Judge Whacks Texas for Fighting Foster Care Reform

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CORPUS CHRISTI, Texas (CN) — A federal judge ordered Texas to keep working with two masters she appointed to help reform its foster care system, which sends children to hotels and state offices at night due to a housing shortage, though the state insists it doesn’t need any help from the courts.

Texas officials objected in November to all 56 recommendations the two special masters made to improve care the Texas Department of Family and Protective Services provides to roughly 12,000 children in the state’s long-term foster care or “permanent managing conservatorship.” State officials called the suggestions “vague” and unnecessary in a Nov. 21 brief to the court.

Attorney General Ken Paxton said in the brief that Texas already has policies to reform the foster care system for its wards.

After 12 to 18 months, if Texas has taken a child from an abusive or neglectful family and has not returned the child to the family or found a new permanent home, the child becomes a ward of the state.

But U.S. District Judge Janis Graham Jack said in a Jan. 9 interim order that Texas cannot rely on “policies not practiced” to escape oversight from her and the masters.

“Policies not practiced are insufficient to address the constitutional deficiencies found in the Court’s 2015 Order. Even if the state has policies in place which could remedy the constitutional deficiencies, plaintiffs’ claims are not mooted and the court is not deprived of its remedial power,” she wrote in the interim order, citing her own bombshell 260-page order of December 2015 that excoriated Texas for running an understaffed foster care system where “rape, abuse, psychotropic medication, and instability are the norm” in violation of foster children’s constitutional rights to due process.

Texas officials have known for decades that their foster care system is broken, but the problems persist, Jack wrote in the interim order.

“For over 20 years all studies conducted or commissioned by DFPS or by other state actors  recommended many of the same reforms based on the same deficiencies found by this court, yet the problems still exist,” Jack wrote.

Though she was unimpressed by Texas’ legal arguments, Jack praised Gov. Greg Abbott and DFPS Commissioner Hank Whitman for speaking publicly about the need for a major overhaul of the foster care system.

“State investigators should be making timely contact with a child who is the subject of an allegation of abuse or neglect without fail. Anything less is completely unacceptable,” Abbott wrote in an Oct. 12 letter to Whitman, also signed by Lt. Gov. Dan Patrick and House Speaker Joe Strauss.

Whitman then acknowledged in a letter to the governor that his agency is struggling to find homes for children.

“The result of this capacity issue is that the agency must enter into expensive child-specific contracts with providers that are not the best setting for children’s needs, or have children spend extended time sleeping in CPS offices, hotels, or emergency shelters,” Whitman wrote in his Oct. 20 letter.

Whitman took over DFPS on May 1, 2016 after Abbott appointed him to overhaul the foster care system. Whitman, a former Marine, was a Texas Ranger for 10 years before being promoted to chief of the Texas Rangers in 2011.

A Texas Senate committee approved Whitman’s request for funding in early December and gave his agency $150 million to hire 829 new caseworkers and give $12,000 raises to current ones.

The special masters recommended that Texas cap the number of foster kids each caseworker handles at 17. Asked if the 829 new hires would bring its workers’ caseloads down to 17 kids, department spokesman Patrick Crimmins said, “Caseloads are always in flux, and dependent on many factors, including employee turnover.”

Texas claims in court filings that caseloads are not the right measure of caseworkers’ burdens.

“There is no proof or finding that measuring by caseloads instead of workloads achieves results more in line with constitutional standards,” Texas said.

DFPS itself is not even asking for the staffing increase recommended by the masters.

The agency’s most recent funding request to the Legislature, for fiscal years 2018 and 2019, asked only for enough to reduce the caseload for agency workers to 25.47 children apiece.

But Jack is adamant that 14 to 17 is the “appropriate and safe” caseload.

She ordered Texas to give her a plan to reduce the workers’ caseloads within six months.

She also put Texas and the masters on the clock to create a database that contains foster kids’ medical, school and court records, caseworker notes and housing placement evaluations, and to give caseworkers, ad litem attorneys and court-appointed special advocates access to the database.

“DFPS objects to the creation of this databank on the grounds that it violates attorney-client privilege and other confidentiality laws. However, as noted by the special masters, other states have successfully addressed these very issues with central databanks providing separate access codes to each group of people,” the order states.

Jack certified a general class and three subclasses in August 2013, who alleged violations of due process rights to adequate care and a safe, secure, and suitable placement while in state custody.

She called out Texas in her December 2015 order for not tracking child-on-child sexual abuse and for placing children in homes without 24-hour supervision. She issued an injunction ordering Texas to document child-on-child abuse and requiring “24-hour awake supervision” for foster homes with more than six children.

She circled back to those concerns this week in her interim order, advising the masters and Texas to come up with a plan to identify available “single-child homes” for children who have been sexually abused. She also ordered the department to prominently notate in kids’ case files if they are “sexually aggressive” or “sexually abused,” and ensure that caseworkers know how to search the files for those terms.

Crimmins, the DFPS spokesman, said in an email that due to the pending litigation he couldn’t speculate on the difficulty of finding enough single-child homes for abused children.

But there’s no doubt that Jack’s interim order, which calls for elimination of all foster group homes and urges the state to set performance targets “with a view to expanding placements in foster homes,” will put pressure on DFPS to recruit more foster parents.

For their part, the special masters recommended that Texas make sure all foster homes have landlines and DFPS hotline numbers so children can report abuse.

Children age out of the Texas foster system when they turn 18. A woman who runs a Houston-area nonprofit that helps troubled youths testified for the plaintiffs that many aged-out teens lack basic living skills: They don’t even know how to answer a phone, cook a meal or fill out a job application.

In light of that testimony, the masters advised Texas to provide driver’s education classes for wards, birth certificates, stable housing arrangements, and email accounts so they can get copies of their records.

The masters are Kevin Ryan, the former commissioner of New Jersey’s child welfare agency, and Duke University law professor Francis McGovern.