Fifth Circuit Finds Texas’ Foster Care Horrendous

Texas Attorney General Ken Paxton wants the federal courts to butt out and let Texas craft its own foster-care reforms.

HOUSTON (CN) — Texas’ understaffed foster care system often fails to investigate children’s reports of sexual abuse, but a federal judge went too far in mandating a cap of 17 children per caseworker, a divided Fifth Circuit ruled Thursday.

The Texas Department of Family and Protective Services’ deep dysfunction has festered for decades, even as the root of the problem has been laid bare again and again, according to a three-judge Fifth Circuit panel.

Since 1996, several reports, studies and internal audits have concluded there are not enough caseworkers for the “unmanageably high caseloads” of thousands of state wards, and that staff turnover and burnout plague the agency, Fifth Circuit Judge Edith Brown Clement wrote in her majority opinion.

“Every single one of the reports in the record identifies unmanageably high caseloads as one of the most urgent problems DFPS faces and explicitly warns that high caseloads compromise caseworkers’ ability to keep children safe,” Clement wrote.

Guardians of nine children sued on behalf of the 12,000 children in the state’s long-term foster care or “Permanent Managing Conservatorship” in March 2011.

After a two-week trial, U.S. District Judge Janis Graham Jack slammed Texas in December 2015 for not tracking child-on-child sexual abuse and for placing children in homes without 24-hour supervision

One former Texas foster child testified that she had 10 caseworkers during her seven years in state custody, and that after she reported to DFPS that she was sexually abused at a foster home, no one investigated or visited her at the home.

“Whenever I had issues in some of the homes, I didn’t know who to go to, I didn’t know who to trust and so I just — most of the time I just kept my mouth shut,” she said, according to the 103-page ruling.

(Clement added in a footnote: “Children exiting foster care in 2008 after spending three years or more in the PMC had an average of 6.39 caseworkers. There is no evidence that this number has been significantly reduced.”)

Jack certified a general class and three subclasses in August 2013 that alleged violations of due process under the 14th Amendment to adequate care and a safe, secure, and suitable placement while in state custody.

To guide reforms, Jack appointed two special masters who determined that the average caseworker has time to manage 14 children in long-term foster care.

The special masters asked the agency to figure out how many new caseworkers it would need to hire to meet that caseload level, but it declined, saying it was “not feasible” to gather that information.

Texas appealed to the Fifth Circuit after rejecting all 56 recommendations the special masters made to improve its care of its wards. Attorney General Ken Paxton said the state was working on its own reforms.

But Clement said Jack correctly found Texas was deliberately indifferent to the risk of physical and sexual abuse for children in licensed foster homes — and Texas’ reform efforts did not impress her.

“The state contends that DFPS has taken several steps to address the risks associated with high caseloads, including hiring more caseworkers, employing secondary workers and support staff, and initiating a new program to improve caseworker training. Under the circumstances, none of these steps constitute a ‘reasonable’ response to the systemic issues,” Clement wrote in her 73-page majority opinion. She is a George W. Bush appointee.

Despite that finding, the majority scrapped Jack’s order that the state limit caseloads to 14 to 17 children per caseworker.

“While caseload caps strike at the heart of the workload problem, we agree with the state that they are too blunt a remedy for a complex problem. They constitute ‘relief beyond what [is] minimally required’ to remedy the constitutional violation,” Clement wrote, joined by Fifth Circuit Judge Jerry Smith, a Ronald Reagan appointee.

Clement said that a better, more flexible approach should account for the complexity of each child’s case and caseworkers’ experience.

Fifth Circuit Judge Patrick Higginbotham, in a partial concurrence but otherwise dissenting, blasted the majority for vacating the caseload mandate.

“In place of the discipline imposed by the district court’s order, the majority inexplicably affords what it terms a ‘prudent’ and ‘creative’ bureaucracy the flexibility to set its own course and to proceed at its own pace — ignoring that this is what DFPS has been doing for twenty years,” he wrote in a 29-page dissent.

Higginbotham recounted the experience of plaintiff S.A.: “Four months into foster care, S.A. reported being sexually abused by an older child in her foster home. DFPS sent no agency staff to interview S.A., and there is no record that anyone from the agency followed up with the private company to which it had outsourced the investigation,” he wrote.

After S.A. entered the state’s long-term care, DFPS moved her to 33 different homes; she went to 16 schools and had 28 caseworkers.

She missed at least two chances of adoption because her caseworkers did not update her records, Higginbotham wrote.

S.A. aged out of foster care at 18 and could not remember all the places she had lived.

“The five-year-old girl DFPS had taken under its protection left the state’s care thirteen years later psychologically scarred, deprived of capacities for citizenship and productive adult life. S.A.’s experience is typical for PMC [Permanent Managing Conservatorship] children,” wrote Higginbotham, a Reagan appointee.

The majority vacated and remanded Jack’s permanent injunction.

Higginbotham summed it up in the first paragraph of his dissent: “The care of our children has long been a concern of society and state, with vivid images of Charles Loring Brace’s ‘orphan trains’ shipping children from the streets of New York to the Midwest in the 1850s, to the development of the modern institutions of child welfare. Today, we add another page to that ongoing narrative.”

AG Paxton’s spokeswoman said the order affirmed many of the changes Texas has made to its foster care system.

“While the program still faces challenges, the Fifth Circuit upheld significant parts of the program as constitutional while finding that the district court engaged in judicial overreach in entering an overbroad and impractical injunction,” Kayleigh Lovvorn said in a statement.

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