Federal Judge Holds Texas Child Welfare Agencies in Contempt, Again

Sep 10, 2020

Federal Judge Holds Texas Child Welfare Agencies in Contempt, Again

During a virtual hearing last week, a federal court judge blasted the state’s child welfare agencies as indifferent that “children are dying.” Judge Janis Jack held both the Department of Family and Protective Services (DFPS) and the Health and Human Services Commission (HHSC) in contempt of court for failing to comply with her prior orders, and indicated that she will issue monetary sanctions by the end of the month.


Judge Janis Jack
Judge Janis Jack


“I’m not understanding the state’s reluctance, and actually refusal, to abide by these orders.” Jack said.


Just 9 months ago, the same judge held the DFPS in contempt and fined the state $50,000 per day for 3 days.


Since then, 11 foster children in the state’s care have died. Although she acknowledged that some were unavoidable, Judge Jack zeroed in on a few as evidence of systemic failures. According to Paul Yetter, a Houston attorney representing children in the permanent custody of the state:


“These children’s deaths were completely preventable. As we have learned more about them, it’s become clear that there were systemic breakdowns and failures over and over, both at a high level in licensing and monitoring these placements,”


The hearing came in response to a 363-page report prepared by the judge’s appointed monitors to evaluate court-mandated reform of the state’s beleaguered child welfare system. The June report detailed “substantial threats to children’s safety.” According to the report, “the State’s oversight of children’s placements is in numerous instances lethargic and ineffective.”


The hearing focused on a litany of orders that required additional oversight of residential facilities, improved timeliness in investigating abuse and neglect occurring in state care, and notice to caregivers of children’s histories as either victim or perpetrator of sexual aggression.


Lack of Coordination Between Agencies Putting Children at Risk


Witnesses from the state agencies explained the intricacies of coordinating a response to abuse and neglect within the system — which includes licensing caretakers and facilities, providing case oversight, and receiving and investigating allegations of abuse and neglect. Judge Jack was unmoved:


“Every time I make an order, they come up with another excuse not to follow it or they don’t understand it. Contempt is my remedy here.”


The hearing revealed inefficiencies in the structure of the state’s response — specific functions of which are broken up between at least two different state agencies and across different departments within each agency. The judge urged state officials at the hearing to improve communication between two separate state agencies.


In a statement, Katie Olse, Executive Director of the Texas Alliance of Child and Family Services, which represents providers that contract with the state, noted the dysfunction:


“The community-based organizations serving these children take problems in Texas’ foster care system very seriously, and this legal process has no doubt brought attention to specific issues that need to be addressed. It’s clear that better alignment between state agencies would improve care for vulnerable children. We also need to be sure that all available resources are flowing to help the young people who need them.”


Paralyzing Bureaucracy Prevents Reform


Assistant Attorney General Kimberly Gdula, who represents the state agencies, argued that state officials “have taken tremendous strides to meet the compliance requirements of the Court’s modified injunction.” Witnesses for the state detailed policy and practice changes but were not able to produce sufficient evidence to satisfy the judge that the state was actually making progress to protect children in its care.


Judge Jack accused state officials of dragging their feet on making meaningful changes.


“I actually am stunned by the noncompliance of the state,” Jack said, “but I keep being stunned every time we have one of these hearings.”


She accused the state’s witnesses of “circular speak,” when they tried to explain the actions they have taken to safeguard children. Judge Jack told Jean Shaw, Associate Commissioner for Child Care Licensing at HHS:


“You knew what the order meant, you just refused to do it. This is just stunning. This is just an entity that does not care about what they’re doing and does not care to follow the court’s order.”


Judge Points to Best Practices from Other Industries


The two-day hearing revealed striking differences between the judge’s expectations and efforts by the state agency to comply with her prior orders. The judge was demanding proof of results. The agencies were offering evidence of effort.


At times, the judge seemed baffled by the inefficiencies of the state child welfare bureaucracy. In response to testimony about the several outdated computer systems used by the state to track licenses, cases, and investigations, Judge Jack offered that perhaps Dell or some other Austin technology company could help.


Each agency uses a different database and lack widespread access to each other’s information. The systems are not integrated, requiring different credentials and user interfaces to access data related to the same child.


Referring to unannounced visits by court monitors, who found discrepancies between children actually at facilities visited and inventories provided by the state, the judge offered that grocers have better inventory tracking.


“H-E-B has better tracking of their produce than DFPS does of children in their care,” she said.


DFPS Office
DFPS Office


Far From Over


This is just the latest in the ongoing litigation against the state’s child welfare agencies. The case was originally filed in 2011 and the first of several court opinions adverse to the state came in 2015.


The litigation represents a form of leverage policy-making that has been implemented in over 30 U.S. states to force reform of child welfare systems. In 2019, 15 state child welfare systems were operating under court-ordered monitoring. The average duration of such reform litigation is over 17 years, meaning Texas has a long road ahead of it.


Our Take


Although the litigation against the Texas child welfare system has revealed issues that were unknown (perhaps even to the state agencies themselves), systemic improvements brought about by coercive litigation are not sustainable. Rather, state agencies and stakeholders must be introspective but also come together to build relationships and practices that will serve the state when the current litigation is just a footnote.


The painful debridement underway in Texas child welfare is giving us a sense of what to do:


  • The judge’s comments about borrowing from Texas industry leaders like Dell and H-E-B are part of this. Innovative leadership is abundant in our state.
  • Breaking the “lethargic” state bureaucracy into manageable, community-centered chunks is another part of meaningful reform. This process has already begun with the Community Based Care model passed by the legislature in 2017. However, implementation of the model is suffering from some of the same systemic afflictions revealed in last weeks hearing — that is, lack of coordination and communication and bureaucratic stagnation.
  • A third part of Texas-owned reform is a thorough examination of the agencies involved in caring for our foster children. Inefficiencies are a natural part of any organization, especially those as large and established as our state agencies. Such inefficiencies affect not only their customers and clients — in this case, children, families, and community organizations — but also affect staff. Everyone wants to work for and with efficient and innovative organizations.


What if our system became less bureaucratic, less encumbered by rules and policy? Would it be less lethargic? Would the caseworkers like it better? Would children be safer? What if we could rely, just as Judge Jack suggested, on local industry to help with the logistics it takes to keep kids safe and cared for. I would imagine there is much to learn from the industry that is fueling the world.


The continued threat and periodic reality of heavy sanctions leave us all feeling almost as isolated and overwhelmed as the children in foster care. Our state’s child-serving system can be clear-minded and results-oriented. But the shift from lethargy to innovation will not come about through litigation. It requires commitment by informed citizens, stakeholders, policy-makers, and community members to build something better, together. We have written about this process here.