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Texas newly ‘defiant’ in federal foster care litigation

Midjourney AI

Texas has challenged the costs of a federal court-appointed monitoring program that has regularly exposed dangers to youth in its care. This week's challenge — paired with nonpayment of one group of monitors and objections state lawyers raised in April to the scope of the court’s authority — signaled a new “defiant” posture in the 12-year-old saga of the state’s foster care litigation.

The state was found by federal district and appellate courts to have violated the civil rights of youth in its care by failing to protect them from abuse and neglect. Less than 10,000 youth in the state’s care are subject to the lawsuit, under what’s called permanent managing conservatorship. The monitors — Deborah Fowler of Texas Appleseed and Kevin Ryan of Public Catalyst — have tracked the system since 2019 but regularly find additional issues.

The state is estimated to spend $46 million on monitoring between when it began at the end of 2019 through this year. The cost is regularly the focus of Republican lawmaker complaints.

“These monitors’ fees should be going for the children. And in my book [the monitors] are serving the children much better than you have,” said Judge Janis Jack, who has overseen the lawsuit for 12 years.

According to state lawyers representing the two bodies that make up the child welfare system — the Department of Family & Protective Services (DFPS) and the Health and Human Services Commission (HHSC) — invoices provided by court monitors were overly vague and the costs were increasing.

“The remedial orders themselves have not changed since they have been implemented, and yet the monitors invoices continue to increase over time,” said Karl Neudorfer, assistant attorney general who represents DFPS in the case.

Bills for April amounted to $1.7 million, up nearly 20% from the previous April. Neudorfer did assure the court that the monitors would be paid.

You are not monitoring the monitors. I am monitoring the monitors. Don’t do this again
Judge Janice Jack

Monitors explained that the rise in costs was due to in-person site visits that started after the pandemic began to subside, the number of new systemic problems that were found, and the ongoing and widespread failures to improve identified problems — especially investigations.

Abuse and neglect allegations have been ruled out at times, despite being witnessed by monitor staff.

“We had to expand the number of investigations we were reviewing because the problems were so significant, including Deborah and I being misquoted in investigations,” Ryan said.

Jack saw the objections and nonpayment as a larger effort to undermine the credibility of the monitoring, calling the objections ‘frivolous’ — noting that identical objections had been ruled on in the past. She read previous rulings into the record.

“You are not monitoring the monitors. I am monitoring the monitors. Don’t do this again,” Jack said.

Palpable indignation at the hearings, beginning over several hours, diminished to a weary recitation of instances where the state had failed youth, that those monitor-documented failures brought new information to the state — showing the value of the years of work and revelations the program had provided.

She noted child fatalities, abuse instances, and group home failures. Reports have detailed ongoing issues with children without placements or CWOP who reside in unregulated placements that put hundreds of kids in danger.

An image from the third Court Monitors' Report on children without placements. The image depicts an abandoned housing development adjacent to unlicensed placements the state kept youth in.
Court Monitors
An image from the third Court Monitors' Report on children without placements. The image depicts an abandoned housing development adjacent to unlicensed placements the state kept youth in.

“This is a remarkably wasteful exercise that we're going through. And that's the irony of this, is that the state’s inquiries about the bills has actually caused taxpayers to pay more,” said Paul Yetter, one of the lawyers representing youth in care.

He said the state had never challenged any facts from monitors’ reports and had in the past complimented the reports.

“It seems to us that it was a reaction to yet another revelation with regard to the most recent monitors report that they want to somehow burden the monitor staff and gum up the works,” Yetter said.

In April, court monitors raised troubling questions about the number of youth in the state’s care who are on multiple psychotropic drugs, and how those drugs are administered, prescribed and reviewed. Visiting 14 group homes, monitors found numerous errors in medication logs and administration. The state — raising no factual criticisms of the report — objected to the investigation itself, saying it was beyond what the court was allowed to cover.

Jack disabused them of that position in the April hearing and in one Monday, citing the court record as to what gives her that power. The crux of her argument dealt with the safety of children, and she, at times, read the state’s own guidelines of what constituted medical abuse and neglect into the record.

In the final moments of the hearing, Yetter dropped another potential bombshell revelation around how the state reviews youth’s psychotropic drug prescriptions of children in its stewardship.

The Texas Department of Family and Protective Services said it does not comment on the foster litigation.

He said that his team found 93% of all youth referred for a Psychotropic Medication Utilization Review (PMUR) are screened out, meaning a director at the company Texas contracts for the job does not send them to a physician. The implication was the company acted as a rubber stamp for psychotropic prescriptions — potentially endangering children. The issue was initially raised last month in a report that saw 47% of youth in care on four or more psychotropic drugs but having no record of a PMUR.

“Yet again, the state seems to be ‘screening out’ reports of possible serious abuse,” Yetter said in a statement. “Sweeping thousands of reports under the rug is dangerous and wrong.”

Lawyers for the Texas youth requested PMURs for all eligible children in Texas foster care. They also planned to ask the judge to assess contempt fines for the medication issue, for the state continuing to house foster youth in unlicensed placements, and for failing to adequately inform children of their rights.

If the state continues in its more pugilistic stance, appealing contempt fines, the case could be on the long path toward another round at the 5th Circuit Court of Appeals.

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Paul Flahive can be reached at Paul@tpr.org