December 11, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Yesterday I posted a piece based on reporting by the Austin American-Statesman about improvements to the child protection system in Texas. Its message was that, with the huge influx of money budgeted by the state legislature, major improvements have been made with more likely to come.
Two days later, however, came this piece from Robert Garrett at the Dallas Morning News (Dallas Morning News, 12/7/17). Garrett has, for several years now, been head and shoulders the best reporter on the Department of Family and Protective Services, the multiple scandals surrounding it, the lawsuit against it in Judge Janice Jack’s federal court in Corpus Christi and legislative efforts to improve matters.
His article paints a picture of an agency that’s headed for a collision with the aforementioned federal court. After evidence was heard, Judge Jack issued her opinion about the DFPS that pulled few punches, excoriating the agency for failing kids, families and the state. She then appointed two special masters to provide opinions about what’s needed to bring the DFPS up to industry standards and start serving children properly. That report is just out and is the subject of Garrett’s piece.
Texas should be forced to dramatically increase its supply of loving homes and treatment facility beds for foster children and vastly improve its oversight of their safety and well-being, two appointed advisers in a class-action lawsuit have recommended.
The state should have to eliminate placement shortages in areas such as Dallas, Collin and Denton counties by Aug. 31, said court-appointed special masters Kevin Ryan and Francis McGovern.
Also, Child Protective Services should have to hire and redeploy more caseworkers and begin overhauling its information technology and medical records even sooner, they said.
Every child in long-term foster care also should continue to have a lawyer. Currently, those fortunate enough to have a court-appointed "attorney ad litem" typically lose the legal representation — and connection to a responsible, caring adult — after about a year or two in state care, the two special masters noted.
The state Department of Family and Protective Services, they added, urgently needs to improve investigations of maltreatment of foster children; make sure they have access to phones to report abuse; and are placed in family-like settings, especially if young.
In other words, the experts hired by Judge Jack have concluded that Texas still isn’t doing enough to serve children who are in danger of abuse or neglect or who’ve already been placed in foster care. Stated yet another way, the state may be required to spend even more money to further improve the system. This being Texas, such a requirement, particularly coming from a federal official, doesn’t sit well. But irrespective of the state’s wishes in the matter, Judge Jack will soon issue her final order in the case. How many of the masters’ recommendations will she include in that order? We’ll soon know.
But there’s no doubt that, almost whatever it says, the state will appeal.
Texas Attorney General Ken Paxton has been waiting to pounce on her long-awaited order. He's expected to quickly appeal to the 5thU.S. Circuit Court of Appeals, arguing that Jack has overreached and that Texas is providing a safe enough system to meet 14th Amendment guarantees that citizens be protected while in government custody.
As I said yesterday, look for Paxton to tell the Fifth Circuit justices that the findings made by Jack are moot because Texas has already made changes that have addressed them. In essence, there has been no finding of violations of children’s civil rights as the situation exists now. How it existed two years ago at the close of evidence is irrelevant to today’s world. At best, a new trial would be required to find out if civil rights violations are still occurring. Plus, implementing the masters’ proposals would impede the progress being made.
Indeed, that seems to be what an agency spokesperson was getting at when she made this statement:
The agency "continues to make changes under the guidance of state leadership that are improving the health and safety of children in the state," she said. However, the department "is concerned that the special masters' recommendations could prevent the agency from continuing to implement these positive changes by having agency staff focus all their energy and financial resources on implementing these 98 recommendations."
And nothing an attorney for children in foster care said seemed to rebut Paxton’s take on the case.
"This is a clear road map for reform from world-class experts," he said. "We need lower caseloads, timely visits and investigations, better placement choices and safe facilities. This is a terribly broken system. It needs dramatic reform with strong leadership and a new culture."
Two years ago, all that was true. Today? The state can point to fairly dramatic improvements in every area the lawyer mentioned. The “facts on the ground” have changed. They may even have changed enough to make moot any order issued by Jack that’s based on the previous set of facts.
Whatever happens, 2018 promises to be an exciting time for the DFPS and Judge Janice Jack.
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