Texas Foster Care System Back in Fifth Circuit

NEW ORLEANS (CN) – An attorney’s description Thursday before a Fifth Circuit panel of the “grave problems” in Texas’ dysfunctional foster care system – including rampant sexual abuse, unsupervised children housed together, and medical records in disarray – sounded eerily similar to recent reports of the state’s temporary housing for immigrant children.  

Children of all ages are housed together, often without nighttime supervision, attorney Paul Yetter stressed during Thursday’s oral arguments in the New Orleans-based federal appeals court. Yetter is lead counsel for the children named as plaintiffs in a class action.

He said older children who are known sexual abusers are sometimes placed in a home with young children and left completely unsupervised, usually at night, and even when they are known offenders, their records are often not retrievable or shared because of the state’s hopelessly inefficient records system, so no one realizes the danger posed by the situation.

Proper foster care requires adequate resources and supervision, Yetter told the three-judge Fifth Circuit panel.

“It’s just that simple,” he said.

Yetter said two key elements to fixing the Texas foster system are “adequate resources and reliable information.”

But he said state lawyers from Attorney General Ken Paxton’s office “seek to undermine the remedy” prescribed.

The state foster system sees roughly 12,000 kids annually. Court documents say children leave Texas foster care with a five times greater risk of post-traumatic stress disorder than combat veterans.

A scathing 260-page ruling in 2015 from U.S. District Judge Janis Graham Jack of the Southern District of Texas blasted the state 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.

Jack’s order noted that children who become permanent wards of the state “almost uniformly leave state custody more damaged than when they entered.”

Following that ruling, Jack appointed two special masters to the case. In late 2016, the special masters provided 56 recommendations to improve care provided by the Texas Department of Family and Protective Services, or DFPS, in its long-term foster care system.

The Fifth Circuit heard arguments in Texas’ appeal of Jack’s order last May and issued a ruling in October upholding some but not all of Jack’s order.

Jack’s order blasted the state for not tracking child-on-child sexual abuse and placing children in homes without 24-hour supervision.

Much of Thursday’s hearing focused on these two issues. The case is back in the Fifth Circuit after the state appealed the district court’s modified injunction issued in November, which Paxton says reinstated provisions that the Fifth Circuit vacated.

Yetter told the panel the “grave problems” created by lack of supervision of groups of six or more children is unique to Texas.

He said homes oftentimes house seven to 12 children, with kids being unsupervised, particularly at night.

“There is no other state in the nation that allows this without 24-hour supervision,” Yetter said.

Yetter said the state changed the name of the facilities that house multiple children without adequate supervision, as if calling the houses by another name changes the gravity of the situation.

But Joseph “Jody” Hughes, assistant solicitor general under Paxton, told the panel judges “there is no reason for the district court to revisit [the issue of foster housing] whatsoever.”

As for creating an online application that would track the records of tens of thousands of children in one, easy-to-use system, Hughes said it just isn’t feasible.

Senior U.S. Circuit Judge Patrick Higginbotham, a Ronald Reagan appointee, noted Thursday that without having a streamlined online records system, kids easily fall through the cracks. Case workers, he said, cannot read a child’s records or find out where that child is.

In the court’s 103-page ruling from October, Higginbotham recounted an experience of one plaintiff, referred to as S.A. in court records: “Four months into foster care, S.A. reported being sexually abused by an older child in her foster home. DFPS sent no agency staff to interview S.A., and there is no record that anyone from the agency followed up with the private company to which it had outsourced the investigation.”

After S.A. entered the state’s long-term care, DFPS moved her to 33 different homes. She went to 16 schools and had 28 case workers.

She missed at least two chances for adoption because her caseworkers did not update her records, Higginbotham wrote.

S.A. aged out of foster care at 18 and could not remember all the places she had lived.

“The five-year-old girl DFPS had taken under its protection left the state’s care 13 years later psychologically scarred, deprived of capacities for citizenship and productive adult life. S.A.’s experience is typical for [permanent managing conservatorship] children,” the October ruling states.

During his arguments, Yetter noted that other states – for instance, Tennessee, New Jersey and Washington, D.C. – have the type of online records system the plaintiffs are asking Texas to implement, but during rebuttal Hughes said something of the sort could cost upwards of tens of millions of dollars and probably wouldn’t be as efficient as it sounds.

Paxton said in a statement after the hearing that he is confident the Fifth Circuit will side with the state.

“In October, the 5th Circuit reversed several of the district court’s liability rulings and held that the district court’s sweeping permanent injunction far exceeded permissible limits. In modifying the injunction, the district court has again overreached,” he said. “The improper provisions ordered by an unelected federal judge are not only impractical, they are actually harmful to foster care caseworkers and the children they care for each day.”

U.S. Circuit Judges Jerry E. Smith, another Reagan appointee, and Edith Brown Clement, a George W. Bush appointee, also sat on the panel.

The judges did not indicate when or how they will rule. The district court’s injunction has been stayed pending the Fifth Circuit decision.

The conditions in the state foster care system described by Yetter called to mind reports of temporary housing in Texas for immigrant children separated from their adult relatives after crossing the U.S.-Mexico border.

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