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Panel Sides With Texas in Battle Over Foster Care Reforms

Two Fifth Circuit judges who found last year that Texas failed to protect children in its foster care system from sexual and physical abuse agreed with the state Monday that a new computer system to centralize all children’s records, and more effectively track abuse, would be too expensive.

(CN) – Two Fifth Circuit judges who found last year that Texas failed to protect children in its foster care system from sexual and physical abuse agreed with the state Monday that a new computer system to centralize all children’s records, and more effectively track abuse, would be too expensive.

Texas has resisted reforms ordered by Senior U.S. District Judge Janis Graham Jack after she found in December 2015 the Texas Department of Family and Protective Services had ignored 20 years of reports pointing to the need for more caseworkers to fix the state’s “broken” foster care system.

The problems persisted even after the class action, filed in 2011, brought attention to them and state officials promised to implement reforms.

According to the case record, in fiscal year 2017, 38 children died in DFPS custody, 554 children spent two or more consecutive nights in hotels or government office buildings due to a lack of licensed foster homes, and 352 DFPS caseworkers quit.

Jack wrote that “rape, abuse, psychotropic medication and instability are the norm” in the Texas foster system, which now oversees around 12,000 youths, and children “almost uniformly leave state custody more damaged than when they entered.”

She issued an injunction ordering Texas to create a computer system containing all foster children’s medical, school, court, mental health and caseworker history records, finding it particularly egregious that DFPS was not tracking child-on-child abuse in foster homes.

The judge also ordered Texas to limit caseloads to 14 to 17 children per caseworker after two special masters she appointed for the case determined the average caseworker has time to manage 14 children in long-term foster care.

Texas appealed to the Fifth Circuit after rejecting all 56 recommendations the special masters made to improve its care of foster children.

Last October, a divided three-judge panel of the New Orleans-based appellate court agreed with Jack that Texas had been deliberately indifferent to the risk of physical and sexual abuse for children in licensed foster homes, but scrapped the caseworker cap and remanded the case to Jack to modify her injunction.

In striking down the cap, U.S. Circuit Judge Edith Brown Clement, a George W. Bush appointee, wrote for the majority, “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.”

Texas took issue Jack’s new injunction, claiming she had reinstated vacated parts of it and again appealed to the Fifth Circuit in November 2018.

At a hearing in March, Texas Assistant Solicitor General Joseph “Jody” Hughes said setting up a centralized database for foster children’s records was not feasible because it would cost tens of millions of dollars.

Attorney Paul Yetter with the Houston firm Yetter Coleman, lead counsel for the children named as plaintiffs in the class action, said in the March hearing that Tennessee, New Jersey and Washington, D.C. all had implemented such databases for their foster systems.

Joined by U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, Clement sided with Texas on Monday.

Though Clement and Smith had previously agreed with the challengers that a new DFPS computer system would address the caseworker shortage and disorganization issues that underlie the foster systems’ problems, they made a stunning reversal Monday.


“We see that our initial decision upholding the integrated computer system was erroneous. It is inconsistent with the broader remedial principles we laid out in Stukenberg I,” Clement wrote in a 12-page majority opinion, citing the majority’s October 2018 order.

She continued: “The multimillion-dollar computer-system overhaul—while maybe a best practice—goes well beyond what is minimally required to remedy the caseload and oversight violations. Indeed, we find it (just like the caseload cap) to be ‘too blunt a remedy for a complex problem.’” (Parentheses in original.)

Senior U.S. Circuit Judge Patrick Higginbotham dissented from the October 2018 order, agreeing with Jack that a caseworker cap is needed. He also faulted the majority Monday for striking down the mandate for a new DFPS computer system.

Texas Attorney General Ken Paxton, a Republican, is open in his opposition to abortion, frequently filing amicus briefs in support of pro-life laws passed by other Republican-led states.

In a 26-page dissenting opinion, Higginbotham, a Gerald Ford appointee, said he finds it puzzling that Texas’ “fervor for potential life subsides when that potential is realized” in the form of neglected or abused children who enter the state’s foster care system.

“The state’s noble enterprise to take custody of these children is being hollowed by bureaucratic wrangling and ineptitude, a threatened stain on Texas—and a retreat by this court, once a refuge for such innocents, ready to enforce federal law when a state fails its obligation to do so, as it must,” he wrote.

Higginbotham said there is no evidence for the state’s argument that a centralized database would be too expensive, only a statement made, with no supporting documentation, in the state’s brief that it would cost “hundreds of millions of dollars.”

The judge said that argument is undermined by the fact that much of the Texas DPFS funding comes from the federal government, more than $730 million in fiscal year 2016, and “billions of dollars from the federal treasury” since 2009.

He said the majority is deferring to Texas despite ample recent history that its foster care system is broken.

Judge Jack, in her 2015 order that found Texas was failing its wards, wrote the state had gone through seven DFPS commissioners since 2004 and state-commissioned studies had cited caseworkers’ excessive caseloads as the central problem going back to 1996, yet the system is “still broken.”

“It is to this history that my colleagues defer—in the name of federalism,” Higginbotham concluded in his dissent.

The challengers’ attorney, Yetter, said Monday the lack of a central database endangers foster children.

“Children will not be safe so long as the state can’t keep track of their medical, school, placement, and other records. The burden is on the state to get a plan for effective record-keeping,” he said in an email.

Despite Monday’s setback, the attorney is upbeat about the litigation.

“On balance, this is another step forward to meaningful reform. Time is running out for the state. It needs to stop fighting these children and start fixing its system,” Yetter said.

Paxton’s staff said they are pleased the panel recognized Jack had abused her discretion in ordering the computer system overhaul.

“These rulings would have cost taxpayers many millions of dollars and were not necessary to remedy any constitutional violation. We applaud the Fifth Circuit for rolling back this significant judicial overreach by the district court,” Paxton’s spokesman Marc Rylander said.

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