A 13-year-old boy who was overmedicated with eight psychotropic drugs and a 16-year-old girl who has moved more than two dozen times since entering foster care are the latest examples of vulnerable Texans turning to the federal courts for help.
Much like previous groups reliant on state care – those with mental illness, intellectual disabilities and prison inmates – the more than 12,000 children in Texas’ long-term foster care system are seeking federal judicial oversight to improve their care.
If M.D. v. Perry turns out anything like blockbuster cases RAJ, Lelsz or Ruiz, the state could be in for a years-long takeover of its foster care system.
U.S. District Judge Janis Graham Jack of Corpus Christi will begin hearing the case today. The suit was brought in 2011 by national advocacy organization Children’s Rights, as well as Yetter Coleman and Haynes and Boone, which partnered up on the case on a pro bono basis.
“The case is seeking critical reform to meet the most basic needs of 12,000 of our own children who are lacking the means to a system that can provide them a safety net and childhood that is not subjected to a constant risk of harm,” said Dori Goldman, a partner at Yetter Coleman in Houston and one of the lead attorneys on the case.
“Too often children at 18 are discharged from the care of the state and have no basic skills,” said Barry McNeil, who is leading Haynes and Boone’s involvement in the case. “They’ve never driven a car, have never gone to the grocery store, and don’t have a family to support them, so they’re essentially hopeless.”
The plaintiffs’ lawyers claim the system is underfunded, mismanaged and has major deficiencies that deprive the children of their constitutional rights by exposing them to unnecessary harm. The all-too-frequent result, they say, is children become lost in the state’s system, growing up socially unequipped for the real world and without a real home, family or even social worker who provides adequate time or support for them.
The children’s lawyers are asking Judge Jack to provide oversight of the state and order improvements to the system, such as limiting the caseloads of social workers to levels that meet national professional standards.
According to the lawsuit, 55 percent of caseworkers serving the state’s long-term foster care system on Aug. 31, 2011 had more than 30 cases assigned to them and 24 percent had more than 40 cases. Professional standards set by the Child Welfare League of America recommends that caseworkers only have caseloads of 12 to 15 children on their plate at one time.
The lawsuit names Gov. Rick Perry and the leaders of Texas’s Health and Human Services Commission and Department of Family and Protective Services as the defendants.
Lawyers from the attorney general’s office, which represent the state, declined to comment on the case.
But in an email, Patrick Crimmins, a spokesman for DFPS, said “nothing is more important than the safety of the children entrusted in our care and finding loving, permanent homes for them.” He added that the number of adoptions in Texas has doubled in the last 10 years.
“We are continuously striving to improve our foster care system, with regular support and oversight from the Texas Legislature,” he said.
History of Federal Involvement
Texas has a long history of federal involvement in major state systems. Two 1974 lawsuits led to the restructuring of state mental hospitals and state schools for those with intellectual disabilities. A hand-written complaint by a prison inmate resulted in federal control of the state’s prison system for 30 years.
RAJ v. Gilbert, the case involving institutions for individuals with mental illness, prompted federal oversight for 23 years. The state agreed to provide patients with individualized treatment and changed procedures such as shock therapy and physical restraints.
Lelsz v. Kavanaugh led to the closing of two state schools that housed individuals with intellectual disabilities such as cerebral palsy or Down syndrome and increased spending on other centers. The case was dismissed in 1995, but 10 years later the U.S. Department of Justice investigation found that poor medical care and understaffing may have contributed to deaths in the facilities, now called State Supported Living Centers. Under a 2009 settlement with the state, the facilities are subject to independent monitors who report conditions to the state and DOJ.
The most famous federal takeover was Ruiz v. Estelle. After more than three decades and billions of dollars in new construction, Texas prisons were transformed from brutally overcrowded cellblocks where certain favored inmates exercised control to one of the nation’s largest and most modern systems of incarceration.
Alleged Foster Care System Flaws
When children first enter state custody, they are placed in temporary managing conservatorship (TMC) while the state tries to find them a new, permanent home. If a home is not found within one year, or 18 months with a court’s approval, the children then move into the state’s long-term foster care, known as permanent managing conservatorship (PMC).
Marcia Robinson Lowry, the founder of Children’s Rights, has brought successful foster care reform litigation in many other states, but what stood out to her about Texas was that many of the state’s children essentially “fell off a cliff” after entering the PMC, languishing in foster care for too long.
For example, in 2011, 17.5 percent of children who exited the state’s PMC did so by turning 18 and aging out of the system, rather than being adopted, according to the plaintiffs’ briefings. The average length children stayed in long-term foster care exceeded three years at the end of August 2011. But that same year, more than half of PMC children were legally free for adoption.
“Foster care is not supposed to be permanent for children,” Lowry said, but “Texas has created a system in which a lot of children do grow up” in state custody.
“Not only does this damage a child’s life for not having a permanent family, but the state pays for children who should be with families,” she added. “It’s not even fiscally sound to do this.”
Other structural deficiencies the lawsuit points out include placing children in improper homes and failing to make sure homes are compliant with the standards that license them to house foster children.
Children are often forced to make multiple moves and can be placed in foster care hundreds of miles from their hometowns. More than one-third of children in PMC had moved at least five times while in state custody.
Though two-thirds of Texas foster children also had siblings in the PMC in March 2011, the lack of appropriate placements caused 26 percent of sibling groups to be separated from all their siblings, the lawsuit says.
“Each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem and even a conscience,” the lawsuit says.
McNeil said these grim facts were what caused him and Haynes and Boone to get involved with the lawsuit.
“They shuttle from one address to another, many times seven, eight, nine and 10 times between the time they go into the system to the time they age out. It’s just really heartbreaking when you think about the fact that a child never really has a home or a family.”
State’s Argument
In its briefings, the state denies it is running an unconstitutional system and states that many of the plaintiffs’ statements are inaccurate or legally unsupported.
The state also argues that the plaintiffs’ claims are based solely on the U.S. Constitution, therefore “the rights at issue are those limited rights that derive solely from the federal constitution – not from state law, state policies, state rules and professional standards the state chooses to follow,” one reply brief said.
Because none of the named plaintiffs alleged any individual injuries to their constitutional rights, the state argues their claims are not valid. It also asserts that the plaintiffs have no constitutional right to many of the features the plaintiffs claim the state’s foster care system lacks, such as caseworkers with a defined case load and the oversight, monitoring and compliance enforcement of foster homes.
Goldman said as the team prepared for this trial, one advisory board told her and her colleagues that the Department of Family and Protective Services spends $72 million a year on turnover expenses because 43 percent of the agency’s caseworkers leave the state agency within their first two years on the job.
“It’s expensive and wasteful to run a bad system,” she said. “Running the system the right way will save the money, increase efficiency and provide for safety and well-being of the children.”
Goldman’s Yetter Coleman colleagues Paul Yetter, Lonny Hoffman and Christopher Porter are also on the case. Others on the trial team from Haynes and Boone include David Dodds, Thad Behrens and Amelia Cardenas.
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