U.S. District Judge Janis Graham Jack reprimanded Texas officials for not taking care of the facilities housing foster kids at a Tuesday hearing for a yearslong lawsuit. The lawsuit against the state is over a court case that found Texas’ foster care system unconstitutionally harms kids.
The state’s new defense team made their first appearance at Tuesday’s hearing. Where Jack said the Health and Human Services Commission, the regulatory body for foster care facilities, has been prematurely removing facilities from heightened monitoring and poorly investigated violations.
After a pattern of conduct and safety violations, HHSC increased oversight and tracking of facilities but in 2021, 21 facilities were taken off of heightened monitoring.
“It takes such a callous mind and a callous operation to interpret the heightened monitoring standards to take these facilities off when the children are still at risk,” Jack said.
In 2015, Jack ruled that Texas violated the constitutional right, of being free from an unreasonable risk of harm, of the kids in the state’s foster care system, saying that the children “often age out of care more damaged than when they entered.”
The ruling was followed by orders for the foster care agency. The state challenged these orders which the 5th U.S. Circuit Court of Appeals partly upheld.
The orders that were upheld included, the state being required to increase oversight at residential facilities that house foster kids, increase the speed at which state investigates abuse and neglect at foster homes and build a software system that would alert caregivers about child-on-child sexual aggression, according to the Texas Tribune.
The state had been taking a more cooperative approach to the lawsuit since 2019 but in recent months, the state appears to be preparing to escalate the yearslong legal fight.
Since 2019, the state had been taking a cooperative approach to the lawsuit, however, now the state looks like it’s ready to fight the yearslong legal case.
In May, the state appointed three high-profile appellate attorneys to its defense.
One of them is Allyson N. Ho, who is married to a sitting judge on the 5th U.S. Circuit Court of Appeals. The court which will preside over the case if the state challenges any of Jack’s orders.
The two other lawyers on the case, hired by the state, have clerked for other sitting judges on the same appellate court.
The lawyers representing the children have asked Jack to hold the state in contempt of court for placing children at unlicensed facilities, mismanaging psychotropic drugs and its failure to inform kids on how to report abuse and neglect, according to the Texas Tribune.
Jack will not decide whether to charge the state with a potential contempt charge for another three months.
In Nov. 2019 and Sept. 2020, the federal judge held the state in contempt of court. In 2019, she also fined the state $50,000 per day for three days and on Tuesday, she threatened to fine them again, according to the Texas Tribune.
“I just cannot understand this foot dragging,” Jack said. “When are you all going to actually turn the corner and say, we’re going to actually do something for these children?”
The hearing on Tuesday concentrated on the latest report from the court-appointed watch dogs. The reports raised apprehension about the state’s regulatory practices with licensed foster facilities.
According to the Texas Tribune, an attorney representing the children said that the kids being placed in facilities that are under heightened monitoring are in the “the riskiest of the risky operations within the system.”
After court-appointed watch dogs reported multiple child safety violations within six months of a facility released from heightened monitoring. On Tuesday, the federal judge pointed out that the state had heedlessly removed some facilities from heightened monitoring.
In Houston, at Ascension Child and Family Services, 15 days before the facility was let out from the heighted monitoring, cockroaches and rats were reported there.
Watchdogs reported that open investigations on cases of child abuse, neglect or exploitation were closed in 73% of the facilities who used to be under heightened monitoring.
In addition to that, Jack, with the court watchdogs, questioned how the state determines the risk levels during an investigation into licensed facilities. The extent of the investigation and its pace is affected by the level of risk.
According to the Texas Tribune, the state had determined the risk was minor when a 12-year-old found a BB gun in a closet at A New Day Foundation. On Tuesday the state admitted that the risk was major. The court watchdogs recognized that the number of kids in long term foster care had fallen about 27.6%, to 9,200 children in December 2022 from about 12,700 children in December 2019. They also credited the state for its efforts to prevent child-on-child sexual aggression, according to the Texas Tribune.