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April 28, 2014 by Robert Franklin, Esq.

In 2011, a New York-based children’s advocacy organization, Children’s Rights brought suit in federal court against the Texas foster care system. The suit is soon to come to trial in Corpus Christi and, if the plaintiffs prevail, it could mean drastic and expensive changes in how the Lone Star State treats children in foster care. Read about it here (New York Times, 4/23/14).

This comes against a backdrop of years of horror stories regarding failures and oversights by Child Protective Services. Just two months ago, Tiffany Klapheke was found guilty of murder in the death of one of her three children, the oldest of whom was three, from whom she’d simply walked away. The two who survived were severely malnourished and dehydrated. Klapheke was known to local CPS caseworkers, but, in violation of CPS protocols, they hadn’t conducted follow-up visits to the house. They closed their file on Klapheke just days before the child died.

That was followed by CPS caseworkers and supervisors attempting to cover up their malfeasance prompting a district judge to appoint a special prosecutor to investigate the agency. Just five years ago, one group home near Houston was finally shuttered by CPS following the sixth death of a child there in as many years. Then last year, a foster mother was charged in the death of a child in her care. She’d been vetted by the private company hired by CPS, but the company’s standards have since come under fire.

Then there’s the fact that the State Department of Family and Protective Services that oversees local CPS agencies was recently seen attempting to stem the tide of complaints that had gone uninvestigated by Amarillo CPS by transferring caseworkers there from Houston and Austin. The result? A flood tide of uninvestigated complaints in Houston and Austin. It seems that too few caseworkers is too few caseworkers, irrespective of where they’re located.

The most recent commissioner of DFPS is former San Antonio state judge, John Specia. He’s been on the job just a matter of a few months, having inherited it from Howard Baldwin who was there barely a year. At the time, I speculated that his departure more closely resembled rats fleeing a sinking ship than his stated motivation which was to “pursue other career opportunities.” Face it, who wants a job at the head of an agency that’s chronically underfunded and understaffed and about which the headlines are unremittingly critical? Apparently Specia does.

Oh, and then there’s that federal lawsuit that threatens to derail tie CPS up in court for years or possibly decades.

In 2011, Children’s Rights Inc., a New York-based advocacy group, filed a suit targeting the state’s long-term foster care system, a legal state known as permanent managing conservatorship. The group, which has successfully sued in more than a dozen states, said the Texas agency kept children in foster care for too long, violating their constitutional rights.

“The situation is pretty dire, and it’s not getting better,” said Marcia Robinson Lowry, the executive director of Children’s Rights. “Although the tool we use is the court and the law, our goal is not to get a legal decision. Our goal is to change the system.”…

The case is scheduled for trial on Dec. 1 in Corpus Christi before Janis Jack, a federal district judge. With no settlement talks in the works, state officials fear that if they lose, it would mean dealing with far more costly changes than the agency’s current overhaul and being forced into court oversight. If that happens, Texas may be required to reduce workloads for caseworkers, long a problem. Today, some workers shoulder on average 30 children’s cases a month. The lawsuit also asks that the state be forced to have higher licensing and training standards — for both workers and foster care parents.

What’s at stake is the possibility of a consent decree under which the judge would appoint an official to oversee the state’s CPS and foster care systems. That’s not an unfamiliar place for the state to be in. Back in the 1970s, Texas’ prison system fell under a consent decree resulting in its being operated out of a federal court in Tyler for years.

If the same were to happen with the DFPS, Specia would essentially find himself answering to whomever the federal judge appointed. Likewise, the state legislature would possibly be required to allocate more money than it already does – some $2.5 billion – to hire and train caseworkers. Notice that current caseloads run about 30 per month; that’s roughly twice industry standards. And, like other states with similar approaches to child welfare, Texas underpays and undertrains the too-few caseworkers it has. That, plus the dire nature of the job those caseworkers perform, mean the turnover rate for them is high. So there’s a continual influx of caseworkers with too little training, too little experience and too much to do.

It would be the job of whomever the court appoints to change all that, and it wouldn’t come cheaply. And, if the prison consent decree is any indication, the usually pinch-penny legislature would resist reform every step of the way.

That’s the future Specia is likely contemplating. Is it any wonder Howard Baldwin quit?

Still, Children’s Rights has been at this a long time and has won similar suits against some 19 other states. The results of a win in Texas may actually improve the level of services offered by the DFPS and CPS.

The lawsuit said that many children in the Texas foster care system faced abuse and long waits before they were either adopted or returned to safer homes. “These children languish in state care even though as of August 2010, nearly three-quarters of children in the state’s P.M.C. were legally free for adoption,” the lawsuit said, referring to permanent managing conservatorship.

That’s almost certainly not the fault of the agency. As we know, the federal government pays hefty sums for all children adopted out of foster care, so there’s every encouragement (I would argue too much encouragement) for state agencies to push for those kids’ adoptions. But the fact is that children in foster care aren’t the most sought-after kids in the adoption industry. They’ve had parents who were found to be unfit and probably spent long years in foster care. That usually means they’ve lived with many families over the years, sometimes averaging more than one family per year.

To say the least, adoptive parents don’t look first to the foster system for their children. (As an aside, I’d like to once again point out that our current system of adoption makes this matter worse. By cutting fit fathers out of their children’s lives, we force adoption on children who don’t need it. In the process, we deny adoption to children in foster care who do.)

In the end, this lawsuit may be the best news to come to Texas children in a long time. It has the potential to force action by the agency and funding by the legislature that otherwise has never materialized. The Executive Director of Children’s Rights said as much.

“Often we have a very constructive relationship with the state agency,” [Marcia Robinson Lowry] said. “More than one commissioner has said to me, ‘Thank goodness for this court order, I couldn’t get the money I need, I couldn’t get the political leverage I needed without the order.’ ”

I can see her point. Texas prisons improved too. But sadly, eventually even the most constructive consent decrees come to an end. And when that happens, states are free to fall back into their old, dysfunctional ways of funding other priorities at the expense of children. Still, if Texas kids can have a decade or two in which better trained caseworkers deal with caseloads they can actually handle effectively, we’ll all be better off.

As is so often the case, when legislation doesn’t work, litigation does. It’s one of the few ways we have to redress grievances. There’s a chance the children of Texas may benefit.

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