5th Circuit Court orders federal judge removed from Texas foster care lawsuit

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A federal appeals court late Friday ordered a judge who found the state of Texas repeatedly in contempt for its failed foster care fixes be removed from the case, signaling a possible end to the 13-year legal battle.

The 3-0 decision from the 5th U.S. Circuit Court of Appeals in New Orleans found that U.S. District Judge Janis Jack’s “highly antagonistic demeanor” during a three-day hearing late last year called into doubt at least “the appearance of fairness” for defendants in the case: Texas Health and Human Services and its sister agency, the Department of Family and Protective Services, which operates the foster care system.

“The district judge must be removed,” the panel ruled.

The opinion was authored by Judge Edith Jones and joined by Judge Cory Wilson and Judge Edith Clement. The three also reversed the $100,000 a day fine and contempt order Jack issued against Texas’ social services agency. The 5th Circuit had earlier blocked that fine days after it was imposed by Jack in April.

Gov. Greg Abbott’s office did not immediately respond to a request for comment.

Last year, the Texas attorney general’s office hired private attorneys to represent the state in the ongoing legal battle. That team included veteran appellate lawyer Allyson Ho, the wife of 5th Circuit Judge James Ho, who is one of 26 judges on the court.

The background: Jack, a federal judge in Texas’ Southern District, has been the de facto foster care czar, overseeing the case challenging the care of foster care children in the state’s permanent custody since it was filed in 2011.

At issue is the care of roughly 9,000 children in the state’s permanent custody after being removed from their homes because of abuse or neglect. Since the case was filed, Jack has found the state in contempt three times for failing to fix conditions.

In April, Jack issued a bombshell ruling that found Texas Health and Human Services Commissioner Cecile E. Young in contempt of her court orders to fix the way the state investigates complaints by children in its care. It was the third contempt ruling in the case and Jack also 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 5th Circuit blocked that fine two days after Jack’s ruling and on Friday reversed it.

What the 5th Circuit says: In Friday’s decision, the appeals court judge included caustic excerpts from transcripts of court hearings before Jack prior to coming to the conclusion that Jack be removed.

“The above excerpts show that the judge exhibits a sustained pattern, over the course of months and numerous hearings, of disrespect for the Defendants and their counsel, but no such attitude toward the Plaintiffs’ counsel,” the appellate court decision stated. “The judge’s demeanor exhibits a ‘high degree of antagonism,' calling into doubt at least ‘the appearance of fairness’ for the state Defendants.”

Broader impact: Since the case was filed on behalf of Texas foster care children, more than $200 million has been spent on improvements. Paul Yetter, the plaintiffs’ lawyer in the case, would not say if they planned to appeal the 5th Circuit’s decision.

“We are assessing our options,” Yetter said in a statement issued Friday night. “Frankly, this is a sad day for Texas children. For over a decade, Judge Jack pushed the state to fix its broken system. She deserves a medal for what she’s done. We will keep fighting to ensure these children are safe.”