Fifth Circuit Scrutinizes Texas Foster Care System

NEW ORLEANS (CN) — The Fifth Circuit on Monday heard Texas Attorney General Ken Paxton’s office defend the state’s foster child care system, which one judge noted leaves the 12,000 children annually in its care with a five times greater risk of post-traumatic stress disorder than combat veterans.

Even in acknowledging the system’s failures, however, it was unclear from oral arguments Monday just how much of the 2015 ruling from U.S. District Judge Janis Graham Jack of the Southern District of Texas the Fifth Circuit is likely to uphold.

Jack’s scathing 260-page December 2015 order blasted Texas for running an understaffed foster care system where “rape, abuse, psychotropic medication, and instability are the norm,” in violation of children’s constitutional rights to due process.

After that 2015 ruling, Jack appointed two special masters to the case. In late 2017, the special masters made 56 recommendations to improve the care the Texas Department of Family and Protective Services provides in its long-term foster care system.

Among the suggestions were hiring more case workers, capping the number of children each case worker can handle and providing foster kids with driver’s education before they leave the system.

The judges on Monday appeared to be very familiar with the history of the case, filed in 2011 against then-Governor Rick Perry, who is now the U.S. secretary of energy.

Joseph “Jody” Hughes, assistant solicitor general under Paxton, told the judges it would be impossible to put each foster child into a home to receive individualized care because there are so many thousand children in need of the system and “not everyone can be a foster parent.”

Fifth Circuit Judge Edith Brown Clement, a George W. Bush appointee, asked Hughes: “How does it work?” — that Texas has simultaneously taken on more case workers but also more foster kids.

Hughes said Texas has one of the highest numbers of foster kids in the nation. He said that compared with national statistics, foster homes in Texas are well run, or comparable with the national average.

“We do care deeply for these children,” Hughes said.

“We are not the best maybe,” Hughes said during rebuttal. “But we do pretty well.”

Fifth Circuit Judge Jerry E. Smith, a Reagan nominee who presided on the panel, noted that the trial judge, in his ruling, called the state “uncooperative and unresponsive” to the needs of foster children.

For instance, class attorneys say the state does not chart where abuses happen. So how can the state possibly address abuses it does not recognize or track?

Fifth Circuit Judge Patrick Higginbotham, also a Reagan appointee, noted that foster care in Texas looks bleak by statistics. For instance, he said, children who pass through the system “have a five times greater chance of having post-traumatic stress disorder than combat veterans.”

Higginbotham criticized the state’s “unnecessary separation of siblings” and sounded chary of Hughes’ cheerful announcement that foster care kids can attend college for free at any Texas state institution through a fee-waiver program.

“Come on,” Higginbotham said, “these are not college-bound kids. … This is a machine that spins itself.”

Though he credited the Legislature with trying to fix the system with money, he said money alone could not solve the problems: “The real problem here is the system.”

Paul Yetter of Houston, lead counsel for the children, called it a self-perpetuating cycle of abuse. Noting that Texas does not even bother to track the abuses — which abuses happen when, where, to whom and by whom — there is little hope of stopping them.

Judge Smith appeared annoyed by plaintiffs’ many arguments against the system and by the numerous suggestions from the special masters on how the system can be fixed.

“Is every single item in the injunction necessary?” Smith asked Yetter.

Smith criticized the injunction as “unnecessarily cluttered” with stipulations, such as that all kids who age out of the foster care system should know how to drive.

“How does that belong with all of this?” Smith asked. “What does having a driver license have to do with safety and personal security?”

Yetter replied: “The state puts these kids at risk by putting them into the world completely unprepared.” In doing so, he said, the state essentially re-commits them to a system.

He cited the statistic that 49 percent of girls who go through the Texas foster care system will become pregnant before their 19th birthday, and of those babies born, 70 percent will end up in foster care.

Even the state’s own top officials have told the Legislature “we have a problem,” Yetter said.

“You’re overstating it,” Smith complained. “And you know you’re overstating it.”

He continued: “Your credit is high, but you hurt it by making absolutist statements like this that you know the record doesn’t support.”

Yetter replied that the record offers “very significant” support of his statements.

When Judge Higginbotham asked Yetter to distill the case into the two most pressing factors he would liked to see changed through litigation, Yetter said he wants to see case standards and caseloads addressed first; and better oversight of long-term care.

“Foster group homes are dangerous places,” Yetter said.

“The state knows of the chronic safety risks and refuses to even track them,” he said.

On the courthouse steps after the hearing, Yetter called the judges “a very impressive panel.”

“They’ve obviously read the material,” he said.

In a statement after the hearing, Paxton’s office said it was confident it would prevail, and took a swipe at the “unelected” federal trial judge.

“We successfully demonstrated the absurdity of the lower court’s ruling to the Fifth Circuit,” Paxton said in the statement. “The ruling was arrived at by an unelected federal judge who misapplied the law, hijacked control of the state’s foster care system, and ordered an ill-conceived plan by the special masters that is both incomplete and impractical.”

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