Texas ignores court orders in 11-year case over abuse, neglect, and death in state foster system


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A federal judge is planning to levy “substantial fines” against Texas for failing to fix its troubled foster care system after an 11-year legal battle.

U.S. District Judge Janis Jack has overseen the case since the beginning, when, in 2011, nine children with experience in the foster care system brought a class action lawsuit against the state. They alleged that Texas violated their “Fourteenth Amendment substantive due process rights, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services.”

Jack ruled in favor of the foster children in 2015, excoriating the state for violating their constitutional rights, subjecting them to abuse, and mismanaging their system in a blistering 260-page ruling:

…as the system currently stands, foster children often age out of care more damaged than when they entered. Years of abuse, neglect, and shuttling between inappropriate placements across the State has created a population that cannot contribute to society, and proves a continued strain on the government through welfare, incarceration, or otherwise. Although some foster children are able to overcome these obstacles, they should not have to.

As an example of what Jack found, consider the following excerpt:

Sharp, who after aging out of foster care began to work with current and former foster youths, stated that all the young people that he has worked with who had been placed at an [residential treatment center] had been abused while in care. Those youths generally had experiences similar to Sharp’s: they attempted to report abuse or other safety problems in their placements but received no response or follow-up, which then discouraged them from trying to make any future reports. Sharp also suffered physical and psychological abuse in other placements, including other [residential treatment centers], foster homes, and group homes. Sharp found sexual assault between foster children to be common, especially in group homes where caregivers were simply “not able to watch everyone.” Sharp described one foster group home where one young boy was sexually abused by a bigger boy “almost every night.”

Attorney ad litem Ricker testified that “almost all” of the PMC children she has represented have been sexually abused. Carpenter testified that, for the over 180 former foster youth with whom she worked, physical, sexual, and emotional abuse in foster care was “way too prevalent” and “the norm.” Approximately 50% of the former foster youths that Carpenter has worked with were sexually abused in foster care. Caseworkers for those youths also often failed to return the youths’ phone calls, even when those calls were in regard to serious issues. Furthermore, the youths’ former caseworkers consistently failed to “show up” or “do what they said they’re going to do,” and some of the former foster youths did not always know who their caseworkers were.

In the intervening years, the state fought Judge Jack’s orders to fix the foster care system, appealing to the 5th Circuit numerous times. Each appeal resulted in the appellate court overturning some of Jack’s mandates but leaving others in place.

Yet, the state still failed to implement the court’s orders that the 5th Circuit allowed stand. “I actually am stunned by the noncompliance of the state,” Jack said in 2020, “but I keep being stunned every time we have one of these hearings.” She held the state in contempt of court twice, issuing hundreds of thousands of dollars in fines.

“The State’s oversight of children’s placements is in numerous instances lethargic and ineffective,” the [court] monitors wrote. “Operations with long, troubled histories of standards violations and child abuse allegations remain open and are permitted to care for vulnerable children, some of whom are then hurt. The prevalence of physical restraints and injuries to children in some facilities is simply shocking, as are the numerous instances where [Department of Family and Protective Services] staff document that the agency does not know where children are placed.”

Between 2020 and 2021, more than 100 children died under the state’s care, most attributed to “preexisting medical conditions” without providing detail, but also including six deaths by drowning and six by suicide. A previous report found numerous examples of deaths from abuse and neglect:

The report includes a 3-year-old boy who died after being found unresponsive on the floor, bleeding from his ear and showing signs of abuse. His day care had reported previous injuries to his case worker. One teenager died by suicide when left alone, despite her case requiring that she be under constant supervision because she was at risk for self-harm. Other cases include negligence by the caretakers for medical needs or in one case when a toddler was able to climb into a pool and drown.

Other deaths not deemed from abuse or neglect include a teenager who drowned, children with severe medical conditions and a 15-year-old girl who had run away from care and was found murdered on the side of the road. One child was in a placement in another state and wasn’t investigated by Texas officials.

Earlier this year it became even clearer that the state was indifferent to child abuse conducted under its purview. Federal court monitors reported in March that The Refuge, a Texas-contracted treatment facility for victims of sex trafficking, employed caregivers who were trafficking the same children.

Seven children, ages 11 to 17, were victimized by nine alleged perpetrators, according to discussions held during an emergency court hearing called by U.S. District Judge Janis Jack on Thursday. The children remained in the facility for over a month after the abuse was first reported before they were removed…[An] employee said a former staff member sold nude photos of two children in the facility’s care, using the proceeds to purchase illegal drugs and alcohol that were then supplied to the children.

Judge Jack asked federal authorities to look into the allegations after losing faith in the Texas Rangers’ own investigation.

Judge Jack said the State should seek sex trafficking charges. She questioned the integrity of the Rangers’ investigation considering they were tasked by the governor, who is a defendant in the lawsuit. “I know exactly where this falls and exactly what to look for. I’m really concerned that the investigation by the Rangers is not proceeding in an appropriate direction,” Jack said.

This leads us to where we are today: Judge Jack issuing another round of contempt sanctions against Texas officials for an 11-year failure to provide safe homes for the most vulnerable children in the state. “I’m looking at substantial fines for contempt enough that you need to know you’re entitled to a jury trial,” Jack said. “I think the public would like to know in a jury trial about these goings-on.”

“Protecting” children

Keep_Track note: Editorializing below

Lest you think that Texas lawmakers don’t care about children, the Republican primary this year—and several years before it—have been dominated by an all-consuming argument about the “protection” of children.

Take, for example, the panic over transgender children. Gov. Greg Abbott issued a February order, based on a non-binding and incorrect legal opinion from Attorney General Ken Paxton, classifying all gender-affirming treatment of transgender minors as “child abuse.” Abbott asked the Department of Family and Protective Services—the same agency that failed to protect foster children for more than 11 years—to investigate families of transgender children for child abuse.

Never mind the fact that gender-affirming care is recognized by the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the Endocrine Society, the American Medical Association, the American Psychological Association, and the American Psychiatric Association as medically necessary and often life-saving.

Before the crusade against transgender rights, Texas lawmakers were so concerned about protecting children from topics the lawmakers themselves were uncomfortable with that they banned teaching about students about race in public schools, directed the Texas Education Agency to investigate whether teachers or librarians were providing “pornography” to kids in the form of books that featured non-gender-conforming characters, and created an environment in which school employees were vilified as “pedophile groomers” for simply doing their jobs.

These attacks on public education only forced teachers to quit en masse. 2022 saw a record number of teachers leave their jobs: nearly 500 resigned, a 60% increase from the 2021 fiscal year. “I’m tired of getting punched. It shouldn’t be like this,” ninth-grade math teacher Gloria Ogboaloh told Texas Monthly. Just months after ordering investigations into school libraries, Gov. Abbott directed the Texas Education Agency to create a task force to investigate the mysterious teacher shortage, which definitely couldn’t be traced back to his own policies.

And who can blame educators for being fed up? Teachers are now asked to arm themselves by the state’s top lawyer, who believes educators should shoulder more responsibility—and take on more danger—than the Uvalde police were willing to when faced with a school gunman.

“We can’t stop bad people from doing bad things,” Texas Attorney General Ken Paxton said on Fox News. “We can potentially arm and prepare and train teachers and other administrators to respond quickly. That, in my opinion, is the best answer.”

Instead of discussing how to actually keep children safe, moral panic has weakened schools and time spent fighting over books in which two men kiss has sidetracked legislative session after session. Texas lawmakers promised to address gun violence after the Sante Fe school shooting in 2018, that took the lives of 10 people, and after the El Paso shooting of 2019, which left 23 dead and more than 20 wounded. Instead, what Texans received was a constitutional carry bill, allowing people to carry handguns without a license or training, signed into law last year.

Uvalde is the culmination of a banal evil1 —the kind that leads to a refusal to expand medicaid while simultaneously blaming gun violence on mental health issues —that has infected legislatures and governor’s mansions across the nation. Bulletproof backpacks that wouldn’t have saved anyone in Uvalde and surprise intruder audits that will only traumatize children are the best we have to offer when policy makers are more concerned about being re-elected than saving lives of school children or those condemned to the Texas foster care system.

Footnote 1: I use “banal evil” in the sense that evil does not have to have a demonic, monstrous appearance. Like in Nazi Germany, many of the perpetrators of evil were bureaucrats trying to advance their careers no matter the cost. “[E]vil is perpetuated when immoral principles become normalized over time…It implied the crimes of Nazi Germany were not the responsibility of a handful of purely evil men. Those men kickstarted it, but society enabled it: a lack of critical thinking, a desensitization, a human susceptibility to totalitarianism — this is what led to the murder of millions.”