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“The Children Even God Has Forgotten”

In her 260 page decision declaring that Texas violated the constitutional right of foster children to be free from “an unreasonable risk of harm,” U.S. District Court Judge Janis Graham Jack quoted another Texas judge to describe what happens to the children that stay in Texas’s care for more than 18 months: “these are the children even God has forgotten.” Since Judge Jack’s December 17, 2015 decision, the Department of Family and Protective Services (DFPS) has been under intense scrutiny. The Court found that children “almost uniformly leave State custody more damaged than when they entered.”

Writing that “Texas’ conduct shocks the conscience,” Judge Jack issued an injunction against the state and appointed a Special Master to assist her in forcing Texas into compliance with the Constitution of the United States. The Court wrote that it “does not understand, nor tolerate, the systemic willingness to put children in mortal harm’s way.”

The Court found that Texas has been “deliberately indifferent” to the welfare of foster children for more than two decades. The Court identified a series of systemic deficiencies including: an insufficient number of caseworkers leading to high case loads and turnover; inadequate reimbursement rates leading to a lack of placements; and inadequate enforcement of rules and regulations pertaining to foster homes.

Insufficient Numbers of Caseworkers

Caseworkers are a child’s “’lifeline,’ their ‘connection to everything.’” An inadequate number of caseworkers endangers children by removing access to the child’s first line of defense against abuse. For instance, in the case of a child identified as J.S., “no caseworker even visited J.S., the month before an alleged sexual abuse in his placement. After the abuse, J.S’s primary caseworker did not visit him for another four months.”

Inadequate Reimbursement Rates

Inadequate reimbursement rates create a lack of placements for children. A lack of placements means children have nowhere else to go. For instance, in the case of a child identified as M.D., she “stayed at a facility for over a year after alleging that a staff member raped her because DFPS ‘didn’t have anywhere else to move her.’”

Lack of Enforcement

A lack of enforcement endangers children because facilities may perceive that they will not be held accountable for poor performance. For instance, despite efforts by the Harris County District Attorney’s Office to shut down the Daystar facility, DFPS allowed Daystar to keep its license for seventeen years. During that time, “three teenagers died at Daystar from asphyxiation…In most cases, the children were hog-tied. Beyond these deaths there were reports of sexual abuse and staff making developmentally disabled girls fight for snacks.”

Next Steps

In the December 2015 decision, the Court set a hearing to appoint the Special Master on January 18, 2016. Texas twice appealed the ruling to the 5th U.S. Circuit Court of Appeals. Twice the 5th Circuit upheld the District Court. The appeals delayed the appointment of a Special master until March 21st, 2016. The Special Master is now due to submit an Implementation Plan to the District Court on September 19, 2016. If adopted by the Court, the Implementation Plan would include the specifics of how Texas must fix its foster care system.

The Court laid out goals for the Special Master in the development of an Implementation Plan in the December 2015 decision. The achievement of many of those goals will require more caseworkers, more investigators, and more placements. More money for those things will be required. Former Judge, and Director of the Children’s Rights Clinic at the University of Texas School of Law, Scott McCown, testified to the House Human Services Committee that the price tag is “several hundred million additional dollars.”

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