NEW ORLEANS (CN) — The Fifth Circuit heard Texas Attorney General Ken Paxton’s office defend his state’s foster child care system Thursday by saying that attorneys for the class of 12,000 foster kids “cherry-picked” a dozen tragic cases of foster care abuse, rather than using a random sample.
Texas Assistant Solicitor General Jody Hughes said the class “ultimately failed to show a classwide problem” during the federal trial. “They hand-picked a few unfortunate cases,” Hughes said.
But U.S. Circuit Judge Stephen Higginson, an appointee of President Barack Obama, cited statistics presented in the trial court: that 50 to 100 percent of kids in foster care have been sexually abused.
Hughes acknowledged the abuse. “But the question remains by whom and when?” he asked.
Hughes told the panel of three judges that to enter the foster system, children already will have suffered abuse and neglect.
In January the District Court ordered two special masters to oversee the state’s foster care system for three years. Paxton filed an appeal, and the Fifth Circuit temporarily stayed the ruling so it could hear arguments.
On Thursday, the Fifth Circuit panel was asked to decide whether the Legislature’s efforts to hire more people for the foster care system and increase its funding can fix a system that has long been acknowledged as broken. They will also decide how much, if any, of the full Fifth Circuit’s stay should remain in effect.
In her ruling last year, U.S. District Judge Janis Graham Jack of Corpus Christi cited numerous problems with the system. She obligated the state to provide services, such as driver’s education, at no cost for children in foster care.
Plaintiffs’ lead counsel Paul Yetter said the rationale behind Judge Jack’s driver’s permit decision is that having a driver’s permit give the teens skills they will need as adults.
Today, Yetter said, “These kids come out of the system far worse than they go in.”
But Higginson wondered if Jack had been carried away in her driver’s ed requirement.
“How possibly could the 14th Amendment require a state to pay for driver’s ed?” he asked.
Higginson said the case is about foster kids having a “substantive due process” right under the 14th Amendment to be free from unreasonable risk of harm while in state care.
He added: “We have a lot of case law that says you can’t interfere at a micromanaging level.”
Yetter replied by citing Family and Protective Services Commissioner Henry “Hank” Whitman’s testimony to a Senate panel, that 27 percent of foster children who “age out” of foster care end up in jail. Whitman testified that a startling majority fall into sex trafficking. And 49 percent of girls become pregnant before they turn 19, according to evidence presented during trial.
Yetter said Texas officials have known for 30 years how bad the foster care system is and have ignored its heinous flaws. Even as Texas “says in court that everything is fine” with its foster care system, outside of court state officials talk about the system being in “crisis,” Yetter said.
He said that crisis has been continuing for 30 years, and that “children who age out of foster care are costing the state tremendously.”
“These children come out of the system far worse than they go in,” Yetter told the judges.
He said Texas “underestimates numbers” and ignores problems.
For instance, he said, Texas does not track child-on-child abuse.
“Can you imagine a prison not tracking prisoner-on-prisoner abuse?” he asked.
Yetter rejected Hughes’ “cherry-picking” argument.
“It wasn’t just a small group of handpicked plaintiffs. It was systemic,” Yetter said.
In response to a question about what precisely has changed since Judge Jack’s ruling, Yetter said the state has allotted “lots more money” to the foster-care system, but has retained the same policies and the same “fundamental systemic problems.”
Near the end of the hearing, U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee, said he could not make heads or tails of the issue.
“I don’t think we have a clear picture of where this case is,” Southwick said.
Southwick and Higginson separately questioned whether there is any “legitimate basis for a resolution outside of the district court.”
Both sides have several more months to file briefs. The Fifth Circuit has arranged for a mediator to see if a resolution might be reached.
A ruling could take months.
A separate Fifth Circuit panel will hear Paxton’s appeal of Jack’s ruling on its merits.
U.S. Circuit Judge James Dennis, a Clinton appointee, participated electronically Thursday. He asked no questions.
Paxton defended his case in a statement Thursday.
“This case raises serious federalism concerns when an unelected federal judge sought to substitute her own individual judgment for that of the people of Texas’ duly elected representatives, executive officers, and judges,” Paxton said.
“The district court’s misguided directives will irreparably harm the foster care system, uproot many children, and reverse the progress that Texas has made since the Legislature enacted landmark changes to the system last year.
“Even after spending two years and over $1.4 million, the special masters’ plan detailed in the district court’s order fails to improve the realistic operations of the foster care system, and it causes actual harm to current families,” Paxton said.