Federal judge says she will again hold Texas in contempt of court for failing to meet foster care reforms

U.S. District Judge Janis Jack said Friday she will once again hold Texas health and human services officials in contempt of court, a punishment that may come with hefty fines, for failing to make progress toward foster care reforms she ordered to be implemented last year.

Jack indicated she would give the state about a month to make improvements before deciding whether to assess fines of up to several thousand dollars per day.

If finalized, the contempt finding would mark the second time in 10 months that Jack has punished state officials for being out of compliance with her demands, which are the culmination of a decade-long class-action lawsuit that brought the state under federal court supervision. Her announcement followed a two-day hearing, held by video conference, in which she frequently chided some of Texas’ top child welfare bureaucrats.

At times, she interrupted Paul Yetter, the Houston-based attorney representing more than 10,000 long-term foster children in Texas, to emphatically agree with his assertions that the foster care system “continues to hurt and endanger children.”

“I actually am stunned by the noncompliance of the state,” Jack said, “but I keep being stunned every time we have one of these hearings.”

The hearing focused on more than a dozen of Jack’s orders, which required state officials to beef up oversight of residential facilities that house kids, improve the timeliness of state investigations into abuse and neglect in foster homes, and build software to alert caregivers and caseworkers about instances of child-on-child sexual aggression. Jack also urged state officials at the hearing to improve communication between two separate state agencies: one that oversees children in foster care and one that licenses homes and facilities that house large numbers of foster children.

Throughout the hearing, Jack echoed concerns raised by two court-appointed monitors in a 363-page report released in June that detailed “substantial threats to children’s safety,” particularly in large, privately run foster homes.

“The State’s oversight of children’s placements is in numerous instances lethargic and ineffective,” the monitors wrote. “Operations with long, troubled histories of standards violations and child abuse allegations remain open and are permitted to care for vulnerable children, some of whom are then hurt. The prevalence of physical restraints and injuries to children in some facilities is simply shocking, as are the numerous instances where DFPS staff document that the agency does not know where children are placed.”

Jack said she agreed with the monitors’ findings and accused state officials of dragging their feet on making meaningful changes. In particular, she took issue with Jean Shaw, the associate commissioner for child care regulation at the Texas Health and Human Services Commission, for not coming down harder on residential operations with long histories of regulatory violations.

Texas foster care officials testified Thursday that they had recently stopped placing children in one facility where monitors identified problems. A Texas Department of Family and Protective Services official testified that the agency was terminating its contract this week with Prairie Harbor, a Houston-area residential treatment center where a teen died in February from a pulmonary embolism associated with a blood clot in her leg.

The home has yet to have its license pulled, though state officials indicated that was a possibility.

Jack berated Shaw for allowing the home to remain open for months after the teen’s death and for recently approving a variance that allowed the home to marginally reduce the number of staff supervising children. Shaw said the agency had approved the variance at Prairie Harbor, and similar variances at other foster facilities, because of private operators’ difficulties fully staffing during the coronavirus pandemic.

At one point, Jack told Shaw, “I don’t think you’re thinking at all.” At another, Yetter asked Shaw if she realized that granting the variance had placed children at Prairie Harbor at risk.

“I don’t realize that,” Shaw said.

Jack cut her off. “That’s the problem, Mr. Yetter,” the judge said, addressing the children’s attorney. “That’s the problem.”

In a statement after the hearing, Katie Olse, the chief executive of the trade group Texas Alliance of Child and Family Services, which represents foster home administrators, said that “Texas’ children must be at the center of this process” and that private groups have been “heroically serving children coming from terrible circumstances.”

“The community-based organizations serving these children take problems in Texas’ foster care system very seriously, and this legal process has no doubt brought attention to specific issues that need to be addressed,” Olse said. “It’s clear that better alignment between state agencies would improve care for vulnerable children. We also need to be sure that all available resources are flowing to help the young people who need them.”

During the two-day hearing, state officials described their efforts as a work in progress and resisted the sweeping terms Jack used to criticize the system they oversee. But given the opportunity, they declined to name any perceived inaccuracies in the court-appointed monitors’ report, which detailed 11 recent child deaths.

At one point, Texas Department of Family and Protective Services Commissioner Jaime Masters told the judge, “Your Honor, I’m concerned by what I’m hearing as well.”

In a recent legal filing, lawyers from the Texas Attorney General’s Office, which is defending child welfare officials in the case, wrote that they had “taken tremendous strides” to comply with Jack’s order. The arguments made by the children’s attorneys, they wrote, paint “an incomplete picture” of the state’s efforts.

In November 2019, Jack held the state in contempt of court after a similarly fiery hearing for failing to comply with her orders, at the time focusing on a requirement that large foster homes have 24-hour, awake supervision. Based on initial information from the monitors, she said then she no longer found the state’s child welfare agency “to be credible in any way.”

She fined the state $150,000 at the time.

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