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Texas' attempt to remove federal judge from overseeing foster care called 'cynical'

Turnover at the Texas Department of Family and Protective services has soared. Employees cite low pay and heavy caseloads as some of the reasons staffers are leaving.
Lauren Witte
Turnover at the Texas Department of Family and Protective services has soared. Employees cite low pay and heavy caseloads as some of the reasons staffers are leaving.

Texas escalated its fight with the federal judge overseeing parts of its foster care system by asking an appeals court to remove her from the case.

In a filing on Tuesday, the state’s attorneys took the unusual step of arguing that U.S. District Judge Janis Jack demonstrated hostility and was not impartial.

Jack has overseen the federal case for 13 years. State officials under two governors have been the target of the judge's barbs, criticisms, and threats of contempt.

Attorneys for the state said the judge went too far when she found Health and Human Services Commissioner Cecile Young in contempt of court — fining her and the state $100,000 a day due to failing to comply with court orders around investigating and protecting intellectually disabled foster children from abuse and neglect.

The conservative 5th Circuit Court of Appeals was poised to agree with Texas on its appeal, which argued that the fines went beyond the scope of a civil trial and should have been handled differently in a criminal hearing.

Attorneys for the state recounted a series of times they say Jack defied the 5th Circuit in her rulings and in her changes to court orders.

“For years the state defendants have attempted to serve the children in their care while complying in good faith with the district court’s sweeping injunction and remedial orders,” the document read. “But regrettably, reassignment has become necessary to ensure a ‘fair and impartial forum.’”

Lawyers for the state’s foster care system tried to fend off contempt complaints stemming from alleged failures to observe several court orders from federal court monitors and plaintiffs in a case that stretches back 12 years.

The state said it spent more than $150 million to improve foster care and $60 million to federal court monitors.

The recusal request went beyond what most observers expected.

"Two things: Disappointment and a little bit of shock," said Paul Yetter, the longstanding attorney on the litigation representing foster children.

Few advocates would argue Texas is providing a first-rate foster care system.

“This sounds like it is part of a game plan by the state of texas ultimately to walk away from its broken system and not keep Texas children safe," said Yetter. Calling the move cynical.

Many challenge the idea the state has operated in “good faith” with Jack’s court, noting this is the third time Texas has been held in contempt for its lack of progress reforming foster care.

In 2019, the state was fined for not having round-the-clock supervision in many of its group care facilities. The judge fined them $50,000 a day over the issue and said the state had misled the court in its 2014 trial when it said most had supervision.

It was in this time period that Jack said in court she had to rely on these court monitors because the state had not been forthright.

Since then, federal court monitors have published detailed reports that show progress as well as accounts of enduring problems at the Department of Family and Protective Services and HHSC.

"The thing the state doesn't want to talk about is all of the basis of all of the judges orders and comments and directions are documented instances children being abused, neglected of dying in the care of the state. Those facts are undisputed," said Yetter.

Reports detail agencies many failings, but also progress and recommendations for future.

Jack’s office declined TPR's request for comment.

The request to remove a judge is an unusual step in a federal civil case.

“It’s relatively rare to have a recusal request like that,” said Tom Leatherbury, a private practice civil attorney who has argued in front of these courts. “The burden of proof is fairly high.”

Leatherbury, who also advises TPR, could think of only one case where it was requested during his more than 30 years as an attorney.

One reason for that could be the fear of retaliation. If the attorney loses the recusal request case, they may have to face that judge again at a later time in their court.

For example, Jack is currently considering additional contempt fines for both child welfare agencies over other failures discussed in a contempt hearing in December. Plaintiffs in the case have asked for a full federal takeover with a conservator.

These were some of the issues to be discussed at a hearing later this month, but that hearing was delayed to September.

Whether or not Jack is present at the hearing is now up to the 5th Circuit Court of Appeals.

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Paul Flahive can be reached at Paul@tpr.org