Updated: Lawsuit Can't Cover All Kids in Long-Term Foster Care

Update, March 23, 11:45 a.m.:

The 5th Circuit Court of Appeals has ruled that the national child advocacy group Children's Rights cannot file its class-action suit on behalf of all 12,000 youth in Texas' permanent managing conservatorship, otherwise known as long-term foster care. The suit was originally filed on behalf of nine children, and attorneys later filed a motion to expand it. 

"We are pleased with the 5th Circuit's decision, as we never believed that the test for class certification was met," said Patrick Crimmins, a spokesman with the Department of Family and Protective Services. "As the Texas agency charged by our governor and Legislature to care for children who have suffered abuse and neglect, we work every day to ensure their safety and well-being."

Original story: 

The national child advocacy group Children’s Rights has successfully sued for better conditions for foster kids in more than a dozen states. Now, the organization is turning its sights on Texas, for allegedly leaving children stuck in long-term foster care.

Children’s Rights filed a class-action lawsuit against Texas officials this morning, alleging, on behalf of 12,000 abused and neglected children in long-term foster care, that the state hasn’t done enough to get kids in state custody into permanent homes. The organization argues that exorbitantly high workloads for inexperienced caseworkers, combined with a lack of foster homes and a reliance on remote care institutions, has created a system in which children are bounced from placement to placement — with little chance at a permanent home.

“Thousands of Texas children have no hope for a decent childhood and are subjected to unconscionable damage while under the state’s protection,” Children’s Rights Executive Director Marcia Robinson Lowry said in a statement. “These children need the protection of the federal court.”

DFPS Commissioner Anne Heiligenstein said Texas foster children are safe, well-cared for and live in a system recognized for "finding thousands of loving, adoptive homes each year." The suit comes as state child welfare workers are designing an overhaul of Texas’ foster care system that would emphasize getting children in state custody permanent families, keeping them together with their siblings and finding them placements as close to their home communities as possible.

"Our children benefit from comprehensive reform and more than $1 billion in additional funding during the last several years," she said. "We're on the right path and will continue to do everything we can to protect Texas children, but I worry that a lawsuit like this will take critical time and resources away from the very children it presumes to help."

The Children’s Rights lawsuit, M.D. v. Perry, filed in conjunction with the Texas law offices of Haynes and Boone, Yetter Coleman and Canales & Simonson, accuses the Texas Department of Family and Protective Services of violating children’s constitutional rights by keeping them in foster care for more than a year without returning them to their families or finding them permanent homes. Currently, DFPS caseworkers have up to 18 months to reunify children with their biological families or find them adoptive homes; if they don’t, the child moves into “permanent managing conservatorship,” which advocates argue has become a no man’s land for older foster kids.

Among the suit’s plaintiffs? A 16-year-old girl who entered foster care at age 6 and changed placements 28 times within four years. And a 14-year-old girl who entered foster care at age 5 and has had 12 different caseworkers and 24 different placements.

Children’s Rights officials say that as of 2009, children in permanent foster care for more than three years moved an average of 11 times. As of March 2010, 75 percent of children living in institutional “residential treatment centers” were in permanent foster care. And as of May 2010, roughly 500 children had been in foster care for more than a decade.

“We believe it is our responsibility to stand up and give these voiceless children an opportunity to be heard and protected,” said Barry McNeil, a partner with Haynes and Boone and co-counsel in the suit. 

DFPS officials have their own statistics. They say the percentage of children who are safe in care — a federal benchmark — has increased in Texas from 99.4 percent in 2005 to 99.9 percent in 2010. During the last six years, they say, the Texas Legislature has approved more than $1 billion in additional funding for Child Protective Services. And caseloads for foster care caseworkers have steadily decreased, from 40.4 in fiscal year 2005 to 29.5 in fiscal year 2010.

Meanwhile, adoptions increased more than 50 percent, from 3,173 in fiscal year 2005 to more than 4,800 in fiscal year 2010. And placement of foster children with relatives has increased by 38 percent since fiscal year 2006.