Updated at 5:07 p.m.: to include Gov. Greg Abbott’s comments.
AUSTIN — Texas callously subjects children who’ve already suffered abuse and neglect to “unreasonable risk of serious harm” in a long-term foster care system that’s fragmented and poorly run, two court-appointed monitors said in their first comprehensive report to a federal judge Tuesday.
While Texas claims it’s come close to complying with the judge’s remedial orders, and state GOP leaders say they’ve increased funding in recent years, monitors Deborah Fowler and Kevin Ryan debunked suggestions that there have been massive improvements.
Texas still runs “a disjointed and dangerous child protection system,” in which “harm to children is at critical times overlooked, ignored or forgotten,” they wrote in a 363-page report, with numerous attachments, to U.S. District Judge Janis Graham Jack.
“Callers to the state’s hotline, by the thousands, abandon their efforts after waiting for someone to answer their calls,” the monitors said.
“The state’s oversight of children’s placements is in numerous instances lethargic and ineffective. Operations with long, troubled histories of standards violations and child abuse allegations remain open and are permitted to care for vulnerable children, some of whom are then hurt. The prevalence of physical restraints and injuries to children in some facilities is simply shocking, as are the numerous instances where [state protective services] staff document that the agency does not know where children are placed.”
Gov. Greg Abbott, a defendant in the suit, and his co-defendants who run the Department of Family and Protective Services and the Health and Human Services Commission, did not directly respond to the report Tuesday.
At a coronavirus news conference, Abbott said he hadn’t read it but stressed that in the 2017 legislative session, he in “unprecedented fashion” made foster care an emergency item.
“The Legislature took me up on that,” he recalled. “They did respond very robustly -- again, way more powerfully than any Legislature ever had, devoting billions of dollars to make sure that children will be better taken care of.”
He noted the monitors “are being paid themselves for the product they issued today” -- a reference to how Fowler and Ryan have a staff of about 30 employees or consultants and were paid $3.2 million between July 31, when the 5th U.S. Circuit Court of Appeals’ final order took effect and late February.
Attorney General Ken Paxton, who followed Abbott as the state’s top lawyers and adamantly fought the suit, has criticized Jack for infringing on state sovereignty and complained of “exorbitant fees – up to millions of dollars annually – paid to the court-selected monitors.”
On Tuesday, though, Paxton spokeswoman Kayleigh Date declined to react to their findings.
“As attorneys representing the parties in this case, we are unable to comment on the substance of a pending matter, other than to refer you to the pleadings on file,” she said in an email.
Jack, who’s presided over the class-action lawsuit for more than nine years, has said she’d let the state respond to Fowler and Ryan’s report at a hearing this summer, probably in Dallas.
The report depicts a shoddy set of arrangements for the nearly 11,000 children who at any given time are in the state’s “permanent managing conservatorship.” Generally, the children were removed from their birth families a year or more earlier. Odds are slim they’ll return home.
From February through May, three Texas children died in foster care in circumstances the monitors found troubling, replete with “missed opportunities by the Texas child welfare system to protect the children.”
As The Dallas Morning News reported in late February, a 14-year-old girl at the Prairie Harbor Residential Treatment Center in Wallis collapsed and died from a pulmonary embolism.
The embolism was associated with a deep vein thrombosis in the right calf of “K.C.,” an obese child taking three psychotropic medications, the monitors wrote.
They questioned not only why Prairie Harbor staff took 37 minutes to call 911 but why Residential Child Care Investigations – or RCCI, the department’s unit that looks into maltreatment of foster children – “appears poised to discount” statements by seven other children that K.C. complained repeatedly of leg pain in the previous two or three weeks.
The provider’s staff also documented the girl’s complaint, the monitors said. Still, Prairie Harbor failed to get her to a doctor, they said.
Prairie Harbor co-owner Rich DuBroc, reached by phone Tuesday, said he wanted to read the report before commenting. Later, he emailed The News, saying, “I have no comment at this time.”
Fowler, head of Austin-based Texas Appleseed, and Ryan, a former New Jersey child welfare official, noted troubling deficiencies by RCCI in “downgrading” the urgency of four calls to the state’s child-abuse hotline in late March and early April concerning the welfare of three-year-old foster child “A.B.”
He died on April 12 after being found on the floor unconscious, with blood coming out of his ear, at the home of his and a sibling’s “fictive kin provider,” which can be a godparent or other close friend of the children’s birth family. The monitors did not specify where A.B. came from or was placed.
But it said RCCI downgraded the hotline calls from Priority 1 to Priority 2, ignored warnings from staff at A.B.’s daycare and made a crucial error in not seeking a face-to-face interview with the boy.
Of a sample of 174 reports that RCCI downgraded from investigation to no investigation, monitors determined that 33% were inappropriately downgraded.
As of April 5, the unit had a backlog of more than 500 cases that were “delinquent,” meaning they’d been open for 45 or more days, Fowler and Ryan wrote.
“Memories fade, witnesses disappear and records go missing,” the monitors said of tips about possible maltreatment of foster children. “As a result, the state then ‘rules out’ allegations time and again, not because children have not been abused or neglected, but because of the state’s own negligence in its investigative responsibilities.”
Of a sample of 122 investigations where RCCI ruled out all allegations, monitors identified 28.7% that had substantial deficiencies or were inappropriately resolved.
The third recent foster child to die in questionable circumstances, the suicide of 14-year-old “C.G.” on April 26, illustrates Texas’ frequently poor decisions in placing foster children and its lax enforcement against the private providers who take most of the kids, the monitors wrote.
After seven years in foster care, C.G. was discharged on March 4 from a psychiatric hospital – the monitors don’t say where – and sent to The Williams House Emergency Shelter in Lometa in Central Texas. Though her safety plan required her to be “monitored by staff at all times,” video monitors showed that on the night she died she entered a bathroom by herself and was left alone for 30 minutes. A staff member opened the door and found she’d hung herself, Fowler and Ryan wrote.
Lampasas County is so remote, C.G. hadn’t been seen by a clinical social worker for 24 days. Her only meeting with a psychiatrist while at the shelter was conducted virtually.
“The decision to place a child with significant mental health needs, with a recent history of repeated hospitalizations related to self-harm and suicide attempts, in a shelter in rural Texas, was an affirmative act by [the department] that placed C.G. at an unreasonable risk of serious harm,” Fowler and Ryan wrote.
The Williams House also had been written up repeatedly for violating the state’s “minimum standards” for operating foster homes or congregate-care facilities in a way that keeps children safe and healthy, the monitors said. Using a methodology to rank the seriousness and quantity of minimum standards “deficiencies” cited in the past 5 ½ years, Fowler and Ryan said the Lometa shelter had the third highest rate of violations ranked “high” or “medium” in severity among 356 licensed “general residential operations.”
Williams House administrator Sandra Lockett did not immediately respond to a request for comment.
Despite finding a very high number of violations among licensed operations, the state rarely applied any meaningful enforcement and oversight beyond a monetary penalty, they said.
Between Sept. 30, 2014 and March 31 of this year, the Residential Child Care Licensing unit at the Health and Human Services Commission issued more than 30,000 citations for minimum standards violations but “placed only 20 operations on probation [and] suspended a license only once,” the monitors said.
The databases at the protective services department and the commission’s licensing unit not only don’t talk to each other, it’s clear that state officials are “not in the habit” of trying to cull available records to find bad providers, Ryan and Fowler said.
“The state’s bifurcated approach to oversight of children’s placements … has created a disjointed, inefficient system in which gaps between the two conspire to create risk of harm,” they said.
Other red flags the monitors raised:
· Caseloads remain high, despite a December agreement between the state and plaintiffs’ lawyers to set guidelines for how much work is assigned to three categories of state workers who touch foster children’s lives. Only 49% of Child Protective Services conservatorship caseworkers fall within the guideline of overseeing between 14 and 17 children each.
· Only 42% of children they interviewed knew there is a “bill of rights” for foster children, and while 60% knew about the state’s child-abuse hotline, “most indicated they are unable to make calls twenty-four-hours a day and free from observation.”
· In 23% of cases reviewed, CPS conservatorship workers were not notified when one of the children assigned to them was the subject of an investigation the hotline had passed on to RCCI. In another 27% of cases, the worker wasn’t told of the referral for more than 72 hours. Also, only about half of caregivers were notified that a child in their custody has a history of sexual aggression or as a victim of sexual abuse.
