STATE

Texas fined $100k per day for failure to investigate foster care abuse

Austin American-Statesman

U.S. District Judge Janis Jack has presided over a federal lawsuit against Texas' troubled foster care system for more than a decade.

A day after a federal judge ordered Texas to pay $100,000 daily in fines for failing to comply with court-ordered fixes to its foster care system, the state on Tuesday asked the 5th Circuit Court of Appeals to overturn the ruling.

U.S. District Judge Janis Jack ordered the fines Monday evening for the state's repeated failures to timely and fully investigate allegations of abuse in the foster care system, holding a Texas official in contempt of court for a third time in the 13-year-old case.

Fine payments — $50,000 daily for each of two orders the court found the state is flouting — will go to a trust fund benefiting children in the state's permanent care.

In her scathing, 427-page ruling Monday, Jack listed dozens of instances in which errors or delays in investigations left children to go without treatment for physical and sexual abuse and allowed their providers to continue problematic behavior unfettered.

She detailed the story of one child with intellectual disabilities whose caretaker punched her in the face, fracturing her jaw in two places, in April 2022, months after an adult resident of the same facility reported the staff member for physical abuse.

Court monitors found that the incident "could have been prevented" had the Health and Human Services Commission complied with Jack's 2018 orders requiring the state agency to complete investigations in a timely manner.

Jack noted that the same child and numerous other residents in the state's permanent care had repeatedly reported abuse and neglect at the state-certified residential facility, C3 Christian Academy, over several months.

The facility lost its certification to operate through the Home and Community-Based Services Waiver Program, a state Medicaid program for the provision of services to people with intellectual or developmental disabilities, in 2023.

"Staff 6 broke Child C’s jaw nearly one year after she was tasered, seven months after she was locked in the bedroom, and five months after her outcry of sexual abuse by a staff member who was subsequently incarcerated for sexually abusing his stepdaughter," Jack, of the Southern District of Texas, wrote in her latest court order.

The order comes in response to a motion for contempt that the plaintiffs — two national child welfare advocacy groups — filed in April 2023 and which the court heard in early December. Those groups, Children's Rights and A Better Childhood, are suing the state on behalf of all children in Texas' permanent care.

In Monday's ruling, Jack excoriated the defendants, who include Gov. Greg Abbott and agency heads, for noncompliance and negligence, writing that the state has a "history of failing to comply with remedial orders and (a) lack of commitment to remedying the remaining problems."

Jack also lambasted the state for a litany of other problems with its foster care system. The court found that the system puts children at undue risk of violence and sexual abuse, allows overuse of psychotropic medications, and overloads caseworkers, among other issues.

Jack's ruling also presented more than 100 pages of evidence showing that children who are without placement — lodged by the state in hotels, offices and other locations — continue to "suffer grievous harms," including child-on-child assault, self-harm, sex trafficking and death amid "shockingly poor" physical conditions.

Abbott's office did not immediately respond to an American-Statesman request for comment Tuesday.

Monday's order did not grant the plaintiff's contempt motion relating to issues such as psychotropic medication use and high caseloads for caseworkers, but the judge could consider them at a later date.

Jack also put a pin in the plaintiffs' motion for partial receivership, which would put certain aspects of the foster care system under the administration of third-party child welfare experts.

Paul Yetter, a Houston-based attorney who has represented the plaintiffs since the case was filed, described the decision as "measured" Monday evening.

"The judge’s ruling is measured but urgent, given the shocking evidence," Yetter told the Statesman in an email. "Innocent children are suffering every day. After all these years, when will state leadership get serious about fixing this disaster?"

From 2021:Foster care crisis worsens, with more children sleeping in offices, hotels, churches

On May 8, 2017, Grace Kelsoe, a case manager at Helping Hand Home for Children, visited the home of a foster care parent. Kelsoe, who had worked as a case manager for three years, said it's hard to find a more vulnerable population than kids in the foster care system. "It's kind of a basic human right to live with their parents, and they don't, and that's for a good reason, but we have to protect them," she said.

Texas foster care system to remain under court's watch

The fines put the blame squarely on the state Health and Human Services Commission's leaders for failing to protect children who had reported abuse, neglect or exploitation.

The agency handles investigations into complaints involving children and adults with intellectual and developmental disabilities who reside in care facilities, a small subset of whom are in the state’s permanent care.

According to the ruling, HHS Commmissioner Cecile Ernst Young, a 2020 appointee of the governor, “failed to establish that she has substantially complied or made good faith efforts to comply” with two court orders from 2018 requiring prompt and complete investigations.

The commission did not answer the Statesman's questions Tuesday about how it would pay the fines and how long it estimates it will take to comply with the orders.

"HHSC is reviewing the 427-page order and its attachments," commission spokesperson Tiffany Young wrote in an email to the Statesman.

While the Department of Family and Protective Services is also a defendant in the lawsuit, Jack found that department's commissioner had made efforts to improve deficiencies in investigations as per her orders. Family and Protective Services handles the majority of foster care investigations.

A visitation room is set up with a bed at a Child Protective Services office in Austin in 2016 because of the lack of homes for a growing number of foster children.

The state's foster care system has been under court supervision for years as a result of the lawsuit, first filed in 2011 against former Gov. Rick Perry.

Jack, who was appointed in 1993 by then-President Bill Clinton, appointed court monitors to keep tabs on the state's compliance. She has held the state in contempt three times, including in 2019 and 2020. The state previously paid $150,000 in fines after Jack found that it violated orders requiring homes with six or more children to be under adult supervision at all times.

Jack indicated her exasperation with the state's battles to fight her past rulings, noting that the conservative 5th Circuit Court of Appeals wrote that it “seems painfully obvious” that “high error rates in abuse investigations ... place children at a substantial risk of serious harm" in a ruling partially upholding her 2018 orders.

Her unusually long order released Monday — which includes the word "fail" 286 times across its 427 pages — suggested Texas' foster care system will continue to be under court supervision for several more years.

"The Court is aware that this Order is of extraordinary length due to the fact (of the) intensive nature of these findings and the Court’s opinion that the stories of these children need to be told," Jack wrote in a footnote.

A compliance hearing is scheduled for June 26.

The full order from the Southern District of Texas is below.

Editor's note: This story previously misidentified the first name of the plaintiffs' attorney. The story has been updated to reflect that his name is Paul Yetter.