Judge to decide if Texas too slow in improving foster care — and deserves penalty

A showdown started Monday, Dec. 4, 2023, in Dallas over whether Gov. Greg Abbott and two state agencies should be held in contempt of court for failing to make needed improvements in foster care. (File photo/Dallas Morning News/TNS)
A showdown started Monday, Dec. 4, 2023, in Dallas over whether Gov. Greg Abbott and two state agencies should be held in contempt of court for failing to make needed improvements in foster care. (File photo/Dallas Morning News/TNS)

A showdown started Monday in Dallas over whether Gov. Greg Abbott and two state agencies should be held in contempt of court for failing to make needed improvements in foster care.

U.S. District Judge Janis Graham Jack has been unhappy with Texas' compliance with her edicts in a long-running class-action lawsuit over allegedly unsafe conditions in the long-term foster care system.

Lawyers for the children are asking Jack to slap the state with fines and maybe even appoint receivers for parts of the program, wresting control from the state.

Abbott's more aggressive defense strategy will be on display as private attorney Allyson N. Ho of Dallas seeks to show Jack's monitors are in error.

In recent filings, Ho has said the state has made steady progress, making any contempt finding unwarranted.

Twice before, Jack has held the state in contempt of court. In late 2019, she fined it $150,000 for failing to ensure that privately operated group homes and cottages with multiple foster children had an adult employee staying awake at night to supervise the state's charges and prevent violence and sexual abuse.

A year later, Jack threatened fines of $75,000 a day, but didn't impose them.

This year, Jack, who originally sat in Corpus Christi but has taken senior status and lives in Dallas, has revived talk of fines and sanctions against the state.

Jack was especially upset over "children without placement," youth whom state contractors won't accept and who are supervised 24/7 by CPS caseworkers in hotels, churches and other makeshift facilities. In Marble Falls and Killeen, teenage girls escaped, only to end up in the company of adult men, amid fears by Jack's monitors they were at risk of sexual assault.

The toll that repeated "child watch" shifts take on CPS workers is one reason plaintiffs' lawyers are asking Texas be sanctioned. Others include failure to properly administer and monitor powerful mental health drugs, train caregivers in how to identify sexual abuse and educate foster children on how to report maltreatment.

A late-breaking issue was the monitors' discovery that an obscure arm of the Health and Human Services Commission, called Provider Investigations, was in their eyes failing to protect foster children who are intellectually or developmentally delayed. A provider from Grand Prairie was subpoenaed to testify this week.

The hearing, expected to last several days, comes as the lawsuit, filed in 2011, continues to vex Abbott, a three-term GOP governor, and the Republican-controlled Legislature.

Lawmakers have been forced to increase funding of the Department of Family and Protective Services, which basically serves as parents for about 8,000 children in the state's "permanent managing conservatorship," and of the Health and Human Services Commission, which regulates foster-care providers.

Jack previously had ruled that children too often linger for years in unconstitutionally unsafe foster care, to wind up in the criminal justice system or homeless after they turn 18. Kids regularly emerged from the system in worse shape than when they entered, she found.

Children were being "shuttled throughout a system where rape, abuse, psychotropic medication and instability are the norm," Jack ruled in 2015.

Dozens of states and counties, in states where child welfare is a county responsibility, have been sued by Children's Rights, whose founder, Marcia Robinson Lowry, devised the legal strategy of using the 14th Amendment to the U.S. Constitution to prohibit "warehousing" of youth in unsafe conditions.

In some instances, the defendant state and local governments have remained under court scrutiny for decades.

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