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November 6, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The two special masters appointed by Federal Judge Janis Jack to make recommendations about how to bring the Texas Department of Family and Protective Services into compliance with the U.S. Constitution have made their report. Of course, as special masters, Kevin Ryan and Francis McGovern have only the power to make recommendations, but they are recommendations that Judge Jack can incorporate into a judicial order. Failure to act on some or all of their recommendations would surely result in Jack’s doing just that.

Special masters hired by the state to scrutinize the Texas Department of Family and Protective Services say the embattled agency should increase its focus on improving the timeliness in seeing children under its care — one of about 56 recommendations it made in a report released Friday.

In their 13-page report, special masters Kevin Ryan and Francis McGovern also discussed the need for improvements in updating children's health records and limiting caseloads for Child Protective Services caseworkers.

The long-awaited report comes almost a year after U.S. District Judge Janis Jack ruled that Texas’ long-term foster care system violated children's civil rights. She ordered the state to hire special masters to come up with solutions.

And much as I’ve predicted, the state legislature is balking at even modest expenditures to improve the well-being of kids in the care of state Child Protective Services, a division of DFPS.

Earlier last month, state leaders including Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus directed department Commissioner Hank Whitman to come up with a plan to present to the Legislature. But that overhaul plan, with a price tag of more than $60 million, made Senate Finance Committee members fume over costs and question if the agency had been efficiently spending its allocated dollars.

Whitman is banking on the idea that training and hiring 550 new workers will help with caseloads. The agency is also under intense scrutiny about being unable to find missing endangered children and having some children sleep in hotels and CPS offices until the agency can find them a home.

Hiring those additional caseworkers would indeed help. But how is the agency going to hire people who don’t want to be there? Yes, caseloads would come down with an influx of new caseworkers, but the state needs to increase pay levels too. And the idea that $60 million will solve all the problems faced by CPS is frankly not rational. This article quotes one close observer of DFPS and the lawsuit against it to exactly that effect (KUT

Mike Ward has been covering the story for the Houston Chronicle. He says Jack gave the appointees a list of issues to look at in the system, most of which involve keeping kids safe while in state custody. State lawmakers are close to approving emergency funds nearing $88 million to hire additional caseworkers, investigators, and other front-line personnel so that the state can keep up with its intake of children.

But this is not nearly enough money to overhaul the foster care system, Ward says.

"This is essentially a band-aid to fix the immediate problem,” Ward says. “[CPS] is going to hire some additional people but it is not a permanent fix. A permanent fix, at least from what the state knows at this point, is gonna cost somewhere north of $400 million."

Marcia Robinson Lowry, the lawyer who filed the lawsuit against DFPS seems to concur.

Marcia Robinson Lowry, the lawyer responsible for filing the DFPS lawsuit, said that Texas' foster care system is "if not the worst, one of the worst I've seen."

She said the agency needs to develop caseload standards for workers and provide more intense oversight of homes and providers they contract to weed out bad seeds…

"The Texas foster system has a huge number of problems, and you can't necessarily address all of them in one lawsuit.

The special masters’ report seems to be fairly comprehensive even though the lawsuit didn’t address all shortcomings of the Texas system.

The report recommends some changes in areas that the agency has already faced pressure from lawmakers about, including CPS worker caseloads and high turnover rates in the agency. Investigators are recommending that caseworkers have between 14 and 17 cases…

The report also points out that more outside training and mentorship for new hires would be helpful with caseworkers. Investigators also suggested that each supervisor should manage no more than five or six caseworkers at a time…

Though DFPS struggles to quickly investigate child abuse allegations, special masters are recommending ways for them to find out about these cases faster. That includes developing a statewide reporting or hotline system, just like the Texas Abuse Hotline, for people to report alleged child abuse and a separate 24 hour hotline for children to report if they’re being harmed.

The report also suggests that residential treatment centers and foster homes have a landline for children to use the 24 hour number.

The report also takes on Texas’ handling of kids aging out of the foster care system. Specifically, it urges the state to begin preparing children for the transition out of care much earlier and more fully than it has in the past.

The special masters say the the agency can better serve older children aging out of the system. In 2015, the department reported that 1,180 children were emancipated from the program.

Investigators are recommending the agency start the transition plan process for 14-year-olds, including helping them obtain a driver’s permit and license, working with attorneys to get certain juvenile and criminal records sealed or expunged, goal-setting and skill-building, and making sure they are signed up for any benefits they may be eligible for like Medicaid, the joint federal-state health insurance for the poor and disabled.

Of course readers of this blog may remember my three-part review of Prof. Daniel Hatcher’s excellent book The Poverty Industry that demonstrates how state agencies appoint themselves to act on behalf of children receiving various benefits and then, instead of passing the benefits to the kids, simply channeling the money into the state’s general revenue, in violation of multiple federal laws and regulations.

Whatever happens in Texas, even if all the recommendations were carried out in full, it would still be only a start toward fixing the system of protecting kids and creating a healthy foster care environment.

Kate Murphy, child protection policy associate for Texans Care for Children, said in an email statement that the report appears "on the right track" but that "the steps outlined in the report are not intended to chart a path to a highly effective foster care system."

She said the items the special investigators are recommending would bring the state up to minimum standards…

"State leaders will have to do more to make sure that kids in foster care heal from the trauma they've already experienced and grow up healthy. As the state implements the steps outlined by the Special Masters to fulfill our legal obligation, there will be much more work to do to fulfill our moral obligation."

And, just in case anyone thought the state would actually implement all the special masters’ recommendations, state officials essentially promised that wouldn’t be the case.

"We appreciate many of the recommendations announced today and look forward to continuing our efforts to reform the state foster care system in a way that ensures the best possible outcomes for the children of Texas," [State Senator Charles] Schwertner said. "I think we all acknowledge the need to make improvements in how DFPS operates, but ultimately the responsibility for solving this problem lies with the Texas Legislature -- not the courts."

That may or may not be true. If the state brings its system up to constitutional standards the Schwertner is right. But if it doesn’t (and I’ll eat my hat if it does), there can always be another suit filed, another finding of liability against the state and, potentially, a judicial order placing CPS operations under the supervision of a court-appointed special master who essentially runs it. Something very similar happened back in the 70s with the Texas Department of Corrections when Judge William Wayne Justice virtually ran the system via a series of decrees. Judge Jack doesn’t want to follow in Justice’s footsteps, but this show is just getting started. Look for Texas to try to get away with doing as little as possible and look for people like Marcia Lowry to be watching them every step of the way.

 

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