© 2015 The Texas Lawbook.
By Natalie Posgate
(May 8) – A district judge heard closing arguments Thursday in Dallas from lawyers for the State of Texas and advocacy group Children’s Rights on how she should provide federal oversight to reform Texas’s long-term foster care system.
Thursday morning’s closings were the denouement of a two-week bench trial that occurred in December after lawyers from Children’s Rights in New York, Yetter Coleman in Houston and Haynes and Boone in Dallas partnered up to bring a class-action lawsuit against the State of Texas to advocate for the more than 12,000 foster children in the state’s long-term foster care system.
The lawyers argue that multiple defects of the system violate the children’s constitutional rights by subjecting them to serious harm.
“It’s been well-known for years that there are major shortcomings in the Texas foster care system,” said Children’s Rights lawyer Sara Bartosz, who delivered the closing arguments for the plaintiffs. “We’re not trying to cure every illness in the system, but we’re seeking to heal those fundamental harms. This court has the discretion to bring supervision.”
Bartosz and her colleagues were not the only ones in the courtroom who expressed this opinion in the courtroom.
“I just know that the whole system is failing the children,” said U.S. District Judge Janis Graham Jack, who is presiding over the case.
Though Judge Jack – who operated the closings in a Q&A, Fifth Circuit-esque manner – also agreed with certain aspects of the state’s argument, she made it clear to both sides that she believes Texas foster children’s constitutional rights have been violated from the shortcomings of the system.
When Bartosz tried to bring up testimony from the trial that revealed some children had been raped by other children in the same group home due to lack of nightly supervision by an adult and lack of reporting and through inspection by the state, Judge Jack interrupted her.
“I’m disturbed by the abuse that goes on among these kids at night. Assume I can remember all of this; in fact, it’s not forgettable,” she said.
“I do think you’re (the State) in constitutional violation… to not record child-on-child rape,” Judge Jack said later on during closings. “What stunned me was the state did not recognize the constitutional right. If it wasn’t recognized, that’s an institutional problem.”
Throughout the case, the plaintiffs have argued that a major flaw of the system is the overburdening of the state’s caseworkers, 43 percent of whom leave the Texas Department of Family and Protective Services within two years after their starting date.
In her closing arguments, Bartosz requested that Judge Jack order DFPS to conduct a statewide, extensive caseworker study and appoint a special master to oversee it to make sure the study is “sound.”
In the meantime, Bartosz’s colleague, Marcia Robinson Lowry, recommended Judge Jack to order the caseworkers to have no more than 25 children at one time. As of Aug. 31, 2011, 55 percent of Texas caseworkers had more than 30 cases assigned to them and 24 percent had more than 40 cases.
Judge Jack raised the point that this alternative appears to set a major delay in finding a solution to bettering the system.
“Do I issue a final order two years down the road based on the special master’s findings?” she asked.
Tom Albright of the Texas Attorney General’s Office jumped on this opportunity during his closing argument on the state’s behalf.
“This whole idea is postponing [action],” Albright said. “The plaintiffs have the burden of proof to say [what needs to happen] now.”
He also argued that the proposed study is irrelevant to the case as a whole.
“The workload study is not the issue of this lawsuit,” he said. “The lawsuit is about the minimum requirements of [the state fulfilling] the 14th Amendment rights [of the children].”
Another state argument throughout the trial was that while the individuals named in the lawsuit all had tragic stories, there was insufficient evidence to prove class-wide injury, and that many children in the state’s long-term foster care system were in good situations – assigned to a caseworker who maybe only had eight cases at one time.
The reason for insufficient evidence of class-wide injury, Albright argued, was because the plaintiffs did not find an expert witness to provide an in-depth examination of the entire class of children in the state’s long-term foster care, known as permanent managing conservatorship (PMC).
“Rule 23(b) requires plaintiffs to come to you and say, ‘here’s the solution,’ “ he said. “They had three years and didn’t bring you an expert… now they’re asking you to do their job, which they have utterly not performed.”
There was no clear indication of when Judge Jack will issue her opinion, for she is reviewing 300,000 documents from the case to help make her decision.
During rebuttal, Lowry urged Judge Jack to make the right decision.
“The court has enormous, equitable and legitimate power should it find the constitutional violations that we urge the court to do,” said Lowry, who is the founder of Children’s Rights. “[The children] are dependent upon you to use your powers to come up with the appropriate remedies.”
Among those in the courtroom was DFPS Commissioner John Specia, who Judge Jack commended for his efforts but was quick to point out that he is the agency’s seventh commissioner since 2001.
In addition to Bartosz and Lowry, the plaintiffs’ trial team included Dori Goldman, Paul Yetter, Lonny Hoffman and Christopher Porter from Yetter Coleman and Barry McNeil and David Dodds from Haynes and Boone.
For more background information on the case, click here to read an earlier in-depth report from The Texas Lawbook.
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