requirement that foster kids’ case files include a photograph that is current as of one year;
- A requirement that long-term foster kids receive a copy of their birth certificate and Social Security card when they turn 16; and
- A requirement that the child welfare agency make sure that long-term foster kids can get into driver’s education classes once a child is old enough to get a learner’s permit.
In November 2018, Judge Jack issued a new injunction against Texas requiring DFPS to strengthen monitoring and oversight of licensed foster care reduce caseloads and improve its data system.
In June 2019, the Fifth Circuit Court of Appeals overturned some of Judge Jack’s mandated fixes. These included an overhaul to the way the state tracks and records information about foster care children. The court did uphold other requirements, including that no children be placed in licensed foster homes with more than six children without 24-hour supervision of an adult.
In summary, the 5th Circuit ruled as follows:
- The state must require 24-hour supervision of licensed group homes;
- The state can continue to utilize I See You Workers and face-to-face meetings do not have to be with primary caseworker;
- The court must have oversight of workload studies for CPS caseworkers;
- The state need not comply with the requirement for a new integrated computer system;
- The court must be allowed access to DFPS’s data management system and all DFPS records, but court staff are required to maintain confidentiality; and
- The requirement to give court all available raw data relevant to all previous third-party studies is removed.
In October 2019, plaintiffs in the case asked Judge Jack to hold the state in contempt of court, citing in the motion the state gave “false statements” about overnight supervision of foster children living in group settings. The motion also cited a deadline for creating a study on case workloads had passed without being met.
Plaintiffs also sent a request on Oct. 11 for the state to pay $22.6 million that they have accrued in legal fees and costs since the case was filed in 2011.
Instead of paying the fees to the plaintiffs for these costs, $6 million of which was accrued by two Texas firms working pro bono on the case, the two firms and fellow plaintiffs’ lawyers want Judge Jack to order Texas to spend the money on programs to help current and former foster kids, which would need to be approved by the court-appointed special masters.