AUSTIN — A federal judge on Friday found Texas in contempt of court — again — for continuing to expose thousands of children to “an unreasonable risk of serious harm” while they are in foster care.
U.S. District Judge Janis Graham Jack threatened to levy fines of $75,000 a day against the state Health and Human Services Commission, starting Jan. 3.
The fines can be averted, she said, if the commission, which regulates foster care providers, stops dragging its feet and assembles by then an electronic readout of each home or facility’s five-year history on maltreatment and corporal punishment.
Despite being ordered to provide its inspectors the tool more than a year ago, the commission didn’t modify its database to accommodate such historical information until Aug. 31, three days before a show-cause hearing, Jack noted.
“Children are left to languish and fend for themselves in placements with histories of abuse and neglect, yielding little trust in the system that is supposed to protect them,” Jack said in a 355-page opinion that in many sections seethed with indignation.
Jack also found the commission and two other state defendants, the Department of Family and Protective Services and Gov. Greg Abbott, in contempt on a dozen other of her 46 remedial orders in a nearly decade-old class-action lawsuit over the state’s long-term foster care system.
No monetary penalties for those findings will ensue, though, if the department and the Republican governor are able to show at a May 5 hearing in Corpus Christi that they have come into compliance on those 12 orders, she said.
“To avoid additional future sanctions as to these findings of contempt, Defendants must comply with each of these Remedial Orders in the timeframe described,” she wrote.
‘Poorly conducted investigations’
Spokesmen for Abbott did not respond to a request for comment. Patrick Crimmins, spokesman for the protective services department, declined to comment.
Christine Mann, spokeswoman for the commission, said in an email, “It wouldn’t be appropriate for us to comment on ongoing litigation.”
Houston lawyer Paul Yetter, who was the child plaintiffs’ lead attorney at a 2014 trial, lauded Jack’s action.
Her opinion underscored how the department’s Residential Child Care Investigations division did “poorly conducted investigations and astonishingly inappropriate screen outs” of allegations of maltreatment of foster kids, Yetter said in an email.
The suit was filed in March 2011 by Children’s Rights, a New York-based nonprofit legal advocacy group that has sued dozens of states and counties over their child welfare systems’ failings.
While most states have settled such suits, however, Texas fought it as an unwarranted infringement on states’ rights. While he was attorney general from the suit’s filing until 2015, Abbott failed to derail the suit. Jack’s intervention is unnecessary because the Legislature has increased funding for and made improvements to foster care, Abbott and current Attorney General Ken Paxton have argued.
Jack, who was appointed by then-President Bill Clinton, though, assailed the state for deficiencies in investigations of possible abuse and neglect of the more than 10,000 children in its care.
The two defendant agencies have failed to document children’s and providers’ histories, to notify CPS and private-agency social workers when a new abuse investigation is launched, and to bring down the caseloads of three categories of state workers to manageable levels, she wrote.
The system is fragmented, with two state agencies involved, as well as hundreds of private agencies that the state pays to care for the kids, Jack noted. And it fails to communicate internally to make sure children removed from their birth families because of abuse aren’t abused again, wrote the judge, who is on senior status.
“These combined failures have yielded a system in which [the protective services department’s] investigations of child abuse and neglect have not consistently taken into account the child’s safety needs and in which [the department’s] subsequent failure to review its own past abuse/neglect investigations at foster homes means that it continues to place children in problematic placements,” she said.
It’s the second time the state has been held in contempt.
Late last year, Jack slapped the state with $150,000 in fines for not ensuring there were nighttime watches of kids in all group settings.
At next spring’s hearing in Corpus Christi, Jack said, she’ll hear her monitors Kevin Ryan and Deborah Fowler assess Texas’ compliance and give the state defendants a chance to rebut.
‘Heightened monitoring’ the focus
Increasingly, the lawsuit is centering on foster care providers’ compliance with the protective services department’s contract and safety requirements. In the past year, per Jack’s orders, between 70 and 80 congregate care facilities, or “general residential operations,” have been placed on “heightened monitoring.” A team of state employees can be sent weekly to such treatment centers, shelters and cottage homes, which have been flagged through statistical assessment of recent abuse investigations and compliance with state minimum standards.
The standards are enforced by inspectors at the commission’s Residential Child Care Licensing arm — the one threatened with fines for not adding provider history information in its database so it’s available for review before inspections.
Justifying her threat of $75,000-a-day fines, Jack wrote that “the financial resources of Defendants are vast, as evidenced by the amount of money the State has been willing to appropriate toward funding this litigation.”
In discussing the need for provider history to be accessible during inspections, Jack recounted the deplorable conditions her monitors found at four congregate-care facilities, including the Hector Garza Residential Treatment Center in San Antonio.
Children were sleeping on mattresses on the floor and the center lacked enough nighttime staff, the monitors found.
Children described it to monitors as “worse than prison,” especially the Garza center staff’s use of physical force to restrain children. Only recently did state licensing officials conduct “triggered reviews” of overuse of restraints and issue a citation against Garza, the judge complained.
“The Court wonders if Hector Garza would have ever received this citation, if it had not been for the monitoring team’s visit, given the fact that, despite thousands of reports of restraints at the facility in the previous two years, [the licensing division] issued only a handful of citations during that time,” she wrote. Last spring, the state pulled its kids from the Garza center, which closed.
Jack declined to find the state in contempt for noncompliance with three orders relating to the flagging in computer case histories of whether children had a history of being sexually abused or sexually aggressive.
Though Jack called it “dubious” to believe that the protective services department is properly investigating sexual-abuse allegations, it’s at least “demonstrated sustained efforts” to make the information-technology changes she ordered, she said.
“Not enough information has been provided for the Court to reach a conclusion” that the department is out of compliance, she wrote.
