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Judge gives Texas mixed marks on foster care reforms

Texas could be hit with a contempt order in the long-running case, the judge warned, if it continues to place foster children in understaffed facilities they frequently run away from.

(CN) — A federal judge said Friday she’s optimistic about new leadership of Texas’ foster care system but threatened to hold the state in contempt if it does not stop placing children in unlicensed settings like hotels and office buildings where overwhelmed staffers cannot keep tabs on them.

“I understand these children have very complicated histories,” Senior U.S. District Judge Janis Graham Jack told leaders of the state’s Department of Family and Protective Services at a status conference. “They come into your care with great needs. I just don’t want them going out of your care with even greater needs which is that’s what’s been happening.”

She praised DFPS for complying with her orders to give all caseworkers extensive training before they start the job and limit their caseloads to no more than 17 children.

But she complained the agency is showing a lack of urgency for other reforms she mandated in 2018, following her 2014 order finding “rape, abuse, psychotropic medication, and instability are the norm” for children in the state’s “broken” foster care system.

Reviewing a Jan. 20 report from two monitors she appointed to oversee fixes, their fifth update in the class action filed in 2011, Jack focused on an account of a 13-year-old girl whose service plan required staff to keep her under “line of sight” supervision because she had repeatedly run away from residential treatment centers and foster homes.

Despite that designation, the teen went to her bedroom in an unlicensed setting one night in October around 12:30 a.m. and 25 minutes later a caseworker making rounds found she had escaped out a window.

Police found her within hours. She was put in a psychiatric hospital for two weeks where she learned she was pregnant.

She is now in a foster home receiving individual therapy from foster parents trained to counsel traumatized youth, said Erica Banuelos, associate commissioner of DFPS Child Protective Services.

“Line of sight. What does that mean to your caseworkers?” Jack pressed.

“That means we want to have a close proximity to that youth,” Banuelos explained. “However, we are not in the actual room with them 24/7.”

“Why?” Jack asked. “If line of sight means line of sight. This is a sex trafficked child with a history of run away. ... This is not good.”

She turned her attention to DFPS Commissioner Stephanie Muth, who took the position Jan. 2 following her appointment by Governor Greg Abbott.

Muth came out of retirement for the job following a long career in executive positions at the Texas Health and Human Services Commission, which licenses residential treatment centers that care for the state’s wards, including three years as HHSC’s state Medicaid director.

“I know you’re going to be a valuable asset for these children. And I’m glad you joined us. You may not be,” Jack joked at the start of Friday’s hearing.

But the judge called Muth out about the importance of line-of-sight supervision.

“Ms. Muth, line of sight has got to be line of sight,” she stressed. “These children are dying … children without placements. And they are getting raped and they are running away. And these are line-of-sight children. It means keep your eye on them. It’s not an equivocation.”

The Bill Clinton appointee also grilled DFPS officials about a 15-year-old boy named A.W. in court records who had been placed at a DFPS office.

His caseworker dropped him off at his friend’s apartment in March 2022 to play basketball but did not document the apartment number. A.W. stopped answering the caseworker’s calls that night after getting their permission to go to a movie.

The caseworker waited until the following morning to report A.W. missing to police. And a few nights later, with A.W. sleeping at another friend’s home, that friend fatally shot him and another person in the residence, court records state.

Banuelos told Jack the caseworker had been fired because they did not follow procedures despite receiving DFPS’s full training. She also pledged to put a written definition of line of sight in the agency’s manual to clarify exactly what it means.

Of the 9,100 foster children in the state’s long-term care, or its “permanent management conservatorship,” Banuelos noted only 47 are in these types of temporary unlicensed placements. But she said “they are an important population” and the state is pouring lots of resources into their care.

Jack asked Muth if she could commit to having zero children in such settings by a hearing set for June 27. Muth declined to make any promises.

“Your honor, I can commit that we will continue to put the same level of effort towards reducing those numbers,” the commissioner said.

“I appreciate that,” Jack replied. “But I just don’t understand why we’re still here. … I find that having one child in this type of a dangerous placement is unsafe and may be a matter for a contempt hearing in June.”

“I’m just giving you fair warning about that. Because there’s really no excuse for this,” she added.

Jack has already hit Texas with at least two contempt orders in the litigation.

In November 2019, she ordered the state to pay fines of $50,000 per day for failing to comply with her requirement for caretakers to maintain 24-hour supervision of children in group foster homes,

A trio of experts Jack tapped for the case recommended in January 2022 that Texas bolster mental health services for state wards and their biological families so they can return to their homes.

Jack noted on Friday that Texas is flush with cash, sitting on a $32 billion surplus for the 2024-2025 budget lawmakers will set this year during the Legislature’s biennial regular session.

To make it easier for relatives of foster kids to take them in, she said DFPS officials should lobby the Legislature to remove a statutory cap limiting DFPS’s payments for “unlicensed kinship placements” to $13.50 per day and make them equal to the $27.07 daily payments licensed foster parents get for children they are caring for.

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