Federal appeals court finds Texas foster kids were endangered — but strikes down some attempts at reform

The John Minor Wisdom United States 5th Court of Appeals building in New Orleans, Louisiana, on Oct. 3, 2017.
The John Minor Wisdom United States 5th Court of Appeals building in New Orleans, Louisiana, on Oct. 3, 2017.
Jolie McCullough / The Texas Tribune

A federal appeals court on Thursday once again confirmed what advocates and lower courts have said for years: There are major, troubling flaws in Texas’ child welfare system. But the judges also struck many specific remedies that a lower court had proposed to target those problems.

In January, in another chapter of the long-running lawsuit launched in 2011, U.S. District Judge Janis Jack ordered the state’s Department of Family and Protective Services to overhaul its “broken system” and report back on its progress. Texas Attorney General Ken Paxton immediately appealed, calling the specific fixes Jack ordered “incomplete and impractical.”

In this week’s 103-page ruling, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals affirmed several of Jack’s basic points — ordering that Texas must decrease caseloads for overburdened workers and shore up its system of monitoring foster care placements for safety.

Judge Edith Clement wrote that “the state is deliberately indifferent to the risks posed by its policies and practices toward caseload management” and “aware of the systemic deficiencies plaguing its monitoring and oversight practices.”

Paul Yetter, a Houston attorney representing the foster youth, called the ruling a “huge victory for Texas children.”

“Judge Jack and the 5th Circuit have now said that the state has to fix its major problem with caseloads,” Yetter said. “The key thing here though is that children have case workers that can keep them safe … That’s the core safeguard.”

But the appeals court also pulled back many of Jack’s farthest-reaching measures, ruling some of her January order “goes well beyond what is necessary to achieve constitutional compliance.” For example, the court struck down a ban on placing foster in large group homes. It also overruled orders intended to give kids access to social programs for transitioning out of care. The move gives state officials room to delay or avoid fixes advocates consider critical.

“While the program still faces challenges, the Fifth Circuit upheld significant parts of the program as constitutional while finding that the district court engaged in judicial overreach in entering an overbroad and impractical injunction,” said Kayleigh Lovvorn, a spokeswoman for the Texas Attorney General’s Office.

Lovvorn did not immediately say whether the state would appeal the decision.

The appeals court appeared largely sympathetic to the idea that foster kids are often subjected to abuse — but it had a higher bar than Jack’s ruling did for what amounted to a violation of a child’s rights. So while the kinds of foster homes and facilities where kids are placed may at times be “suboptimal,” the judges wrote that Jack’s broad order was in many ways unworkable.

The court struck down a number of specific reforms laid out by Jack. Those include:

  • A requirement that workers who check up on long-term foster kids have caseloads of no more than 17 children

  • A requirement that supervisors at the Texas Department of Family and Protective Services oversee no more than seven caseworkers

  • A requirement that foster kids’ case files include a photograph that is current as of one year

  • A requirement that long-term foster kids receive a copy of their birth certificate and Social Security card when they turn 16

  • A requirement that the child welfare agency make sure that long-term foster kids can get into driver’s education classes once a child is old enough to get a learner’s permit

The court also disputed Jack’s findings that foster group homes, a unique kind of placement that houses seven to 12 children who are not necessarily related, presented an undue risk of harm to foster children. The lower court initially banned DFPS from placing children in foster group homes unless they had 24-hour supervision, finding that children’s risk of neglect or abuse in those settings was so great, it violated their constitutional rights.

The appeals court found that Jack’s analysis of group homes’ risks was “flawed.” Foster group homes, the judges wrote, are a “critical placement option for large sibling groups,” and pointed out that other states successfully place children in group homes without violating their civil rights. And it credited the state’s child welfare agency and the Texas Legislature for ordering changes over the lawsuit’s seven-year tenure.

That was a win for the state, which has argued that a federal judge should not have the broad authority to tell a state agency how to do its job. Paxton has long characterized the lawsuit as a fight over states’ rights, criticizing Jack as an “unelected” judge. Jack and her court-ordered reform advocates “acted outside of their legal authority and ordered a plan that is both incomplete and impractical,” Paxton said of the lawsuit earlier this year.



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