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Texas Foster Care in crisis after a decade in litigation and 5 years under federal oversight

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Court Monitors Report
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Several housing units leased by DFPS were directly adjacent to blighted and what experts called a dangerous abandoned housing development.

Texas is still at times traumatizing kids in its long-term care. The state system is in crisis after 11 years of litigation and five years of court-ordered federal oversight of more than 9,000 children in its Permanent Managing Conservatorship, often interchangeably described as foster care.

At a federal hearing in the virtual courtroom of Judge Janice Jack Tuesday, multiple reports were dissected (as were some of the bureaucrats in charge of child welfare).

Texas struggles to find placements for kids. It continues to overburden case workers in violation of court orders, uses unlicensed and dangerous out-of-state facilities as a matter of course and has been criticized for investigating and monitoring facilities.

“You are the parents of these kids,” said Judge Jack incredulously on numerous occasions attacking government workers for everything from vaccination rates to investigations of crimes alleged by kids.

Penetrating interrogatories from the judge brought a round robin of staff from the Department of Family and Protective Services as well as the Health and Human Services Commission.

Along with those questions, threats of contempt, sarcasm and evident frustration also came.

“Sorry, I act so angry. It's actually because I am angry,” said Jack three hours into the day-long hearing.

2021 was marked with a wave of closures of these facilities. Some couldn’t bear the brunt of COVID-19 costs, some were bad actors closed by attentive regulators.

“But you can't make up that loss capacity overnight,” said Kate Murphy, senior policy associate for Texans Care for Children focused on child welfare. “Texas's lost over 1,000 treatment beds, right? So you can't just make something out of nothing.”

The result was some months with more than 400 children in the state’s custody without placements, sleeping in unlicensed facilities like hotels or state-leased houses staffed by CPS workers. In most states, one expert said at Tuesday’s hearing, that number is around 10 kids without placements.

“I know Texas is a big state,” said Judith Meltzer, a member of the expert panel giving recommendations to the court, “but the magnitude of the problem here, I think, gave us pause.”

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Court Monitors Report
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The number court monitors found of children without placement (CWOP) in the state's Permanent Managing Conservatorship (PMC). More children in other parts of the foster care system were also found without placements.

The state moved towards unlicensed placements to reduce the numbers sleeping in CPS offices. The practice has been a problem in the past and is now against the law. It isn’t clear that these solutions were better. One 15-year-old youth was suspected of having a sexual relationship with a hotel clerk where she was staying. Some were tased and pepper sprayed by hotel security and law enforcement.

The state passed up more than $40 million in federal funding through the Families First Act when it failed to move quicker on instituting new guidelines for residential placement centers.

“The state has complained over the years about how expensive it is to have safe foster care. That's no excuse at all. But here's a perfect example of $44 million that could be keeping these children safe that the state is squandering,” Paul Yetter, lead attorney in the litigation against the state foster system, said to TPR.

Monitors found several problems with state-leased homes staffed by “overworked” DFPS staff, who are required to spend time overseeing youth. They found several issues with youth receiving medication, being enrolled in schools, and how often kids ran away.

Serious Incident reports show a spike in issues exponentially higher than other times. According to the monitor report, 61% of youth without placements were involved in a serious incident between July and September of last year. The leading cause of an SIR being reported was a mental health episode. Maybe more troubling, said the expert, was that this was becoming a standard response.

“It is a shameful crisis for the state to see this. And it is not new,” said Yetter during the hearing.

As the need for more beds ramped up, Texas also turned to other states’ facilities for help. Michigan vendors housed dozens of Texas children in 2021 and monitors found troubling issues with them as well.

One facility in rural Michigan was cited for not having a thermostat and losing heat for a 48-hour period when the temperature was 28 degrees outside. A youth ripped the door of the hinges and it was not replaced by staff.

“Staff did not call maintenance to fix either the thermostat or the door, failed to provide the youth with extra clothing or blankets to stay warm, and did not move the youth to another unit,” read the report.

In addition, the Michigan facilities had numerous safety hazards according to monitors and rooms that looked more like “juvenile cells.” The little furniture they did have was often substandard.

Youth reported a chaotic environment with fights, staff bullying and the improper use of restraints by staff. Ultimately court-appointed monitors made multiple reports to the state of Michigan regarding neglect and abuse.

Judge Jack had sharp words for the third-party vendors who placed kids in Michigan facilities.

“It’s really quite stunning,” she said of the findings. “You all cannot avoid the remedies that this court has ordered by stuffing these children into these awful facilities out of state.”

“We have no intent to put kids in bad facilities,” said Wayne Carson, head of ACH Child and Family Services.

“Well you did,” Jack interjected.

Commissioner Jamie Masters expressed surprise at the findings saying this was the first time she had heard them.

“It looks like I need to go to Michigan,” she said at one point.

But still… progress

And yet, despite the clear sense of frustration by the judge, youth advocates and lawyers representing kids in Texas’ care said the system has improved in a number of ways. The legislature pushed more money towards foster care in the last session. And after years of court battles, state leaders finally submitted and began working with the court to fix the system.

“There's no question that the attitude of the state agencies is different today,” said Yetter.

Investigations by state officials into allegations made by children in care have risen dramatically. The quality of those investigations has improved as well as informing kids of how to report them.

One area that will finally be addressed after seven years is the fact that Texas doesn’t know where its kids physically are located on a given day.

The systems and databases don't speak to each other. The records collection and storage are so convoluted that they have at times given the wrong location, and in one tragic incident discussed Tuesday in court — the system said a child who had killed themself was still at a residential facility.

TPR reached out to the Department of Family and Protective Services for additional context and explanation of the problem. The agency declined.

"How do you even explain that?" said Yetter. "It is something they should have put in place years ago, and they still haven't put it in."

When asked about it Tuesday, DFPS commissioner Jaime Masters said their IT system would be able to do this by June 2022.

More importantly, the state now has a roadmap to improve.

The roadmap — also filed with the court on Monday — is a report from a panel of three court-appointed experts. It recommended — among other things — creating an interagency team to eliminate unlicensed placements, expand family and kin placement options, expanding capacity and services for youth especially in mental health.

“We have some clear next steps that our state leaders can focus on to make sure that kids in foster care are living with foster families or with relatives instead of sleeping in an institution or an office or a dangerous placement,” said Murphy.

Commissioners from both DFPS and HHSC committed to a number of the items as well as creating a plan within 90 days.

“But the proof is going to be in the pudding in 90 days, we need to see some action,” said Yetter.

After all, he said, we wouldn’t know about the ongoing failures of the state without the ongoing work of court monitors: Texas Appleseed’s Deb Fowler and Covenant House International’s Kevin Ryan.

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Paul Flahive can be reached at Paul@tpr.org and on Twitter at @paulflahive