(CN) – Starting Friday, Texas must pay daily fines of $50,000 for not abiding by a court order requiring caretakers to maintain 24-hour supervision of children in group foster homes, a federal judge ruled, adding to the more than $10 million the state has spent fighting reforms in court.
U.S. District Judge Janis Graham Jack handed down the sanctions order Thursday after finding she had been under the false impression for nearly six years that all group homes with more than 12 foster children had staff providing 24-7 supervision.
This includes residential treatment centers for children with behavioral problems where they are often sedated with multiple medications and “group residential organizations” that can house several hundred children, Jack wrote in a 25-page order.
In a December 2014 bench trial, Lisa Black, then-assistant commissioner of the Texas Department of Family and Protective Services’ Child Protective Services division, testified that Texas requires all group homes in the state with 13 or more children to be supervised at all hours by caretakers, according to the order.
“What is more egregious is that when Lisa Black made this statement, not one of defendants’ counsel, then-DFPS Commissioner John Specia, or any of the DFPS staff members present in the courtroom sought to correct this false testimony,” Jack wrote.
Nine children brought a class action in March 2011 on behalf of the thousands of kids in the state’s long-term foster care, or “permanent managing conservatorship.”
After 12 to 18 months, if the state has taken a child from an abusive or neglectful family and has not returned the child to the family or found a new permanent home, the child becomes a ward of the state.
After the 2014 bench trial, Jack issued a scathing order a year later writing that “rape, abuse, psychotropic medication, and instability are the norm” for children in Texas’ “broken” and understaffed foster care system.
“The most egregious problem is that [foster group homes] lack 24-hour awake-night supervision,” Jack wrote in the 260-page order.
She found Texas was violating the 14th Amendment rights of its foster kids and issued an injunction ordering the state to track child-on-child abuse and stop placing kids in homes without 24-hour supervision.
Jack issued the injunction after former Texas foster children testified that sexual abuse is a nightly problem in group homes.
One witness stated “sexual abuse ‘is usual rather than unusual’ with the abuse often occurring at night when there is no supervision.” Another testified that a “foster child was ‘sexually abused almost every night by one of the bigger boys in the home’ while the caretakers were asleep on the other side of the house,’” Jack wrote in her latest order.
She appointed two special masters to oversee reforms to the foster care system, and followed up with an injunction ordering Texas to limit caseloads to 14 to 17 children per caseworker and to create database containing all foster children’s records.
Texas has twice appealed Jack’s orders to the Fifth Circuit and the majority of a three-judge panel nixed the caseload cap and database mandate.
The monitors learned Sept. 9 that contrary to Black’s testimony, no residential treatment centers or general residential operations had been required by Texas law to provide 24-hour supervision of wards before the Fifth Circuit ordered it to do so in July, according to Jack’s ruling.
Despite the Fifth Circuit order, Jack says the violations are ongoing. The monitors made surprise visits in October to general residential operations, also called “cottage home campuses,” and found 14 of 15 did not have onsite 24-hour supervision, Jack wrote.
“It is axiomatic if children are in danger in homes of 7-12 without 24-hour supervision, then the danger only increases with the size of the population without supervision,” wrote Jack, a Bill Clinton appointee who took senior status in 2011.
She said DFPS has also missed deadlines for her order to implement a method for caseworkers to designate foster children as sexually abused in their electronic records.
The flag is crucial to identify children likely to abuse their peers, Jack wrote, as a former DFPS commissioner acknowledged that “children who are known victims of sexual abuse will act out with other children.”
The judge ordered Texas, starting Friday, to pay fines of $50,000 per day for seven business days, until Nov. 20, then fines of $100,000 a day thereafter.
She said Texas must pay the fines until it sends agency staff on unannounced visits to group homes at night, and they certify the homes have caretakers awake supervising children.
Asked for a response, Texas Attorney General Ken Paxton’s spokesman office said, “We are unable to comment on the substance of a pending litigation matter.”
Lead class counsel Paul Yetter, of the Houston firm Yetter Coleman, said the state has the staff needed to promptly do the inspections mandated by Jack’s order. “They just need to decide to do it,” he said.
“The order is the unfortunate but necessary result of long delays by the state in working to implement the court’s earlier rulings, as well as misinformation from the state years ago at the trial,” Yetter said in a phone call.