State’s move to bump federal judge from longtime foster care lawsuit caps years of battles

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On a chilly morning last January, U.S. District Judge Janis Jack was visibly on edge in her Corpus Christi courtroom.

She leaned in and cast a hard look at Cecile E. Young, the Texas Health and Human Services Executive Commissioner appointed by Gov. Greg Abbott during the pandemic.

“Commissioner Young,” Jack said. “Have you ever seen the inside of a jail cell?”

The threat was that Young — who had worked in state government for more than 30 years — would be led out of the courtroom in handcuffs alongside Stephanie Muth, another Abbott appointee at the Texas Department of Family and Protective Services, if their agencies didn’t produce “right now” documents Jack had previously requested that showed whether their agencies had been complying with court orders regarding Texas’ beleaguered foster care system.

It was a provocative — and extremely tense — moment, though by far not the only such exchange during that dayslong court hearing. And it crystallized the combative and rancorous relationship that has festered between Jack and Texas welfare officials as they’ve fought over a costly class action lawsuit — filed in 2011 on behalf of children who had been removed from their parents and become wards of the state.

Now, Texas child welfare officials want a higher court to remove Jack from the case, the only one she is overseeing after moving in 2010 to “senior status,” a sort of semi-retirement for federal judges. Since 2011, she’s been the state’s de facto foster care czar.

Among their arguments: She will never let them succeed.

“The record is replete with instances of hostile remarks and actions toward the state defendants and their counsel — hostility that has unfortunately infected the district court’s substantive rulings and that casts a cloud over its future decisions in this case,” reads the state’s June court filing asking the U.S. 5th Circuit Court of Appeals to remove Jack.

At the center of the battle are the roughly 9,000 children in permanent state custody, removed from their homes due to circumstances that can include abuse at home, complex health needs that parents are unable to manage without help, or the loss of family caregivers.

The children often represent the most tragic stories and have some of the most complex mental and behavioral needs of any child in the system, yet they are often left in dangerous homes and residential centers with poor supervision — frequently overmedicated, trafficked, and unable to get help if they’re continuing to be abused.

The state relies on long-term care facilities, hotels, churches, apartments and rental homes to house them. Children in these placements can be as young as 10 but are often teens with complex trauma and behavioral needs.

The state’s extraordinary request to take her off the case is considered to be the nuclear option, triggered after the judge issued her third contempt order against the state in April.

The state has spent $100 million in taxpayer money trying to comply with Jack’s orders to clean up Texas foster care and stop putting vulnerable youth in its care at risk, an endeavor that has seen some improvements in the conditions Jack and other judges had said were damaging to the kids. But the state has also spent much on fighting them, bringing their arguments to the U.S. 5th Circuit Court of Appeals on several occasions.

The agency’s efforts have been met repeatedly with smackdown rulings delivered alongside caustic reprimands and mocking by the judge, new requirements or deadlines, three contempt findings, exhaustive oversight by expensive court monitors, enormous and ongoing fines and the threat of a complete court takeover of the system.

In April, Jack issued a bombshell ruling that found Young and Texas Health and Human Services in contempt of court for the third time and fined the state $100,000 per day until the state could show an attempt to address its routine neglect of investigations into allegations of abuse and neglect of children in the system.The state has appealed the ruling.

“The concerns over the appearance of bias and prejudice are only heightened by the district court’s stated position that there is no end in sight for its supervision of the State’s foster-care system,” the state’s June request reads. “As the court [Jack] has put it, ‘I don’t see how you ever are going to get off monitoring with this attitude. I don’t know how you’re going to ever turn the corner.’”

The 5th Circuit is set to hear oral arguments Aug. 5 on the state’s appeal of the fines and latest contempt ruling as well as the request to remove Jack. A routine status hearing on the lawsuit is set for September, proceedings that have often resulted in further orders, contempt rulings or reprimands.

Attorneys for the children dispute that Jack’s orders and courtroom rebukes are anything other than responses to a yearslong pattern of the state’s repeated efforts to cover up conditions in the system and shortcut, sidestep, block or altogether ignore orders and advice on what child welfare officials should do in order to protect the children in their care.

Replacing Jack, who knows the foster care system better than almost anyone else involved in the case, with someone who has less background would be “deeply cynical” and a huge setback for the children whose lives and health depend on the state’s foster care system, said Paul Yetter, the attorney who is representing the children in the lawsuit.

“She’s tough, but she cares deeply about these children and knows the system. Her expertise is critical to achieve the reforms we need to keep children safe,” Yetter said in a statement to the Tribune on Wednesday. “The state wants a new judge who doesn’t know the system or how badly it has hurt children.”

The state’s appeal of Jack’s April contempt order, which required the state to improve its investigations into allegations of foster children with disabilities being abused, is just one more sign that Texas isn’t ready to be let off the hook yet, Yetter said.

“The state is asking for permission to ignore children who are disabled — some of whom are nonverbal and cannot cry out — and are in perpetual danger inside the system,” Yetter said. “That’s a tragedy waiting to happen.”

Removing Jack from the case and starting over is widely regarded as the most strident attempt yet to change the course of the seemingly endless court fight. But it’s been building toward this tumultuous peak for more than a year, when lawyers for the children announced they would be asking the court to put the entire foster-care system into receivership.

The state acknowledged in its brief that removing Jack from the case would be disruptive but those “consequences pale in comparison to the need to preserve the appearance of impartiality, fairness and justice.”

By comparison, an official court takeover of the state-run system would pose logistical and official nightmares for the Texas Department of Family and Protective Services and the Texas Health and Human Services Commission, which share responsibility for the state’s foster children.

Some contend that Jack’s 2015 ruling and continued oversight are the primary drivers for what improvements have been made. Critics say the suit has sucked up financial resources that DFPS could have used to improve foster care.

Either way, with its costly attempts at compliance falling short, and court monitors repeatedly uncovering fresh reasons for Jack to continue her oversight and push for change through the lawsuit, Texas is looking for a new exit strategy.

A different judge is the first big step to finally getting out from under the courtroom battle and moving its focus back to taking care of its foster kids, the state contends.

DFPS agency officials declined through a spokesperson to comment to The Texas Tribune, saying they were limited by the pending litigation.

Years of struggling under Jack’s critical eye

Jack first ruled in 2015 that Texas had violated the constitutional rights of foster children to be free from an unreasonable risk of harm, saying that children "often age out of care more damaged than when they entered."

Jack has since issued several orders aiming at widespread reform. Abbott’s office, HHSC and DFPS are all named in the court orders, which the state challenged and the 5th U.S. Circuit Court of Appeals partly upheld.

Among the orders that were upheld: The state must increase oversight of residential facilities that house kids, speed up state investigations into abuse and neglect in foster homes, and build software to alert caregivers about child-on-child sexual aggression.

The state had been taking a more cooperative approach to the lawsuit since 2019, when the judge found the system in contempt the first time, levied $250,000 in fines against the state for not enforcing 24-hour watches on the kids in its care, and appointed two monitors who serve as watchdogs to observe the state's compliance.

Last year, the state appeared to escalate its ongoing legal fight after lawyers representing the children asked the judge to hold the state in contempt of court a third time — this time for placing children in unlicensed facilities, mismanaging psychotropic drugs and failing to inform kids how to report abuse and neglect — and requested the judge put the system into receivership.

Then in May 2023, the state hired three high-profile appellate attorneys to come to its defense. Allyson N. Ho, a conservative star in her own right, is married to James Ho, a sitting judge on the 5th U.S. Circuit Court of Appeals — the very court that will rule whether Jack should remain on the case. Ho has said he would recuse himself from any hearing his wife is part of. The state also hired two other lawyers that have clerked for other sitting 5th Circuit judges.

After the first monitors’ report in late 2020 uncovering hundreds of foster children sleeping in unlicensed placements resulted in a second contempt order and threats of more fines by Jack, Abbott ordered Texas child welfare officials in a letter to “ensure that your agencies fully comply with the remedial orders at issue and submit certifications of compliance by the required dates in order to avoid unnecessary fines.”

The agencies responded that measures were being implemented, including creating a department within HHS that would be dedicated solely to complying with the orders.

At the time, the number of children without placements had surged to the highest point in at least four years — with nearly 300 children spending at least two consecutive nights in February 2021 in unlicensed placements, usually sleeping in offices, hotels or community organizations, because no beds were available in licensed facilities, according to DFPS data.

At one point during a hearing on those children, Jack suggested that she serve the same treatment to a state’s attorney, as well as Muth and Young, that their caseworkers were giving to the children without placements.

“I should sentence [the state defendants’ counsel] and Ms. Muth and Ms. Young to one of these . . . cheap motels, where they can live off of McDonald’s,” she told them during a recent hearing. “Or they might be subject to the tasering or the handcuffs.”

What followed was a $100 million effort to respond to some 60 remedial orders. The state says the agency has taken extraordinary measures to fix issues identified by the orders, noting that those have been confirmed both by the court in recent court proceedings and in previous updates by monitors Jack assigned to track the state’s progress.

Texas child welfare officials reassigned staff to focus on monitoring the unlicensed motels and rental homes that house some of the most vulnerable children in the foster-care system.

Caseworkers are better trained, their caseloads are lower, and investigators were responding more quickly to protect foster children and youth, all in compliance with most of Jack’s orders, the state argued.

Currently, the agency has reached full compliance with two orders that require that caseworkers take professional development training and that supervisors be more mindful of recommended caseload guidelines when distributing more cases to employees, DFPS attorneys said.

The state agency notes that it has also reached 90% compliance or higher with 10 other court orders designed to improve the speed and quality of child abuse and neglect investigations.

Higher priority child abuse and neglect victims are now required to be interviewed in person within 72 hours of an initial report and those investigations must be completed within 60 days.

Documentation for those completed investigations must be filed and the parties notified in a timely manner. And caseworkers are now notified of any abuse or neglect accusation that doesn’t trigger an investigation.

The number of children regularly in unlicensed facilities has dwindled sharply to just 19 on a daily average, according to DFPS data.

“We’ve put absolutely everything into the effort to get real placements for these kids,” DFPS spokesperson Patrick Crimmins told the Tribune last week, “and it is paying off.”

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