In 2011, Children’s Rights, a New York offshoot of the ACLU, filed a federal class action lawsuit against Texas, claiming to represent the interests of a subset of the state’s foster children. This month a federal court in Corpus Christi issued a final order in the case. The ruling threatens hard-won reforms to the state’s foster care system.
The lawsuit was just the latest in a rash of foster care litigation orchestrated by the American Civil Liberties Union against states. Other states have settled, perhaps hoping for quick resolution to an uncomfortable fight with an organization that claims for speak for foster children. But after years or even decades under federal court control, most have come to regret this decision – including Connecticut, Maryland and Ohio, whose foster systems have suffered through a combined century of federal control.
Unlike other states, Texas refused to surrender its foster care system to an unelected, unaccountable federal judge. Rather, it went to work solving its own problems. The Department of Family and Protective Services adopted not only new leadership but a new leadership philosophy, which has improved agency morale and worker retention.
The legislature convened interim hearings and appropriated emergency funding to hire more caseworkers and to increase their pay. Gov. Abbott designated foster care reform as his first emergency item in the 85th Legislative session, giving related legislation special priority. Legislators worked hard to pass dozens of bills not only improving but also transforming the Texas child welfare system. Many passed unanimously.
Some of the new laws, which are already in effect, increase and support relative placements of kids in foster care, increase DFPS accountability by completely overhauling the structure and chain of command, and totally change the foster care paradigm.
The Legislature recognized that bureaucratic distance between foster children and DFPS decision-makers in Austin resulted in slow and ineffectual responses to children’s needs. Therefore, the legislature increased the role of communities in caring for and managing local foster kids. The new model, called Community Based Care, is already being implemented in several communities, with more coming online soon.
Despite the state’s efforts and early signs of improvement, Children’s Rights pressed forward with the litigation. The case went to trial in 2014 before Judge Janis Jack, who issued a blistering screed in December 2015, finding the state’s foster care system to be unconstitutionally broken and appointing two out-of-state experts to craft a rehabilitation plan. It took the experts two years to issue their recommendations.
This month, Judge Jack finally issued her ruling in the lawsuit – more than three years after trial. The 116-page order is a potpourri of 99 disjointed injunctions, many of which are incompatible. For example, the ruling requires DFPS to quickly add dozens of foster homes in each geographic area and, at the same time, to immediately close group foster homes, which care for dozens of children.
When the order was issued last month, 44 injunctions took effect immediately, including the closure of group homes, which would have instantly displaced dozens of children and separated them from siblings, schools, and caregivers. The same judge who describes Texas foster care as “broken” seemed oblivious to the shockwaves her incendiary ruling would cause in a system that is only recently showing signs of life.
As DFPS made plans to shuffle foster children between homes, Texas Attorney General Ken Paxton appealed the decision to the Fifth Circuit Court of Appeals, which issued an emergency order temporarily suspending Jack’s ruling from taking effect.
It is likely that Jack’s ruling will be overturned on appeal. Texas foster children can only hope so. In the meantime, Texas will continue to implement the reforms it chose for itself through its elected officials, rather than those forced upon it from on high.