AUSTIN — A federal judge in the longstanding Texas foster care lawsuit said Monday she could impose such large fines on the state for not obeying orders that it could invoke the right of a defendant at a jury trial.
“I’m looking at substantial fines for contempt — enough so you know you’re entitled to a jury trial,” U.S. District Judge Janis Graham Jack told heads of two state departments and an attorney for the governor. Greg Abbott.
“I think the public would welcome a jury trial, based on several things that are going on. … It went on for quite a long time without action, without any corrective action on my part.
Jack did not specify the amount of the fines.
But the judge said she was fed up with broken promises of compliance by leaders of the Department of Family and Protective Services and the Health and Human Services Commission.
“From what I’ve read, the state is on edge with revenue,” she said.
In late 2019, Jack briefly hit Texas with fines of $50,000 a day, but suspended them after three days. This time, she’s apparently thinking of bigger monetary penalties.
A spokeswoman for Abbott did not respond to a request for comment. Department and commission spokespersons declined to comment, citing ongoing litigation.
For the Department of Protective Services, which is effectively the ‘parent’ of around 10,000 children in long-term foster care, Jack cited failures to avoid unsafe placements, adequately background check caregivers and prevent victims of sexual abuse from being raped again. .
For the commission, the sprawling health and welfare agency that licenses and inspects foster care providers, the judge cited the continued failure to include enough information about children in its computer system. She also accused the two agencies of being too lenient with providers who have languished on “enhanced monitoring” for more than a year without showing sufficient improvement.
“These are horrible things happening at these facilities and you’re giving them ‘damages’ or citations,” she said, referring to state contractual obligation offsets and notices of civil offense that she says inflicts minimal financial pain.
Threatening fines against the state, Jack said she plans to hold a hearing on whether to hold the two agencies in contempt of court relatively soon. However, she said no further compliance hearings were scheduled for the rest of the year. She offered no specific timeline.
After a few years of ordering a crackdown on shoddy foster care providers, Jack has focused on other systemic issues since January, when she convened an expert panel on “kids without placement”, the most troubled young people in foster care.
Jack is pushing for:
· Improvements to public mental health care services that could prevent children from having to be removed from their biological families in the first place;
· Progress towards electronic health records for foster children, the absence of which has irritated him for years;
· Interoperability between the computer systems of the two state agencies, to alert the most responsible adults in real time of potential problems, another of its pet peeves for many years; and
· A more aggressive stance by the Department of Protective Services to have children in their care vaccinated against COVID-19. Acknowledging that higher court orders and GOP leaders’ insistence on voluntary vaccination limit what she can accomplish, Jack said Monday she would keep pushing.
For more than a decade, Texas has been criticized for allegedly operating an unsafe foster care system for children who have been in the care of child protective services for more than a year. The class action lawsuit was brought by two New York-based nonprofits that have sued dozens of states and counties over issues in their child welfare systems over the past decades. Under Abbott, when he was attorney general, and Attorney General Ken Paxton, Texas pursued its prosecution more aggressively than any other jurisdiction, according to child protection experts.
On Monday, Jack, an appointee of former President Bill Clinton who took on senior status, lost his temper. The outburst came about 90 minutes after the start of one of its periodic hearings to review Texas’ compliance with its dozens of remedial orders.
Jack had just finished questioning state officials about the deaths of three foster children from gun violence in the last five months of last year; the drowning of an adopted 5-year-old boy last July; and the death of a 17-year-old adopted daughter 18 months ago from an overdose of acetaminophen while on the run from an unlicensed “fictitious parent” caregiver.
child sexual abuse
Turning to his monitors’ latest report, a 209-page compendium of alleged shortcomings, Jack spoke of the state’s slow progress in ensuring that all social workers and caregivers at private providers receive sexual abuse training. on children.
In 2015, the judge found Texas liable for running an unconstitutionally dangerous system. Some, but not all, of Jack’s later injunctions requiring improvements survived appeals from the state.
Like the other elements of its injunctions, Remedial Order 4 finally went into effect on July 31, 2019. Within 60 days, the Department of Protective Services “must ensure that all ‘conservation social workers’ in the CPS and child caregivers are trained to recognize and report sexual abuse, including child-to-child sexual abuse,” he said.
For years, Jack and his monitors Deborah Fowler and Kevin Ryan boiled with frustration that the department couldn’t produce a comprehensive list of the nearly 44,000 caregivers who care for abused and neglected children. He also couldn’t tell if they had all received the training.
“Social workers had a high level of compliance,” Jack said. But due to “data flaws,” the monitors can’t speak to employees of child placement agencies and general residential operations, she said.
In their latest report, the trainers said they had reviewed the files of 55 staff members during four on-site visits, and 28% lacked documentation to prove they had taken the training.
Erica Bañuelos, director of field operations at CPS, noted that in January the department launched a “vendor portal” through which an online training course could be taken.
“The monitors will be able to get better validation of who took it and who didn’t,” she said. Nearly 7,000 caregivers still have not, she said.
Jack further emphasized the slow progress in protecting children from re-victimization.
When questioned, Family and Protective Services Commissioner Jaime Masters acknowledged “we still have work to do” to ensure carers, before placements are made, know the children’s history.
Less than half of records sampled for 656 children last year showed caregivers had signed to certify they had received ‘Schedule A’ forms, which describe the child’s history of sexual abuse or sexual assault , before the start of a placement, the monitors said.
“That’s not acceptable,” Jack said, his voice rising.
“Okay, your honor,” Masters replied.
The judge replied, “We have been talking for several years and at the end of this hearing, I will inform you that I expect to have a contempt hearing.”
The two agencies failed to follow more than half a dozen of her orders to improve foster care in Texas, she said.
Regarding the regulation of shoddy suppliers, Jack expressed his disappointment to both agencies. She noted that each had various carrots and sticks to use to incentivize vendors to improve their performance.
Agencies rarely invoke the sanctions, Jack said. The judge said she wanted to see more licenses suspended or revoked, and more contracts terminated, if suppliers proved reluctant.
For much of the past two years, suppliers and some of the groups that represent them have protested Jack’s orders on heightened surveillance as being over the top. Several GOP lawmakers have accused the lawsuit of causing some child placement agencies and congregate care facilities to stop taking children into foster care.
Jack, however, again defended his enhanced monitoring order, saying the latest report from his monitors showed the performance of several providers had improved significantly.
Jack conceded, however, that there needed to be less duplication of oversight by teams of state employees issuing sometimes conflicting directives.
Regarding the shortage of beds for the most troubled youth in the system, Jack said more than 50 foster children remain in care with out-of-state providers.
As of Friday, there were 88 children in foster care without placements – up from 65 in early April, Department of Protective Services spokesman Patrick Crimmins said.
Paul Yetter, lead attorney for the child plaintiffs, said federal money and other resources could be leveraged to reduce the need for out-of-state placements and children’s sleep in CPS offices.
“The state is dragging its feet to implement the vital recommendations made by the expert panel months ago,” he said.
Of Jack’s mention of a jury trial on contempt fines, Yetter said that “when the fines get big enough, it starts to look more like criminal contempt.” The state could invoke 6th Amendment protections, such as the right to a jury trial, he explained.