Appeals court to weigh reimposing fines for Texas foster care failures, removing judge on case

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A federal order to fine Texas’ social services agency to pay $100,000 a day over its failure to improve foster care complaint investigations goes before an appeals court in New Orleans late Monday.

The 5th U.S. Circuit Court of Appeals will hear arguments from attorneys representing foster care children and the state about whether those fines should be activated. State attorneys are also asking that U.S. District Judge Janis Jack be removed from the case.

In April, Jack found Texas Health and Human Services Commissioner Cecile E. Young in contempt for violating her court orders. The judge found the state had failed to fix the way the state investigates complaints by children in its care. This was the third time since the lawsuit over foster care conditions was filed in 2011 that the judge has found Texas officials in contempt.

Here’s what you need to know:

The background: Since the class action lawsuit was filed in 2011 on behalf of roughly 9,000 foster care children, Jack has issued several orders aimed at widespread reform. Jack’s April contempt order, which included a $100,000-a-day fine until the state complied, was stayed the same week by the 5th Circuit. Attorneys for the state appealed the contempt ruling, and are also trying to have Jack removed from the case. The Monday hearing will decide whether that temporary pause for the fines is lifted.

Why Texas wants Jack gone: Texas child welfare officials want Jack off the case because they believe they cannot succeed under Jack’s authority. “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 federal appeals court to remove Jack. Plaintiffs’ attorneys credit Jack’s oversight with improvements made in the state’s foster care system.

Why the children’s attorneys want the judge to remain: Plaintiff’s attorney Paul Yetter has said that replacing Jack would be a huge setback for children in the state’s foster care system, since Jack knows the system better than anyone involved in the case.

“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. “The state wants a new judge who doesn’t know the system or how badly it has hurt children.”

The state has acknowledged that removing Jack from the case would be disruptive, but has said the need to preserve the appearance of impartiality, fairness and justice is greater than the consequences.

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