By Sneha Dey, The Texas Tribune
“How a 12-year-old federal lawsuit turned a judge into Texas’ foster care czar” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
When U.S. District Judge Janis Graham Jack declared in 2015 that Texas foster kids were leaving state care more damaged than when they entered, it forced the state to confront decades of missteps.
After a yearlong trial for the lawsuit, which was filed in 2011, the Corpus Christi judge found Texas was violating the constitutional rights of foster children by exposing them to an “unreasonable risk of harm.” Caseworkers were carrying more than double the standard for caseload limits, children were being placed far from their home counties, and the state was not enforcing residential facilities’ compliance with licensing standards.
“Texas’s foster care system is broken, and it has been that way for decades,” Jack wrote in a damning 260-page ruling that landed like a bomb. “All the while, Texas’s … children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.”
She put the foster care system under federal oversight and has spent more than seven years issuing order after order: Hire more caseworkers, stop placing children in unsafe settings, track child-on-child abuse. She appointed “special masters” — also called court monitors — to track the state’s compliance.
When it comes to foster care reform in Texas, the federal judge is holding most, if not all, of the cards. Her court hearings seeking progress updates on her orders have commanded political attention, pressuring the Department of Family and Protective Services and state lawmakers to fix the concerns Jack has raised. Initially, Texas’ top leaders resisted her demands. But after years of federal oversight, the state’s child welfare agency has started to implement the court-ordered reforms.
“When you look at how micromanaged a lot of this is, and how much time, energy and resources are spent, I feel like she is as much the commissioner of the agency as the commissioner is and has been for a while,” said state Rep. James Frank, R-Wichita Falls.
Texas has spent $41.3 million on the court monitors alone. That’s in addition to fees to cover staff member’s and attorney’s time, transcription services and travel.
Some lawmakers contend that Jack’s 2015 ruling and continued oversight are the primary drivers for what improvements have been made. Critics say the suit has sucked up financial resources that DFPS could have used to improve foster care.
In the years since the initial ruling, the foster children who were the lead plaintiffs in the case, representing 12,000 kids in the state’s long-term care at the time of filing, have reached their 20s. State and DFPS leadership has changed, too. Yet the litigation is ongoing — with the foster care system still littered with many of the same problems. With the state still so far out of compliance, it’s unclear what it will take for the suit to come to an end.
Jack, 76, has twice held the state in contempt of court for failing to make progress on her orders, and she threatened to hold the state in contempt of court again last month. At a 2020 court hearing, she said grocery chain H-E-B did a better job of tracking produce than Texas does tracking foster kids.
Much of her ire over the years has been focused on how DFPS has tried to handle a capacity crisis. There is a high number of children with severe mental health and behavioral needs, but not enough licensed facilities or foster families trained to properly care for them.
“I’m sure you have multiple excuses, but I guess I don’t want to hear them right now,” Jack said at a 2021 hearing, berating state officials about children sleeping in offices and motels.
When New York-based advocacy group Children’s Rights sued Texas in 2011, the state’s top leaders saw out-of-state actors overstepping their jurisdiction.
After Jack sided with Children’s Rights in 2015, Attorney General Ken Paxton immediately appealed the court-ordered reforms. The state could fix the foster care system without court oversight, Paxton argued. Gov. Greg Abbott also called the ruling “unfortunate” and “disappointing.”
“The court’s injunction raises serious federalism concerns because it attempts to wrest control of the Texas foster-care system from the State’s elected representatives, executive officers, and judges,” Paxton’s lawyers wrote in the appeal in 2016.
All the while, reports came out about the child welfare system inadvertently providing a supply of vulnerable kids to criminals who pushed them into a child sex-trafficking underworld. Outraged, the chair of the Texas House Democratic Caucus at the time wrote to Paxton in a letter to stop fighting the federal judge’s orders.
“If there was ever a call to action for state officials to get serious about reforming foster care, this was it,” Rep. Chris Turner, D-Grand Prairie, wrote in 2017.
The pushback against the judge’s orders ended with a ruling from the 5th U.S. Circuit Court of Appeals. A three-judge panel sided with Jack on the basic tenet that Texas foster kids were endangered but pulled back many of Jack’s broadest measures. Her ban on placing foster children in large group homes, for instance, went “well beyond what is necessary to achieve constitutional compliance,” they said.
The question of what Jack could require volleyed between the district and appellate courts for months, but in 2019, the 5th Circuit upheld some of her orders. That included a requirement that every home or facility that houses foster kids in a setting with six or more kids hire enough staff to stay supervise the children, awake, for 24 hours a day.
After 2019, the attorney general’s office stopped fighting. Abbott wrote to DFPS and the Health and Human Services Commission in 2020, telling them to obey court orders to avoid unnecessary fines. And in a stark shift of tone, Abbott eventually went on a Rio Grande Valley radio station and said Texas will do “exactly” what Jack has ordered. Neither the attorney general nor the governor responded to requests for comment for this story.
Dozens of states have faced similar child welfare class-action lawsuits, but Paul Yetter, the lead attorney in the suit, said Texas was the “most resistant state that we had seen.”
“That was completely unusual in child welfare reform. Most states want to see the system fixed and work collaboratively,” Yetter said. “There’s no question that Texas really vigorously opposed all efforts and performance through the courts up until a few years ago.”
Reform in court and at the Legislature
While the state’s appeals and resistance slowed major reforms, DFPS is beginning to show improvements more than seven years after Jack’s initial ruling, particularly with regard to caseworker training and caseloads.
“The lawsuit has helped, at least in the fact that it’s driven state officials to try to do more and recognize and admit to the problems that we have in the system,” said state Rep. Gene Wu, D-Houston. “It’s hard for people who run this system to ignore those complaints. They can’t refuse to acknowledge it because it’s being acknowledged by a federal court.”
DFPS and the Health and Human Services Commission are independent agencies. Abbott appoints commissioners for both entities. But state legislators also play a role in funding both agencies and writing laws about what they must do.
When Wu sat on the Texas House Human Services Committee, a legislative panel with oversight of DFPS, he said the committee invited the court monitors to testify. What it got in response was a curt note from Jack the next day: The monitors were prohibited from speaking with lawmakers.
Still, the committee tried to address the monitors’ concerns, including a recommendation that all children in the state’s long-term care have access to an attorney or Court Appointed Special Advocates volunteer. So during the 2017 legislative session, House Bill 7, co-authored by Wu, did just that, reforming the court process for handling CPS cases, including the appointments of attorneys.
In 2021, the Legislature passed sweeping reforms to the state’s foster care system, hoping to address issues raised in the federal lawsuit. Senate Bill 1896 prohibited children from sleeping overnight in offices and required the Health and Human Services Commission to develop a plan for increasing capacity of proper housing.
State Sen. Lois Kolkhorst, a Brenham Republican who authored 2021’s SB 1896, told the Tribune one of her top priorities is “to ensure the safety of every child under state care,” but she declined to comment on how the lawsuit shaped legislation.
Wu is a practicing attorney who has represented both children and parents in Child Protective Services cases. Although the lawsuit has increased accountability of DFPS, Wu says it’s hard to calculate whether the suit has made the system as a whole better.
“As a member of the Legislature, I want to say that we’ve done a lot, but realistically, I’m not sure. The bar was just so low where we were,” Wu said. “Even doing a lot didn’t raise the bar enough. And there’s still such a long way to go.”
“Six people with clipboards”
Jack does not speak to the media about the lawsuit and did not respond to requests for comment for this story. She was appointed a federal judge for the Southern District of Texas by President Bill Clinton in 1993. She is on “senior status,” a state of semi-retirement for federal judges.
This foster care case is Jack’s legacy. In 2016, a year after she first dropped her damning ruling, The Dallas Morning News named her Texan of the Year.
State Rep. Terry Meza, D-Irving, who sat on the House Human Services Committee for the 2019 and 2021 legislative sessions, said the costs the state took on when it appealed the lawsuit could have been spent on reforms.
“When I first came to the committee, the state agency was in too much of a defensive mode,” Meza said. “I think about how much better use that money could have been put to. Rather than trying to defend the lawsuit, look at the findings and try to say, ‘What can we do to do better?’”
One of the lawsuit’s biggest critics sees things differently.
Frank, the Republican lawmaker from Wichita Falls, is a powerhouse when it comes to foster care reform. He is a former foster parent, and he will chair the House Human Services Committee overseeing DFPS during the 2023 legislative session.
Frank agrees the monitors have identified bad actors in the network of foster care providers. But he also says the significant amount of state funds covering costs of the monitors could have gone directly to the welfare of children.
“We seem to be spending a lot more money on the people that are watching their providers than on the providers themselves,” Frank said. “It’s like you’ve got one person watching the kid and six people with clipboards around them telling them how they’re not doing it correctly. And we’re paying for all those six people with clipboards.”
To date, DFPS and the Health and Human Services Commission have paid a total of $41.3 million to the court monitors since they were appointed in 2019, according to DFPS spokesperson Patrick Crimmins. And the meter is still running.
The three defendants in the case — the Health and Human Services Commission, DFPS, and the governor — all have attorneys. DFPS also has seven full-time employees, non-attorneys with a combined annual salary of $559,544 in 2023, dedicated to working on the federal lawsuit. DFPS said they cannot quantify the cost of other staff contributing to addressing the lawsuit.
The Health and Human Services Commission and the attorney general’s office did not respond to questions about the lawsuits’ financial toll, though those state agencies have incurred independent costs, including travel and court transcription.
No exit strategy in sight
Children’s Rights, the advocacy group leading the charge against Texas, has filed similar lawsuits in more than a dozen other states. And according to a report from Casey Family Programs, a foundation aimed at reducing the need for foster care, the average lifespan of a class-action child welfare suit with a settlement agreement is about 15 years. The litigation also tends to be expensive, with the cost of legal fees, monitoring and consulting fees estimated to reach or surpass $15 million over the lifetime of a single case.
In 2020, DFPS and the Health and Human Services Commission requested $75 million from the state to help cover the costs of complying with Jack’s orders.
When the agency fixes a problem, it uncovers a new set of shortcomings, raising questions about whether the state has a pathway to be in complete compliance, said Wu, the Houston legislator and lawyer.
In June 2020, for instance, the monitors identified a fragmented system of managing state data that makes it difficult to track investigation histories about children and facilities. And in June 2022, the monitors found that a quarter of children whom DFPS identified as victims of sexual abuse were victimized or revictimized after entering foster care.
At last month’s hearing, Jack blasted the state for failing to make children aware of their rights and for continuing to have children in their care without placement.
Twelve years since the suit was filed, as the meter continues running, the state doesn’t appear to have an exit strategy. Attorney Marcia Lowry, the former executive director of the group that filed the case, says it’ll likely be years before the suit ends.
“The state is not close to exiting the lawsuit,” Lowry said. “This is a system that has functioned, and I don’t think functioned well, for a very, very long time. You can’t turn the system around in three or four years that is as big as this one is and is as dysfunctional as this has been.”
Disclosure: H-E-B has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/09/texas-foster-care-lawsuit/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.