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September 6, 2013 by Robert Franklin, Esq.

A federal judge in Corpus Christi, Texas has given a green light to a class action lawsuit against that state’s Department of Family and Protective Services. The DFPS oversees child protective agencies at the local level. The lawsuit alleges that the children in foster care are abused and neglected due in part to the state’s failure to properly evaluate foster families and then oversee their care of children. The suit was originally filed in 2011. A hearing on whether to certify it as a class was held in January of this year and Judge Janis Graham Jack agreed to class certification on Tuesday, August 27.

The New York-based organization Children’s Rights is suing the state on behalf of the 12,000 children permanently placed in foster care because their parent’s rights have been terminated. Nine named children appear in the suit as plaintiffs against the state.

Jack, who held a hearing in January, ruled the New York-based group Children's Rights offered enough preliminary evidence about overworked Child Protective Services caseworkers and harried child care licensing inspectors to advance toward a trial.

Jack rejected a request from Attorney General Greg Abbott that the lawsuit be dismissed due to lack of evidence of alleged gross state failings.

Generally, the children’s suit claims that Texas’ foster care system fails to protect them from harm when they’re placed in foster care.

Like the State of Arizona, Texas state government has experienced sharp reductions in spending for most state agencies, not excepting the DFPS. Across the state, that’s resulted in skyrocketing caseloads for CPS caseworkers. That in turn results in high caseworker turnover and ever-increasing caseloads. Previous reports have shown caseworkers in certain counties burdened with as many as 45 cases at a time when industry standards call for about one-third that.

Given the all-but-impossible task of handling all those cases, it’s no surprise that mistakes are made. The latest scandal that’s made state-wide news is that of a little girl who was allegedly killed by her foster mother, who is now in jail facing criminal charges. Allegations in that case involve the privatization of the process of vetting potential foster parents. The state turned that process over to a company called Texas Mentor and already there are claims that the company has done a slipshod job.

But of course the lawsuit against the DFPS involves factual allegations far pre-dating that incident or the growing concern about Texas Mentor.

For many years, Texas’ foster care system has been wracked by scandal. One group home south of Houston was finally closed four years ago after the death of a fifth child at the hands of home personnel. Time and again, changes were made, but children continued to suffer.

In one sense, that’s just par for the course. Numerous studies show that children tend to do worse in foster care than in parental care and that includes families in which the parents are at least somewhat abusive to their children. Even in those families, children tend to have better outcomes than do children raised in foster care.

Other studies show high incidents of abuse and neglect in foster care. Sexual abuse and drug abuse are not uncommon. Children suffer emotional and psychological trauma just by being separated from their parents, but often those consequences only worsen in foster families.

Then of course there’s the problem of “aging out of the system.” At age 18, children in foster care are forced to leave their foster homes, ready or not. The state stops paying and foster parents usually consider their job done. That the child is likely not to be ready for making his/her way in the adult world is a fact state budgets don’t address. The phenomenon of foster children returning to their biological parents after aging out is common and well known to foster parents, caseworkers and biological parents alike.

If there seem to be an inordinate number of children in foster care, there may be a simple explanation — money, specifically federal money. The United States government pays states for every child in foster care who’s adopted. The idea is sound enough; we want those children to have the best, most stable homes possible, and an adoptive relationship is usually more stable and certainly more long-lasting than a foster one.

But the unintended consequence of large amounts of money flowing from Washington to state agencies turned out to be encouraging state officials to take children into foster care. Here’s how a former state senator from South Dakota described the effect of that money on his state’s government:

Bill Napoli chaired the state Senate Appropriations Committee until he retired three years ago. He says he remembers when the state first saw the large amounts of money the federal government was sending the Department of Social Services in the late 1990s.

"When that money came down the pike, it was huge," Napoli says. "That's when we saw a real influx of kids being taken out of families."

He said there was little lawmakers could do to rein in the department. This was federal money, and it went straight to social services.

"I'm sure they were trying to answer a public perception of a problem," he said. "And then slowly it grew to a point where they had so much power that no one — no one — could question what they were doing. Is that a recipe for a bureaucracy that's totally out of control? I would say so."

Sometimes, as a justice of the Idaho Supreme Court pointed out not long ago, the shanghai-ing of children into foster care bears an uncomfortable resemblance to trafficking in children for pay.

But whatever the cause, Texas now has more children in foster care, and therefore more foster homes, than it can adequately monitor. The results are thousands of children who say they’re underserved, abused and neglected, a massive federal lawsuit and the prospect of an enormous payout in damages sometime in the future. Does that sound like a successful program to you?

We can do better — much better. Most importantly, state child protective agencies need to start putting more resources into educating parents in how to do that job better. Transferring money to that end and away from foster care could improve outcomes for children and cut state budgets. Face it, a little education and oversight of parents is a lot cheaper than foster care and much better for the kids. Of course we’ll always need foster parents. Some parents just aren’t cut out for the job and children need a haven from them. And many foster parents are excellent, loving and dedicated to the children in their care.

But as a general rule, children do better with their parents than without them and we should do everything possible to keep them in their parent’s care. That’s particularly true given that doing so is cheaper than what we’re doing now.

Typically, the Texas Legislature figured that, if it just cut the budget, we’d save taxpayers’ money and, well, what could possibly go wrong? Now the chickens have come home to roost and it’s kids who are getting dumped on.

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