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U.S. District Judge Janis Graham Jack berated Texas officials for how the state regulates facilities housing foster kids at a Tuesday court hearing in a yearslong lawsuit against the state.
Jack on Tuesday said the Health and Human Services Commission — the regulatory body for foster care facilities — has prematurely removed facilities from what’s called heightened monitoring and inadequately investigated violations.
Under heightened monitoring, HHSC increases oversight and tracking of facilities after a pattern of conduct and safety violations. In 2022, 21 facilities were discharged from 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.
Jack first ruled in 2015 that Texas had violated the constitutional rights of foster children to be free from an unreasonable risk of harm, saying that children "often age out of care more damaged than when they entered."
She followed her ruling with orders for the foster care agency, which the state challenged and the 5th U.S. Circuit Court of Appeals partially upheld. Among the orders that were upheld: The state must increase oversight of residential facilities that house kids, speed up state investigations into abuse and neglect in foster homes, and build software to alert caregivers about child-on-child sexual aggression.
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.
The state in May swapped in three high-profile appellate attorneys to come to its defense. Allyson N. Ho, a conservative star in her own right, is married to a sitting judge on the 5th U.S. Circuit Court of Appeals — the very court that will rule if the state again challenges any of Jack’s orders. The state also hired two other lawyers that have clerked for other sitting judges on that appellate court. The Tuesday hearing was the attorneys’ first appearance.
On the other side, lawyers representing the children asked the judge to hold the state in contempt of court for placing children in unlicensed facilities, mismanaging psychotropic drugs and failing to inform kids how to report abuse and neglect. Jack won’t make a decision on a potential contempt finding for another three months. But she has held the state in contempt of court twice before — first in November 2019 and later in September 2020. In 2019, she also fined the state $50,000 a day for three days. And on Tuesday, she threatened to fine the state again.
“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 Tuesday hearing centered around the latest report from court-appointed watchdogs, which raised concerns about the state's regulatory practices with licensed foster facilities. Children that are placed in facilities under heightened monitoring are in "the riskiest of the risky operations within the system," Paul Yetter, an attorney representing the children, said.
The federal judge on Tuesday suggested the state has been too quick to relieve some facilities from heightened monitoring. Court-appointed watchdogs reported child safety violations within six months of a facility being discharged. At Ascension Child and Family Services, in Houston, cockroaches and rats were reported 15 days before a facility came out from heightened monitoring. And for 73% of facilities relieved from heightened monitoring, state investigations of child abuse, neglect or exploitation closed after they exited heightened monitoring, the watchdogs reported.
Jack, along with the court watchdogs, also questioned how a state determines risk during investigations into licensed facilities. The level of risk impacts the extent of the investigation and the pace the investigation is completed. When a 12-year-old at A New Day Foundation found a BB gun in the closet, the state determined the risk was minor. The state admitted on Tuesday that the risk was major.
The court watchdogs did credit the state for its efforts to prevent child-on-child sexual aggression. They also identified a 27.6% decrease in the number of kids in long term care of the state — from about 12,700 children in December 2019 to about 9,200 children in December 2022.
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