Texas argues it can fix foster care without judge's oversight

Texas’ Republican attorney general, faced with a mounting crisis in the state’s child welfare system, on Tuesday published a scathing critique of costly, court-ordered reforms meant to improve the conditions of children in the state’s long-term foster care system.

Lawyers for the state argued that the court’s proposed reforms — first ordered by a federal district judge, then laid out by a pair of “special masters” hired, against the state’s wishes, on Texas’ dime — are an example of egregious federal overreach.

The move puts the state's Republican leaders in a delicate position: While they concede that the foster care system’s underlying problems are a pressing matter, they argue it's one they can address on their own. That's despite the fact that the system has been broken — and worsening — for years under their tenure. 

In a new legal filing on Tuesday, part of the long-running class-action lawsuit against Gov. Greg Abbott and the child welfare system writ large, Texas Attorney General Ken Paxton's office objected to the special masters’ recommendations, calling them “over-broad” and saying there is no proof they will work. The special masters have recommended lowering caseloads for child welfare workers and hiring more of them to pick up the slack.  

Those recommendations were among those broadly outlined by U.S. District Judge Janis Jack of Corpus Christi, who wrote in a December 2015 opinion that the state’s long-term foster care system had violated children’s constitutional right to be free from an unreasonable risk of harm. Children in the state’s current system, she wrote, "often age out of care more damaged than when they entered.”

Lawyers for the state, though acknowledging that the foster care system has room for improvement, disputed Jack’s ruling, writing in Tuesday’s filing that the alleged constitutional violations “are unsupported by reliable expert testimony or other competent, admissible evidence.” They argue Jack's findings were "too vague" to support the remedies recommended by special masters.

The children's rights advocates suing the state expressed dismay with the latest filing.

"Sadly, the state wants to keep fighting, rather than start fixing its system for these children," Paul Yetter, a lead attorney on the case, wrote in an email.

Texas leaders have said they are fully capable of reforming the state's child welfare system on their own, without any meddling from the federal judicial system.

Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus have all vowed to take up a reform-minded agenda when state lawmakers convene in Austin in 2017. Hank Whitman, the newly appointed head of the Department of Family and Protective Services, which oversees child welfare, has asked lawmakers for funding to hire 550 additional investigators and offer significant pay raises to front-line caseworkers.

“It’s unfortunate and disappointing that millions of dollars that could have gone to serving youth in the Texas foster care system and hiring more caseworkers will now be spent towards the legally baseless special master process,” an Abbott spokesman told The Texas Tribune in May. The two special masters were expected to be paid $345 an hour over a six-month period. 

In previous filings, state officials conceded there was room for improvement in Texas foster care. Still, they said the system’s failings did not rise to the level of civil rights violations, arguing the shortcomings were not enough to “shock the conscience.”

“It is true that Texas’ foster care system needs improvement in certain areas,” lawyers for the state wrote in their previous appeal. “But the same could be said of most states’ foster care systems.”

Read related Tribune coverage:

• One day after lawmakers challenged his plans for retaining caseworkers, DFPS chief Hank Whitman asked for even more money to raise salaries.
• The governor's office has put the Department of Family and Protective Services on notice to come up with a plan to help foster children find home placements faster and seek out those facing abuse.