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Foster children's lawyers ask judge for federal takeover of Texas system

Joe Gratz | https://bit.ly/3wUgDDn

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Lawyers for foster children asked a federal court judge for the federal government to take over parts of Texas’ foster care system.

Plaintiffs' lawyers called the move a “drastic but necessary” step to protect Texas foster youth from state officials who continue to neglect them — citing language from the takeover of California’s prison health system.

“Now twelve years after this litigation began, it is beyond time enough for the State to fully protect the rights of PMC children. Only the enforcement steps of contempt and receiverships will ensure this constitutionally required protection,” the court filing read.

Judge Janis Jack has indicated a willingness to impose contempt for the noted deficiencies and has fined the state in the past, but this was the first time the possibility receivership was raised.

The move came just a few months after the state argued against a contempt finding and claimed that it substantially complied with the court's orders.

The request came in an amended motion again asking for contempt fines against the state for what they called its continued violations of court orders dealing with things like case loads, investigations into special needs facilities, as well as abuse and neglect cases investigations, and how the state enforces corrective actions for non-compliant facilities.

Texas has been under federal court monitors for four years. Texas has paid more than $46 million so far to those monitors and received a number of scathing reports filled with high-profile and embarrassing revelations about ongoing and “dangerous” situations for the money.

In a March report, court monitors said Texas continued to place youth in poorly supervised residential treatment centers. Victims of sex abuse were found in the same bedroom at residential placements as youth flagged for sexual aggression.

The state lawyers disputed the findings in court and said that psychotropic medications were outside the purview of the court. In a subsequent filing, state lawyers argued it had achieved much of what the court had hoped to change with the stated remedial orders.

Kids were being administered psychotropic drugs at times in contradiction of state policies — though the state has made progress in reducing the percentage in care who are taking the meds. The report as part of the federal lawsuit against the state’s foster care system said that Texas continues to place youth in poorly supervised residential treatment centers.

Another ongoing situation at the heart of the effort to remove Texas from administering the program are kids kept in unlicensed placements, often called CWOP.

When the state cracked down on bad actors in the foster care system — often those operating large congregate care residential placements — many shut down. The state then said it had no beds for those with high emotional and psychological needs, often those who have experienced extreme trauma.

Nearly all CWOP youth in 2021 required treatment for physical aggression and/or psychiatric hospitalization, said a court filing.

The Department of Family and Protective Services began warehousing kids in hotels and other unlicensed placements instead — the legislature barred them from housing them at Child Protective Service offices. The numbers rose to more than 400 per night in 2021.

What monitors observed of these non-placement placements was that they often relied on caseworkers to work overtime and rotate in at a pace that left youth with no ongoing support or follow up. Lawyers for these children reported no programming to socialize youth and no education programs set up for them. These shifts often went unreflected on CPS staff members' caseloads.

““This investigation illustrated the untenable position that DFPS staff members often occupy when they work a CWOP shift: They are simultaneously responsible for the children who are on their assigned caseloads and the [childen] they are charged to supervise at a CWOP location,” read one court monitors report.

Turnover in CPS has spiked in recent years, with one in three leaving.

Youth in CWOP have been trafficked for sex, abused, and some have run away from the lax placements and have been killed shortly afterwards. Federal court monitors repeatedly noted the dangers of the placements — most recently calling it “unreasonable risk” earlier this year.

The state said it was working to increase capacity for these youth, often called “high-acuity.”

Federal receivership could remove the governor and state commissioners from administering the program as it did in the controversial move Washington D.C. nearly 30 years ago. Marcia Robison Lowry was the lead plaintiffs' attorney on that D.C. case and is one of the attorneys on the Texas’ federal litigation that began in 2011.

It wasn’t clear what portions of the foster system would be impacted. The litigation only covers youth who are in Permanent Managing Conservatorship, which is around 9,000 youth.

Jack was expected to hear arguments in December.

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Paul Flahive can be reached at Paul@tpr.org