Court orders some fixes in Texas foster care, drops others

DALLAS (AP) — A federal appeals court says Texas must make improvements to abuse investigations within its foster care system and make sure workers have manageable caseloads, but the court also struck down dozens of other measures ordered by a judge.

The 5th U.S. Circuit Court of Appeals issued the ruling Thursday in a years-long case focused on children in the state’s long-term care. U.S. District Judge Janis Graham Jack had ordered sweeping changes earlier this year. Jack’s order followed a December 2015 opinion in which she ruled the system unconstitutionally broken and said children labeled permanent wards of the state “almost uniformly leave state custody more damaged than when they entered.”

The appeals court judges said they understood Jack’s frustration with the state failing to fix problems and agreed that “remedial action is appropriate.” But the judges said her order went “well beyond” what’s necessary for constitutional compliance.

So while the appeals court said Texas was “deliberately indifferent” to the risk of harm posed by high caseloads and ordered the Texas Department of Family and Protective Services to come up with guidelines for manageable caseloads, the judges nixed Jack’s instruction for all sexualized children — either aggressor or victim — to be placed in a single-child home. They also disagreed with her elimination of foster group homes, which allowed a total of 12 children, including the caregivers’ own, in a home.

The appeals court noted the state has “repeatedly refused” to work on corrective policies with experts appointed by Jack to craft reforms. The appeals court also writes that Texas “has had a wealth of information at its disposal detailing the structural deficiencies in its foster care system” since long before the lawsuit was filed and “it has failed to take meaningful remedial action.”

The case was filed in 2011 by a New York advocacy group, Children’s Rights, along with Texas lawyers on behalf of about a dozen current and former foster youth. Unlike most states faced with such lawsuits, Texas fought it instead of settling. During a trial in the class-action lawsuit in 2014, former foster children testified of abuse they suffered as they were shuffled from placement to placement.

The lead lawyer for the youth, Paul Yetter, called the appeals court ruling a “huge win for Texas children,” saying the changes to caseloads and improvements in abuse investigations will make a difference.

“The trial court was trying to fix a very broken system and methodically went through every aspect of the system, suggesting common sense, important changes,” Yetter said. “The court of appeals took a much higher level view and upheld the trial court on her basic findings but said that the more specific remedies, even if they are commonsensical, would be something that the state needs to handle.”

Kayleigh Lovvorn, a spokeswoman for Texas Attorney General Ken Paxton, says, “While the program still faces challenges, the Fifth Circuit upheld significant parts of the program as constitutional while finding that the district court engaged in judicial overreach in entering an overbroad and impractical injunction.”

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