Judge: Sexual assault, death of teens in foster care shows Texas still needs to do more - The Dallas Morning News

AUSTIN — A federal judge again is threatening to hold Texas in contempt of court for not bringing its system of long-term foster care up to par.

At a Dallas hearing on Thursday, U.S. District Judge Janis Graham Jack said she’s especially upset over bad things happening to the children who are being tended around the clock by Child Protective Services workers in offices, motels and church-owned buildings.

The youngsters are in makeshift settings because no provider will take them.

Jack cited harrowing stories from her monitors’ fifth report, including a 13-year-old girl who was a confirmed victim of sex trafficking. Despite orders for the girl to be kept in “line of sight” at all times, she escaped through a window from a building in Marble Falls in Central Texas, the report said. A religious group let CPS use the facility for “children without placements,” kown as CWOPs.

A man took her to a motel and sexually assaulted her, the girl told law enforcement, according to media accounts. She’d run away from the facility with a 16-year-old foster girl.

The case of the 13-year-old, now more than four months pregnant, “illustrates the difficulty caregivers experience in this [unlicensed] setting appropriately supervising a child who needs therapeutic services in a licensed, needs-based placement,” monitors Deborah Fowler and Kevin Ryan wrote.

In another example, Jack decried the fate of “A.W.,” a 17-year-old boy in the state’s care who died from gun violence in Killeen last March.

The boy, who’d previously been in a “kinship home” and an emergency shelter, was staying in a CPS office. He talked his male caseworker into letting him go play basketball with a friend and then go to a movie, staying in touch by cellphone with the CPS employee. The worker didn’t even know the apartment unit number of the boy’s friend, according to the monitors’ report.

A.W. ran away and, a week later, was shot to death.

The worker “did not follow the processes and procedures that we have in place” and was fired, testified Erica Bañuelos, associate commissioner for CPS at the Department of Family and Protective Services.

Jack, an appointee of former President Bill Clinton who is on senior status, has presided over the suit brought by two nonprofit child advocacy groups in New York for nearly a dozen years.

Among many failings of the state she said she may invoke as reasons for heavy fines, Jack cited Texas’ inability to stop tending its most troubled foster kids in state offices and makeshift settings.

In the first 11 months of 2022, on average, “60 children were without placement on a given night, with a maximum of 81 children,” which happened June 22, according to the past week’s second filing by the monitors.

“These children without placements are unsafe, as witnessed by two of them last year, they got shot to death, murdered while in their classification of children without placements,” Jack said.

“And another one ran off that was supposed to be ‘in sight,’ whatever that means. They’re supposed to be supervised with clear sight – and [she] wasn’t and came back being raped and pregnant. So these are not safe placements.”

On Thursday, Jack welcomed new leadership at the protective services department, which is a co-defendant in the case with Gov. Greg Abbott and the Health and Human Services Commission. Jack also praised commissioners Stephanie Muth and Cecile Young, respectively, for improving interagency cooperation as the state grinds through dozens of remedial orders it’s been under since 2015.

In the first six months of last year, the protective services department and its private “community based care” lead contractors got foster kids’ caseworkers’ workloads down to at or below 17 youths per worker 85% of the time – a new high, the monitors found.

The quality of investigations of outcries by foster children also improved, they said.

“Excellent work,” Jack exulted. “While you’re being slapped around, I want to give credit where it’s due.”

But Jack ticked off shortcomings that ranged from 5-minute holds for callers into the child abuse hotline to slow ramp-up of investigations of foster children’s outcries of maltreatment – even ones deemed serious or “Priority 1.” Half of children are unaware that the hotline even exists, much less that the department has an ombudsman whose job it is to protect them, monitors said.

A year ago, three national child welfare experts advised Texas it could only reduce and eventually eliminate its CWOP problem by providing more mental health services to at-risk families and leaning into greater use of “kinship care,” in which a relative or family friend takes in kids after their birth parents come under suspicion of maltreating their youngsters.

On Thursday, Jack complained Texas has been slow to grab federal pots of money that could help improve low-income Texan’s access to mental health care and substance abuse treatment.

She also quizzed state officials on why they don’t pair more kids with grandparents and other relatives and familiar faces, by paying more for kinship care.

Currently, the state pays kinship caregivers $12.67 per child per day, which isn’t even half of what it pays foster parents to care for “basic” kids – those with the least serious problems.

Sen. Royce West, a Dallas Democrat who has championed greater use of kinship care, said in an interview that he had to pressure the protective services department to increase rates last year by about a dollar or more per kid per day. The Senate’s introduced budget would take that up to $13.53 a day, but that’s still woefully inadequate, West said.

“One of my top legislative priorities this session is to bring parity [with licensed foster families’ reimbursements,] so we can have better outcomes for kids,” he said. “We have better outcomes in kinship care than with the foster care program.”

In 2015, the judge found Texas liable for running an unconstitutionally unsafe system. Far too many of the children bounce from placement to placement, and emerge from long-term foster care after they turn 18 with severe emotional and psychological problems.

Some but not all of Jack’s subsequent injunctions demanding improvements survived appeals by the state. As of June 30, 2022, there were 10,124 children in the state’s “permanent managing conservatorship.” That means they weren’t reunited with their birth families in the year or so after CPS removed them – and weren’t quickly adopted, either.

In late 2019, she briefly hit Texas with fines of $50,000 a day but suspended them after three days. Last June, she warned she might slap the state with even larger monetary penalties. They’d be sizable enough that Texas, even though the case is a civil suit, could invoke a criminal defendant’s right to a jury trial, she said then.

On Thursday, Jack seemed to admonish lawyers for the plaintiff children for failing to ask her to hold the state in contempt.

Speaking of the children sleeping in CPS offices and hotels, the judge said of state officials, “They’re already violating the injunction, which is why I’m talking about contempt at the next hearing.”

But plaintiffs haven’t filed a motion, Jack said.

To Marcia Robinson Lowry, a former ACLU lawyer in New York who decades ago came up with the idea of filing class-action suits to prod child welfare systems to improve, Jack said:

“I can’t write it for you. … I was prepared today. None showed up.”

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