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Federal judge defends her efforts to clean up Texas’ foster care system amid complaints from providers

Hearing comes as the number of children sleeping in CPS offices spikes and providers feel stung by a triple whammy of the pandemic, low state reimbursements and tougher enforcement.

AUSTIN — A federal judge is defending her efforts to root out slipshod foster care operations in Texas, saying providers who blame her edicts for a current bed shortage are mistaken.

U.S. District Judge Janis Graham Jack said the “heightened monitoring” of caregivers that she’s ordered and her blocking of bad operators from getting new licenses and state contracts are wins for the 10,000 children in long-term foster care.

In heightened monitoring, as of last month, 78 foster home recruiting agencies and congregate-care facilities received tighter scrutiny. Of them, nine are under “phase one” monitoring and receive weekly visits from a team of state officials, according to a second annual report on Texas’ compliance that Jack’s monitors compiled.

“This is going in the right direction,” Jack said during a two-day compliance hearing held via Zoom. It wrapped up Thursday afternoon.

Referring to a federal appeals court’s decision that said her original proposed remedies went too far in trying to prescribe how near to their homes children had to be placed, by improving the “placement array” of beds, Jack said, “I’m not into array issues, I’m into safe placements.”

Quantity is state leaders’ problem to solve, she implied.

The two-day hearing came amid fast-moving events in Texas foster care at a time when the number of children sleeping in CPS offices has spiked and providers are complaining that between the COVID-19 pandemic, low state reimbursements and tougher enforcement, they’re finding federal contracts for immigrant children attractive.

Among the developments:

· Family Tapestry, the “community-based care” contractor in San Antonio, sent the Department of Family and Protective Services a notice it intends to terminate its contract within 60 days.

· Sen. Lois Kolkhorst, R-Brenham, and Rep. James Frank, R-Wichita Falls, sent a letter to Jaime Masters, the department’s commissioner, demanding a plan of action to alleviate the bed shortage and suggesting the department has been too reluctant to “give flexibility to its SSCC partners around the state.” (Single source continuum contractors run foster kids’ placements in a region.)

· The House’s version of the state budget grants the department’s exceptional-item requests of $88.7 million for complying with the lawsuit, including 312 new “conservatorship caseworkers,” 58 new residential child-care investigators and support staff, chief financial officer David Kinsey testified. The Senate’s budget would give $63 million for lawsuit efforts, 14 investigators and half of the requested caseworkers, he said. The Health and Human Services Commission sought $38 million and 152 new employees for lawsuit-related improvements to enforcement. In both chambers’ budgets, its wish would be almost entirely granted.

The department, commission and Gov. Greg Abbott are defendants in a decade-old, class-action lawsuit over foster care.

Jack bestowed honeyed compliments on Masters and Cecile Young, executive commissioner of the Health and Human Services Commission. The judge said her efforts to improve conditions have been hampered by frequent changes of leadership at state offices. Both agencies finally are making needed improvements, Jack said.

To Masters, she said, “Please don’t quit. You’re too good.”

She also praised Young and directed compliments to Abbott. Jack cited the Republican governor’s December directive asking both agency leaders to fully cooperate with the judge and her monitors.

‘Like a’ Charles Dickens novel

Jack, though, sternly chastised five executives of child-welfare nonprofits companies that are single source continuum contractors. Under a procurement change called “community-based care,” they hold exclusive contracts to manage the state’s foster children in specific geographic regions.

“I’m hearing reports that the SSCCs are complaining about the decrease in beds because of these placements being closed,” she said.

She defended her crackdown on shoddy operations, saying many were unsafe places that escaped state sanctions and scrutiny for years.

“It’s like a Dickensian placement, some of these,” she said. Jack recounted harsh application of physical restraints, beatings, sexual abuse and deaths of foster children.

“And I saw a picture of one with a plywood toilet in the corner of a room,” she said. The commission, whose Child Care Regulation unit licenses providers, “has admitted [that] they’ve not lost a single bed from a safe placement,” Jack said.

With evident displeasure, the judge interrogated Annette Rodriguez, chief executive of Family Tapestry’s parent, The Children’s Shelter in San Antonio.

Rodriguez is “lobbying aggressively” for state concessions and higher reimbursements, Jack said.

Defending Masters against an allegation Rodriguez has raised – and that found its way into the two GOP legislators’ letter – Jack said Child Protective Services hasn’t poached Family Tapestry’s placements. Actually, Family Tapestry has sent more of its children out of “catchment area,” as the regions in community-based care are dubbed, than CPS sent in, Jack said.

“You are running a dangerous, unsafe operation and now you want more money,” Jack told Rodriguez.

“Tell me what you have to say – other than you’re in a difficult place, which is clear,” the judge said.

Rodriguez replied, “Your honor, we share your concerns.” The executive alluded to explanations she made at a news conference last week about how her nonprofit had more experience with children under 14 years of age.

“We didn’t have the right model in place” for a now-closed emergency shelter, Rodriguez told the judge. It became “overwhelmed” when it began receiving older foster children with severe medical and psychological problems, she said.

A state child-care regulator said in a letter the center was “very chaotic.” Runaways, fights, incorrect handling of children’s medications and inappropriate sexual activity was common, according to records obtained by The Dallas Morning News.

Through a spokeswoman, Rodriguez has denied an inference in state emails – contained in a recent report by monitors on kids sleeping in offices – that Family Tapestry in February “was working with a local legislative office” to avoid being slapped with up to $10,000 of state fines for each alleged violation of its contract.

“We have always tried to keep legislators informed on what is happening,” said Anais Biera Miracle.

The “liquidated damages” being threatened by the Department of Family and Protective Services were mentioned as part of a larger update for Bexar County lawmakers on local foster care, the spokeswoman said.

High hopes for Fort Worth

Jack scolded Wayne Carson, leader of Fort Worth-based ACH Child and Family Services, which operates Our Community Our Kids, the community-based care vendor in the western part of the Dallas-Fort Worth region, for saying some recent state enforcement actions were “silly.” Carson made the comment to The News last week.

“We’re all looking to your facility, Mr. Carson, as the standard bearer of safe placements,” Jack said.

While praising the judge’s efforts, Carson called for nuanced state judgments.

“I just hope that we can tell the difference between a good agency that has a bad staff member or a bad home, and an agency that is completely doing a poor job,” he said.

Late last year, Jack found both state agencies in contempt of court for failing to heed 13 of her orders – and threatened fines against the commission. Since January, it and the department submitted sworn statements of compliance. The judge has held off on the fines.

On Thursday, Jack said she has no plan to impose sanctions.

“I’m more concerned with working through remedies,” she said. “The quicker we do that, the quicker this ends.”

Robert T. Garrett, Austin Bureau Chief. Bob has covered state government and politics for The Dallas Morning News since 2002. Earlier, he was a statehouse reporter for three newspapers, including the Dallas Times Herald. A fifth-generation Texan, Bob earned a bachelor’s degree from Harvard University. He covers Gov. Greg Abbott, the state budget and CPS and foster care.

rtgarrett@dallasnews.com /bob.garrett.39 @RobertTGarrett
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