Texas Foster Care System Facing Reform

From Patricia Kilday Hart at the Houston Chronicle:

In a 107-page opinion citing deficiencies in the Texas foster care system, a Corpus Christi federal judge this week paved the way forward for a classaction challenge to the state’s system of caring for abused and neglected children.

Judge Janis Jack, of the U.S. Southern District, certified a class of children in state care whose attorneys hope to prove have been harmed by the state’s policies and practices for managing children who have been taken into custody from abusive or neglectful families.

It is the second time Jack has made such a ruling in the case. The 5th U.S. Circuit Court of Appeals, citing a U.S. Supreme Court case tightening rules for class-action lawsuits, vacated a similar ruling in 2011. On Tuesday, Jack said the plaintiffs met the new standards for classaction lawsuits, and the lawsuit can proceed.

“This decision has life-changing significance for the vulnerable children in Texas foster care, and for the law,” said Marcia Robinson Lowry, executive director of Children’s Rights, one of the plaintiffs in the lawsuit. “The judge has laid out what is necessary to proceed on behalf of all children. … She has found that the evidence presented concerning problems in Texas foster care is sufficient for us to proceed as a class action.”

Spokesmen for Texas Department of Family and Protective Services and the attorney general’s office had no comment on the ruling.

The lawsuit on behalf of some 12,000 children in permanent foster care in Texas claims the state has violated their constitutional rights by not providing adequate oversight, specifically because it fails to employ sufficient caseworkers to ensure their safety and well-being.

In a written statement, the plaintiffs’ attorneys said they will prove that “the state fails to monitor children’s safety, putting them in understaffed group homes and unlicensed homes of relatives who are not given the same training or support as foster parents or inappropriately placing them in congregate care when they could be properly served in a more familylike setting. … These deficiencies lead to damaging consequences, including high rates of maltreatment, frequent and repeated moves between placements, and unnecessary separation of children from their siblings and communities.”

In her ruling, Jack wrote, “There is ample evidence that caseworkers are overburdened, that this might pose risks to the children in the PMC, and that … state officials had actual or constructive knowledge of these risks and have not acted to cap or otherwise limit caseloads.”

The judge also cited the turnover rate for Department of Family and Protective Services employees, which she said had “ranged from 23.6% in fiscal year 2009, to a staggering 34.1% in fiscal year 2007. In fiscal year 2012, the latest data presented to the Court, DFPS caseworkers had a turnover rate of just over 24%.”

Jack said the turnover guarantees poor results for foster children, citing the case of one girl who has had 12 different caseworkers assigned to her.

Further, she said, she found a link between caseworkers’ workloads and the safety of children in foster case. “Caseworkers are, in effect, these children’s fire alarms. They are the first and best mechanism to ensure the class members’ safety, i.e., to ensure that the child is not suffering any harm or abuses. A case worker that is so overburdened that she cannot visit the children she is responsible for to keep apprised of their well-being, or if she cannot build enough of a rapport to do so effectively, cannot fulfill this function.”

Her ruling cites stories of children who have spent years bouncing between multiple foster homes, including an 11-year-old boy from Houston who was taken from his drug-addicted mother in 2007 and lived in four foster homes, including one in which he suffered sexual abuse. He also spent time in psychiatric hospitals before his adoption in late 2012.

In another, a San Antonio boy taken from his mother in 2009 has endured multiple placements, including hospitals and emergency shelters where he was overmedicated. He now is in a residential treatment facility some 300 miles away from San Antonio, according to the lawsuit.

This is a groundbreaking opinion. It is a giant first step in protecting the foster care children of Texas for Judge Jack to certify the plaintiffs as a class. Tennessee was able to completely reform their system after a settlement was reached in a similar case and hopefully Texas will be able to do the same. ChildrensRights.org is a nationwide non-profit that is pushing for reformation of the foster care system in several states. Learn more about ChildrensRights.org and what they are doing to help. Read the opinion here.

Photo courtesy of ChildrensRights.org.

Allison Arterberry

About Allison Arterberry

Allison Arterberry is a third year student at the University of Houston Law Center. She graduated from Texas A&M University in 2011 with a B.A. in Political Science and Spanish. She has spent parts of her last two summers interning at the Equal Employment Opportunity Commission. Currently, she is a Senior Articles Editor for the Houston Journal of International Law, the Secretary for the Labor & Employment Law Society as well as a member of the Career Development Student Advisory Board and the Association of Women in Law. Additionally, last year she was the Secretary for Aggie Law Society. Allison is most interested in child victim’s rights in the criminal system.

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