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December 20, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

A federal judge has issued an order taking over the management of the child welfare agency of the nation’s second largest state (The Texas Tribune, 12/17/15). Judge Janis Jack of Corpus Christi issued her long-awaited order this past Thursday. I last wrote about the case here.

Trial of the class-action lawsuit took place last year. It was brought by the New York-based child advocacy organization, Children’s Rights, Inc. that has brought similar suits in other states.

Judge Jack’s order appoints a Special Master to oversee Texas’ Child Protective Services, a division of the state Department of Family and Protective Services. Her order constitutes a sweeping denunciation of the agency that a previous audit by the Stevens Group found to suffer from lack of staff, low employee morale, high rates of turnover by caseworkers and contradictory and confusing policies, among other problems.

The order makes many of the same points I’ve made on this blog time and again about child welfare agencies in various states including Texas, Canada and the United Kingdom.

Texas has violated the constitutional rights of foster children by exposing them to an unreasonable risk of harm in a system where children "often age out of care more damaged than when they entered," a federal judge ruled Thursday.

What’s true of Texas’ children in foster care is often true elsewhere. Numerous studies indicate that, even when familial care is somewhat abusive, foster care on average is worse for kids. The trauma of being separated from known parents and surroundings is bad enough, but the uncertainty of foster care only adds to the problem. How long will the child be in foster care? For the rest of his/her childhood? For a few weeks? How many foster homes will he/she live in? One? Fourteen?

And of course the chances the child will be abused in foster care are greater than in parental care except in fairly unusual circumstances. Unsurprisingly, Judge Jack is right; all too often, foster care does more harm than good.

"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," U.S. District Judge Janis Jack of Corpus Christi wrote in a decision as strongly worded as it was hotly anticipated.

Again, I’ve said the same too many times to count. Damaged kids tend to grow up to be dysfunctional adults. That means society ends up directing an astonishing array of costly programs at a population society plays a definite role in creating.

Foster kids’ commission of crime means we spend more on prisons. Their increased involvement in alcohol and illicit drugs means we spend more on programs to attack addiction. Their poor performance in school means not only remedial education programs, but decreased employability. Decreased employment on the part of former foster kids means more programs to train and connect them with jobs. The list goes on, but suffice it to say that policies that intervene early to teach adults how to be better parents would bring better outcomes for kids and needed relief for state budgets.

Judge Jack’s order contains several specifics about the powers of the Special Master and the areas of concern over which he/she will have control.

Jack ordered child welfare officials to implement reforms to ensure that foster children are protected and said she will appoint a "special master" to ensure compliance. That overseer will be paid for by the state.

The order directs the state to hire enough caseworkers for long-term foster care children “to ensure that caseloads are manageable” in all of the state’s 254 counties. Just how many caseworkers that will take is a question left to the special master, who will be required to study how much time caseworkers need to do their jobs adequately.

Advocates for foster children have long accused the state of stretching its caseworkers too thin to effectively protect their wards. The court also ordered the state to improve caseworkers’ turnover rate and said those workers should be able to spend more than 26 percent of their time with foster children…

Jack also directed the state to stop placing certain children in unsafe settings such as foster group homes that lack 24-hour awake-night supervision. While that order is in place, the special master will make a recommendation about whether group homes should continue to operate at all, depending on a determination from the special master about whether they cause “an unreasonable risk of harm” to foster children…

The court ordered other reforms at the state agency, such as implementing policies that allow children to speak privately to Child Protective Services staff and improving outreach to children who age out of foster care. The Department of Family and Protective Services was also ordered to track child-on-child abuse and improve the organization and consistency with which it maintains foster children’s case files.

And at institutional residential treatment facilities, foster children with significantly different needs can no longer be placed in the same room, according to the court’s order. For example, a child classified by the state as “moderate” may not share a room with a child whose needs are considered “intense.” The court also ordered Texas to track how many children are in each residential facility.

In short, the state system of child welfare and foster care is now (assuming Judge Jack’s order is upheld on appeal) in the hands of single person who’s answerable to no one except Judge Jack. Plus, the Special Master will wield enormous power, specifically the power to force the state to spend huge sums of money not hitherto budgeted. Experience in the area of criminal corrections teaches that’s a situation that’s ripe for confrontation with the legislature.

Over 40 years ago, a federal judge took over the running of Texas’ prisons due to the state’s continual violations of inmates’ civil rights. That was viewed by correctional employees and the state legislature as a usurpation of their rightful authority. There was no doubt the judge had the power to do what he did, but he soon discovered that it’s one thing to issue an order and yet another to enforce it. Many years of litigation followed with the state resisting the judge’s authority every step of the way. The judge’s final order in the case was more a truce between exhausted enemies than a victory for inmates or the power of a federal court.

Expect the same in the case of Child Protective Services. Now, from a public relations standpoint, the state in the ‘70s could more easily thumb its nose at criminals behind bars than it can now at abused children, but don’t expect Texas to simply roll over for this federal judge any more than it did for the last. Even if Judge Jack’s order is upheld on appeal, I predict that this fight has just begun.

For one thing, no order by a federal judge can alter United States policy on foster care or the funding that supports it. Washington will still pay states to take children into care and pay them again when they’re adopted. Those incentives remain in place.

Judge Jack’s order is squarely aimed at drastically improving conditions that have festered for too long and that have damaged countless kids beyond repair. As such, it’s a good thing. But the question arises of whether litigation and the resulting court order are the best way to go about long-term reform.  

I’ll have more to say on that next time.

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