Updated at 9:20 a.m., Oct. 23, 2019: to include upcoming hearing in Dallas, judge’s request that the state provide cost estimates on computer-system improvements.
AUSTIN — Plaintiffs in a long-running legal battle over Texas foster care have asked a federal judge to hold the state in contempt of court, citing in a motion many “false statements” about nighttime watches of kids and a recent blown deadline for crafting a workload study.
The Department of Family and Protective Services has been “utterly contemptuous” of U.S. District Judge Janis Graham Jack’s orders, plaintiffs’ lawyers said in a motion filed Friday.
The motion asks the department, Gov. Greg Abbott and Health and Human Services chief Courtney Phillips to show cause for why Jack shouldn’t sanction them for the agency’s alleged stonewalling of her five-year quest to ensure that foster children in group settings are supervised by adults who remain awake all night.
Also at issue is the department’s alleged failure to meet the judge’s Sept. 28 deadline for proposing guidelines for a workload study that will be used to help determine how many youngsters a Child Protective Services conservatorship caseworker should supervise.
A department spokesman declined to comment Saturday. Spokesmen for Texas Attorney General Ken Paxton, who is managing the state’s legal defense, did not respond to a request for comment.
On Monday, Jack set a hearing in the case for Nov. 5 in Dallas.
In coming days, the state is expected to file replies to the plaintiffs’ request for punishment as well as their Oct. 11 request for $22.6 million in legal fees and costs.
Of the $22.6 million accrued since the case was filed in 2011, $6 million is what the two Texas firms working pro bono in the case — Haynes & Boone of Dallas and Yetter Coleman LLP of Houston — would have made if they were charging, the plaintiffs said.
Instead of being paid, the two firms and fellow plaintiffs’ lawyers want Jack to order the state to spend roughly the same amount on programs to help current and former foster kids. The programs would have to be approved by the special masters, Jack’s two court-appointed monitors in the case, plaintiffs proposed.
The state has spent at least $10 million fighting the lawsuit and “even asked for another $10 million from the Legislature for future litigation costs associated with this case,” plaintiffs wrote, arguing that their fees are reasonable.
In a surprise, Jack in her order scheduling the Dallas hearing asked the state to be prepared to discuss cost estimates for an integrated computer system -- one of the items in her original remedial order that was struck by an appellate-judge panel as overreaching. There is speculation Jack may want to apply the $6 million that would’ve gone to the private law firms toward a modern database that would make educational, family history and health care records of foster children instantaneously available to CPS caseworkers and others involved in setting a child’s care plan.
On Wednesday, plaintiffs’ lawyer Paul Yetter said he’d heard such speculation.
“The judge obviously thinks that an integrated system makes sense,” Yetter said in an email. As for why she asked for cost estimates the state used before the 5th U.S. Circuit Court of Appeals, “We don’t know,” he said.
Recent exchanges between state officials and special masters Kevin Ryan and Deborah Fowler apparently have been tense, court filings indicate.
They have included clashes over whether the state should be allowed to use John Fluke of the University of Colorado at Denver to craft workload studies for CPS workers and abuse investigators at the licensing division at the Health and Human Services Commission.
Plaintiffs’ lawyers Paul Yetter and Marcia Robinson Lowry said Fluke would be “biased” because he’s represented Texas CPS in at least two earlier child-welfare lawsuits. Plus, the state wasn’t required to nominate a consultant, it was supposed to have proposed metrics about geographic dispersion of children and cases’ complexity that would guide determination of appropriate caseloads, they argued.
On Friday, the state filed a proposal for conducting the studies — nearly three weeks late.
The state apparently tried to sidestep the need for studies by proposing loose caseload caps. But negotiations fell apart in late August, the plaintiffs’ show-cause motion said.
The nighttime supervision issue has been simmering since December 2015, when Jack found the state liable for subjecting children in long-term foster care to unsafe conditions.
On Friday, plaintiffs alleged that in an Oct. 9 conference call, under questioning by Jack, Assistant Attorney General Andrew Stephens acknowledged that some general residential operations and residential treatment centers have lacked all-night adult supervision. Previously, the state admitted to lacking it at only a few group homes.
Citing alleged “false statements” going back to a 2014 trial in Corpus Christi, plaintiffs wrote, “Few revelations in this case have been as shocking as this.”
Jack is likely to hold a formal hearing soon.
On Aug. 8, she reminded state lawyers that they “lost” the 8 1/2-year-old class-action suit. “For an indefinite period of time,” Jack noted, she’ll supervise the system, using the masters as her eyes and ears.
“The longer and stronger the state resists these court orders, the costlier it’s going to be for the state,” Jack said. “Any delays may clearly result in possible rape, other serious injury and death to these vulnerable children.”
