Two Texas law firms are one step closer to obtaining what they say are long-overdue reforms to the state’s foster care system after a ruling issued Monday by the U.S. Court of Appeals for the Fifth Circuit.
The ruling, which comes on the heels of the State of Texas’s seventh appeal in a nearly 15-year-old case, affirmed most of the reforms ordered in November by U.S. District Judge Janis Graham Jack of Corpus Christi.
The three-judge appellate panel upheld the critical appointment of a monitor and a 24-hour supervision provision, but it struck down a court-mandated integrated computer system.
The case involves the Texas Department of Family Protective Services and the 12,000 children in the state’s long-term foster care system. With the help of two foster care advocacy groups, Houston-based Yetter Coleman and Dallas-based Haynes and Boone sued the state in 2011 claiming Texas is violating foster children’s constitutional rights due to institutional flaws in the system that subject the children to an unreasonable risk of harm. The two Texas firms are handling the case pro bono.
Yetter Coleman’s Paul Yetter, lead counsel for the children, called Monday’s ruling “another important step forward” in obtaining reform.
“The most important aspect is the Court of Appeals has already upheld a finding that the state was deliberately indifferent to the safety of the children,” Yetter told The Texas Lawbook.
Yetter’s firm has been involved with the case for so long that he can’t recall the exact year they started working on it, but it was either 2004 or 2005.
At the time, the Yetter Coleman firm – now 22 years old – had been in existence for several years and was “looking for big impact pro bono litigation” tied to institutional reform.
“We knew we wanted to be able to give back to the community,” Yetter said. “Institutional reform litigation is tough, complicated and needs a lot of resources, and we felt like we could do it really well.”
When the firm talked to public interest groups around Texas, the broken foster care system was mentioned most often, Yetter said.
“We wanted to give back to the community and this became a glaring opportunity at the time,” Yetter said. “We were more than happy to try it out. I don’t think at the time we even realized how big of a job that would be, but we’ve never looked back. It’s been incredibly gratifying.”
By “coincidence,” Yetter said, New York-based Children’s Rights had its eyes on Texas at the same time as the advocacy group’s next big project to further its mission to protect foster children around the country from the state governments that fail them. Children’s Rights founder and veteran foster care reform lawyer Marcia Robinson Lowry and Yetter joined forces once they discovered that their interests were aligned.
Yetter Coleman and Children’s Rights spent the next several years investigating Texas’s foster care system. They talked to caseworkers, adoptive parents, family law judges and others in-the-know about Texas foster care to identify the main problems with the system.
“All that input helped us focus on a piece of the foster care system that was the most broken, which was the children that stayed in the system over the long-term — the permanent foster children,” Yetter said.
During their several years of investigation, Yetter said, the team also kept an eye on any efforts the state brought to fix the long-term foster care system “on its own” during legislative sessions.
“By 2011 it was clear that the state was not going to fix the problem, so we filed suit,” Yetter said.
Haynes and Boone came on board with the plaintiffs during the year leading up to the March 2011 lawsuit. Barry McNeil, who led Haynes and Boone’s involvement, said Lowry called him after a Children’s Rights board member and longtime friend of McNeil’s recommended that she reach out to him.
McNeil had prior experience taking on the State of Texas in litigation for wrongfully sentencing two indigent Mexican nationals to life in prison for a murder they did not commit. McNeil’s team of lawyers obtained freedom for their clients seven years into the litigation.
McNeil said he needed no further convincing to join Children’s Rights and Yetter Coleman’s efforts once he learned more about one particular aspect of long-term foster care: group homes.
“I still anguish about the group homes, which can have a number of children that are unrelated, boys and girls, different ages — all in one household with frankly minimal care,” McNeil said.
Evidence presented at the December 2014 trial depicted the disturbing environment of the state’s group homes — one that permitted younger children to be repeatedly raped by older children due to lack nightly adult supervision and lack of reporting or thorough inspection by the state.
“The group homes is what did it for me,” McNeil said.
To date, McNeil said, Haynes and Boone lawyers have racked up 7,400 pro bono hours and $3.5 million in legal fees working on the case. McNeil said he and former colleague David Dodds have spent the most time on the case. Dodds left Haynes and Boone in 2017 to serve as a staff attorney for Dallas’ Fifth Court of Appeals.
Yetter said his firm has dedicated about 12,500 pro bono hours on the case so far and $5.8 million in legal fees.
After a two-week bench trial, Judge Jack ruled in late 2015 that the state’s long-term foster care system was “broken” and leave the children in its custody “more damaged than when they entered.”
She later appointed a special master to craft reforms for the system and oversee implementation, and in January 2018, ordered the state to take a wide array of remedial actions based on the special master’s recommendations — such as measures to lower the caseload of overburdened case workers and to improve the investigation and oversight of DFPS.
The state appealed Judge Jack’s remedies. In October 2018, the Fifth Circuit upheld many of Judge Jack’s findings, but found some of them to be overly broad and remanded them for Judge Jack to narrow down. Once she did so the following month, the state again appealed, arguing they were still too overreaching.
In Monday’s 2-1 decision, the Fifth Circuit affirmed four of the seven issues the state appealed (some with added modifications), vacated two and invalidated one of its previous rulings.
“We are encouraged that the Fifth Circuit recognized several key aspects of the district court’s order were an abuse of discretion,” Texas attorney general spokesman Marc Rylander said in a statement. “These rulings would have cost taxpayers many millions of dollars and were not necessary to remedy any constitutional violation. We applaud the Fifth Circuit for rolling back this significant judicial overreach by the district court.”
Rylander said in his statement that the state is still considering whether they will appeal the issues that the Fifth Circuit did not reverse.
Lawyers from the Texas AG’s office who led the case for the state were Assistant Attorney General Tom Albright at the trial level and Assistant Solicitor General Jody Hughes at the appellate level.
Others on the Yetter Coleman team include Dori Kornfeld Goldman, Christian Ward and Lonny Hoffman.
Another New York-based advocacy group founded by Lowry, A Better Childhood, is also involved in the case.
Judge Jack was nominated for her seat in the Corpus Christi division of the Southern District of Texas by President Bill Clinton in November 1993. The Senate confirmed her in March 1994. She assumed senior status on June 1, 2011. Prior to her legal career, Judge Jack was a trained nurse. She obtained her J.D. from South Texas College of Law.
The Dallas Morning News named Judge Jack its 2016 Texan of the Year for her work on the foster care case.
The Fifth Circuit judges joining in on the 13-page majority opinion were Judges Jerry Smith and Edith Brown Clement. Judge Patrick Higginbotham authored a 21-page dissent.
To read the full opinion, click here.
Editor’s Note: The Texas Lawbook will run a full profile on lead counsel Paul Yetter and his firm later this week.