CASA Deep Dive: The Federal Foster Care Lawsuit

In this CASA Deep Dive, we’re looking into the federal foster care lawsuit – the long-running legal battle, the results, and what it means for Texas’ foster care system moving forward.

What’s the lawsuit about?

In 2011, nine children who had experience with Texas’ long-term foster care system (also known as Permanent Managing Conservatorship or PMC) brought a class action lawsuit against the state, alleging that the system failed to protect them from an unreasonable risk of harm. A trial commenced in 2014, and in 2015, U.S. District Court Judge Janis Jack ruled in favor of the children, finding the system unconstitutional.

In her scathing, 255-page ruling, Judge Jack referred to heartbreaking testimony from the children involved in the lawsuit. She reprimanded the state for running a system where “rape, abuse, psychotropic medication and instability are the norm,” and where children “almost uniformly leave state custody more damaged than when they entered.”

In summary, Judge Jack’s initial 2015 order did two things:

  1. Ordered all foster group homes that were operating without 24-hour adult supervision to be shut down, and
  2. Appointed two Special Masters – experts in child welfare – to work with the Department of Family & Protective Services (DFPS) to develop an implementation plan to address the issues raised in the case.

What were the overarching issues raised in the case that the court argued were compromising children’s safety?

Some of the main issues that the Special Masters were appointed to address with DFPS included:

Caseloads and turnover: Child Protective Services (CPS) caseworkers were often subject to unmanageably high caseloads, which meant they could not adequately give individual children the attention and protection they needed. High caseloads and stress, paired with low pay, also contributed to high turnover rates.

Foster care capacity and services: Children in foster care are meant to be placed in the least-restrictive, most-family-like setting possible. However, CPS sometimes has to place children with higher needs in congregate care facilities like foster group homes or Residential Treatment Centers. These kinds of facilities are highly restrictive and meant to be a short-term, last resort for children with significant physical or behavioral health needs. The court found that children were staying in these settings for long periods, sometimes years. Children in these facilities are at higher risk of additional abuse or neglect than children in single-family foster homes.

It was also found that children were sleeping in CPS offices due to a lack of foster homes and other placement capacity.

Administrative and investigative issues: The court case highlighted examples of DFPS failing to adequately address serious violations of minimum safety standards and allegations of abuse and neglect in licensed foster care facilities. It also drew attention to efficiency issues with DFPS paperwork, the case management system (IMPACT) and more. DFPS had also not been tracking instances of child-on-child abuse.

What happened after Judge Jack’s initial order?

In short, years of back-and-forth between the court and the state. Read on for a timeline of events.

In November 2016, the Special Masters Judge Jack appointed released their 13-page report with 50+ recommendations for improvements to the Texas foster care system. Just a few days later, the state responded to the report, releasing objections to every single recommendation, due in no small part to the fact that state leadership and the legislature were already taking significant action to improve the system.

In December 2016, lawmakers approved a substantial pay raise and staffing increase for CPS caseworkers. Gov. Greg Abbott also named child protection system reform his top emergency item for the 2017 Legislative Session.

In January 2017, Judge Jack issued an interim order acknowledging the state’s work to improve aspects of the system and directing the Special Masters to continue working with DFPS to flesh out fixes. The interim order also reminded the state that the case technically only deals with children in long-term foster care, about 40 percent of the children in state custody. However, some of the recommendations and remedies in the case would also affect children in short-term care by extension.

Meanwhile, over the course of the 2017 Legislative Session, lawmakers enacted a number of bills focused on improving the lives of children in the state’s care, including authorizing the beginning of the system’s ongoing move to Community-Based Care (CBC).

In December 2017, the Special Masters released a lengthy and complex Implementation Plan detailing suggestions to help the state implement the judge’s interim order. The plan recommendations included a large number of changes to policies, systems and staffing in the areas of child visitation, recordkeeping, screening and investigating, attorneys for children, preparation for adult living, caseworker workload and retention, child placements and more.

After receiving the Special Masters’ recommendations, Judge Jack issued a final order on Jan. 19, 2018, that included numerous far-reaching changes to the foster care system with an aggressive implementation timeline. If implemented as written, the order would have required the state to make nearly 100 changes to the system and the way it cares for children. However, Texas Attorney General Ken Paxton immediately appealed the final order, calling it “incomplete and impractical,” and a federal appeals court granted a temporary stay pending hearings by the 5th Circuit Court of Appeals.

In October 2018, the 5th Circuit Court ruled in the appeal, upholding some of the remedies ordered in Judge Jack’s January ruling and striking down others.

In November 2018, Judge Jack issued a court order based on the 5th Circuit ruling which was, once again, appealed by the state, which argued that Judge Jack had gone beyond what the 5th Circuit had allowed in its ruling.

Finally, on July 8, 2019, the 5th Circuit Court of Appeals ruled on the state’s appeal. The court overturned some of Judge Jack’s mandated fixes, including an overhaul to the way the state tracks and records information about children. The 5th Circuit did uphold other requirements, including that no children be placed in licensed foster homes with more than six children without 24-hour supervision of an adult. Read a full summary of the 5th Circuit’s ruling.

Is the lawsuit over now?

The state chose not to continue to appeal Judge Jack’s ruling, in part because in the end the 5th Circuit only required them to implement about 25% of her initial remedies. So, while the state technically lost the case, the appeals process stripped away much of the court’s initial required fixes. Although the legal battle is technically over, the long process of court monitoring has just begun.

What does DFPS have to do now, and what does it all mean for CASA and the children we serve?

With the back-and-forth lawsuits finally over, DFPS will be responsible for completing several workload studies, lowering conservatorship caseloads, and group foster homes will be required to provide 24-hour supervision among a few other things. These changes will be monitored by Judge Jack and two paid monitors. These monitors will have access to the DFPS data systems during the course of the monitoring, which will likely be in place for years.

Though these ordered changes may create a safer foster care system for children, arguably the biggest impact this lawsuit has had to-date is causing heightened scrutiny and awareness around CPS. This, coupled with devastating headlines relating to children in care, prompted state leadership and the legislature to take substantial action to improve the system over the last few years. In addition to victories for children during the 2017 Legislative Session, Texas CASA and other child welfare policy groups saw more success with legislative initiatives in the 2019 Session, and a number of important bills that will improve the lives of Texas children were passed.

Texas CASA’s vision is a safe, positive future for all Texas children, and as we watch the effects of this long-running case, we will continue to work towards achieving that vision. We will continue speaking up for our vulnerable children at the Capitol, and empowering the local CASA programs across the state to do the same at the grassroots level within their communities. We will continue our collaborations with DFPS, foster care providers, Community-Based Care contractors, and child welfare groups to improve policies and make the system work better for these children.

Check out our other CASA Deep Dives!