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Federal Appeals Court Orders Fixes To Texas' Foster Care System

David Schexnaydre via Flickr (CC BY-NC 2.0)

A federal appeals court has ordered Texas to make significant changes to improve its foster care system.

A three-judge panel at the Fifth Circuit Court of Appeals issued a ruling Monday in the long-running class action lawsuit that revolved around the treatment of children in permanent managing conservatorship. These are children who are neither reunited with their biological families nor adopted out of the system. Instead, they remain in the state’s custody until they age out of foster care.  

Texas had appealed a lower court’s order in 2018 that called for a wide arrange of fixes to the foster care system. Judge Janis Graham Jack had earlier ruled the system unconstitutional, dubbing it “broken.”

The judges kept some portions of Jack’s order. One step they ruled the state must take is to ensure all foster group homes have “24-hour awake-night supervision.” The state will not have to cap the number of kids in that type of placement at six, however, as Jack had ordered.

The three-judge panel is also calling on the state to take steps to reduce the workloads of Child Protective Services caseworkers. The unanimous decision, written by Judge Edith Brown Clement, describes the workload as “crushing.” The state was ordered to conduct studies to determine internal guidelines for what a reasonable caseload is; Jack will monitor that process, despite objections from the Texas Attorney General’s Office.

“The district court undoubtedly has the equitable power to oversee compliance with its own injunction,” Clement wrote.

The state will not have to buy a new integrated computer system, however. The system would have contained the records of all children in permanent managing conservatorship, such as health care and educational records, as well as placement recommendations and court and caseworker records.

"The multimillion-dollar computer-system overhaul – while maybe a best practice – goes well beyond what is minimally required to remedy the caseload and oversight violations," the court said.  

In a partial dissent, Judge Patrick E. Higginbotham said the judges should have upheld more of the lower court’s decision.

“With this agency the devil is in the details, and the district court structured a remedy with particularized provisions, responsive to its detailed factual findings and focused study,” he wrote.

Texas Attorney General Ken Paxton and the two New York-based advocacy groups that brought the lawsuit could still appeal.

After Monday's ruling, state Sen. Kirk Watson, an Austin Democrat, asked why it was so hard for the state to do right by these children. 

Another Austin Democrat, state Rep. Donna Howard, shared a similar reaction on Twitter.

Stephanie Rubin, executive director of the statewide advocacy group Texans Care for Children, said the ruling “sends another clear message that Texas will continue to violate the constitutional rights of children in foster care until the state significantly decreases caseloads and improves the monitoring and safety of these vulnerable children.”

Rubin also raised concerns about the financial resources Texas has expended to fight the original court ruling “as though all is fine for kids in foster care.”

"There is abundant evidence that many abused and neglected children are traumatized again while in the state’s care," she said.

The Dallas Morning News reports Texas has spent at least $9.7 million fighting the class-action lawsuit.

Becky Fogel is the education reporter at KUT. Got a tip? Email her at Follow her on Twitter @beckyfogel.
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