Will Texas Keep Fighting Foster Care Reform?

More than three years ago, a federal judge handed down court orders to reform Texas’ foster care system. And for more than three years, state lawyers have fought against those orders.

Child advocacy groups sued Texas in 2011, accusing the Department of Family and Protective Services of showing deliberate indifference to the roughly 12,000 kids stuck in long-term foster care until they age out of the system.
Child advocacy groups sued Texas in 2011, accusing the Department of Family and Protective Services of showing deliberate indifference to the roughly 12,000 kids stuck in long-term foster care until they age out of the system. Creative Commons

More than three years ago, a federal judge handed down court orders to reform Texas’ foster care system. And for more than three years, state lawyers have fought against those orders.

Child advocacy groups sued Texas in 2011, accusing the Department of Family and Protective Services of showing deliberate indifference to the roughly 12,000 kids stuck in long-term foster care until they age out of the system.
Child advocacy groups sued Texas in 2011, accusing the Department of Family and Protective Services of showing deliberate indifference to the roughly 12,000 kids stuck in long-term foster care until they age out of the system. Creative Commons

It’s been more than three years since a federal judge ruled that Texas dumps some of the state’s most vulnerable children into a foster care system “where rape, abuse, psychotropic medication and instability are the norm.”

Following a 2015 trial in a lawsuit brought by children’s advocacy groups, federal district judge Janis Jack of Corpus Christi also concluded that state leaders can’t be trusted to reform the system on their own. Her blistering, 260-page verdict delivered in December 2015 accused state officials of deep-sixing an internal review that revealed “staggering” failures in child abuse investigations. She scolded one state witness who attempted to manipulate department data, including lowering child fatality stats. The judge chastised another state expert who, in an attempt to debunk the plaintiffs’ claims, further traumatized a teenage girl who’d already been battered by the system.

Since then, lawyers with Texas Attorney General Ken Paxton’s office have spent millions fighting the suit in court, where they’ve mostly lost. Until this month, when a ruling in the state’s latest challenge delivered a victory of sorts. Last week, a federal appeals court blocked a major piece of Jack’s order that would’ve required the state to revamp its dysfunctional computer system for tracking kids in foster care. Paxton’s office hasn’t said whether it plans to file more appeals in the case.

Ken Paxton image cropped for hero purposes
Texas Attorney General Ken Paxton.  Patrick Michels

“From our perspective, the time for the state to fight is over and the time for the state to fix is at hand,” said Paul Yetter, a Houston attorney representing several foster children in the lawsuit. “The tragedy of this delay is that the state is determined to continue putting children through a system where they come out worse than when they entered.”

Child advocacy groups sued Texas in 2011, accusing the Department of Family and Protective Services of showing deliberate indifference to the roughly 12,000 kids stuck in long-term foster care until they age out of the system. The case highlighted stories of abuse and neglect suffered by numerous children in long-term foster care and argued such treatment is the norm rather than the exception. Jack ultimately agreed, writing that evidence presented at trial had revealed the state ignored internal failures for years and showed a “systemic willingness to put children in harm’s way.”

Marcia Lowry, executive director of A Better Childhood, one of the groups that sued the state, says Texas has fought harder than other states where advocates have pushed for reforms. According to the Dallas Morning News, Paxton’s office has spent nearly $10 million fighting the 8-year-old lawsuit.

“Texas is unique in that plaintiffs won a large part of the case, and yet the state continues to appeal basically as many times as they can,” Lowry told the Observer. “It’s very troubling that the state continues to fight for a system that is demonstrably harmful to children, that they’d clearly rather spend their money fighting ruling after ruling rather than take the necessary steps to fix the system.” She hopes Texas stops fighting after this month’s appeals court ruling.

If past is prologue, that’s unlikely. While the state largely lost its latest challenge, it still has some legal runway. Paxton’s office could still delay the reforms the courts have left standing by filing even more challenges with the federal Fifth Circuit appeals court — or, if that fails, take the case to the U.S. Supreme Court.  In an emailed statement, Paxton spokesperson Marc Rylander applauded the Fifth Circuit for “rolling back this significant judicial overreach,” while also saying the office is still considering whether to keep challenging provisions the courts haven’t yet blocked. Governor Greg Abbott — who first defended the state against the lawsuit when it was filed during his tenure as attorney general — has publicly urged the courts to toss the case, citing some $500 million in new funding lawmakers allocated to the system two years ago for new hires and raises for overburdened caseworkers. 

Yetter, one of the plaintiffs’ attorneys, argues that the state’s cash infusion doesn’t address the systemic reforms needed to both alleviate crushing caseloads for child protective workers and adequately monitor kids in state custody. “We’ve seen absolutely no improvement in the quality of the care given to children,” he told the Observer. “If you simply pour more money onto a problem while ignoring the larger plan to solve that problem, it’s wasted money.”

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Michael Barajas is a staff writer covering civil rights for the Observer. You can reach him on Twitter or at [email protected].


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