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Federal judge questions Texas 'hubris' over foster care

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.

In a federal court hearing where the Texas Department of Family and Protective Services was accused of among other things medical negligence and obscuring its own statistics on children in unsafe placements — Judge Janis Jack appeared insulted that the state had recently filed a motion to nullify substantive portions of the court’s oversight.

“To have the hubris to file a motion for relief is just beyond me,” she said at the conclusion of the hearing. She will determine the fate of that motion in June.

Lawyers for the state argued in the Feb. 13 filing that it has shown a good faith effort to comply with the federal court's orders — often showing more than 90% compliance in some areas. In a statement, the department said the state has spent $100 million, that its caseworkers were better trained with lower caseloads and that investigations occurred more rapidly.

“These improvements are clearly documented and have resulted in the state’s compliance with all remedial orders. We believe now is the right time to narrow the scope of this litigation by moving for relief on a subset of remedial orders the state feels strongly it has fully satisfied,” said Patrick Crimmins, a DFPS spokesperson.

The court had already certified compliance in two of the 12 orders it sought to vacate.

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.

But Jack is currently weighing contempt fines over Texas' lack of compliance in numerous other areas. There are a total of more than 50 court orders upheld by the 5th Circuit Court of Appeals in 2018.

And Friday's hearing saw new allegations from plaintiffs' attorneys and from Jack that the state was both hiding logs of serious incidents and manipulating its own statistics for children without placement (CWOP). These are youth who are housed in hotels or state-leased houses staffed by a rotating case of staff members, contractors and security guards, rather than foster homes or treatment centers.

The children in CWOP are generally older and have higher levels of mental health needs.

Experts have decried the practice, calling it unsafe. Much of December’s contempt hearing centered on the safety around the locations.

Court monitors filed two reports this week showing continuing issues with CWOP and how forthcoming DFPS has been. The first highlighted two serious incident reports that DFPS failed to pass along to court monitors. One child, after having been beaten up several times by other kids lashed out at staff and put one of them in the hospital with a concussion. He was arrested. In another incident, a young woman ran away from a CWOP placement, was raped, then returned the next day. Neither day's logs were turned over.

“What is stunning about the state's continually hiding records, failing to produce, obfuscating the status of these children…” Jack said.

Court monitors were told about both incidents by stakeholders and “whistleblowers” according to Jack. News reports about the sexual assault quoted police who said this was the third time youth staying at that location had been assaulted.

“We were not trying to hide that,” said Prerak Shah, an attorney for DFPS, pointing to notes kept in another state system “She ran away, your honor. We noted it and flagged it.”

DFPS said the runaway had been excluded from reports since they didn’t send logs for CWOP on a child's first day. DFPS said the practice has now ended.

The judge also questioned why the girl had not been counted as in CWOP on those days. In the December contempt hearing, an ad litem attorney had testified that caseworkers were regularly driving youth around in their cars to avoid having to count them as CWOP.

“The statistics we're getting from the state have been skewed,” said Paul Yetter, attorney representing current and former foster youth “This child is a perfect example. She spent all but 52 minutes in a CWOP setting on February the 5th, and they didn't count her.”

In another filing late Thursday, monitors pointed to problems with a six-year old being housed in an Austin hotel by DFPS because she had been kicked out of several other licensed placements because of her behavior. At one residential treatment center, staff said she had 157 serious incidents in 60 days.

The girl is highly medicated, being prescribed five psychotropic drugs, and monitors found the drugs were not given as prescribed, were not stored appropriately, and caused confusion among staff.

Jack was so upset by the report she asked DFPS to leave the hearing and confirm if a medical neglect investigation had been launched as a result. When the staff member returned, she confirmed that one had been launched that day, drawing further recriminations from the court.

Another hearing in the 13 year federal litigation not expected until June.

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Paul Flahive can be reached at Paul@tpr.org