Calling the lack of compliance “stunning,” U.S. District Judge Janis Jack again held Texas in contempt of court Friday for failing to comply with court-ordered reforms of the state’s foster care system. This follows nearly a decade of litigation in the federal courts, which found Texas to have violated the rights of children in its long-term care.
“Every time I make an order, they come up with another excuse not to follow it or they don’t understand it,” the judge said as she made the ruling during a virtual hearing. “Contempt is my remedy here.”
This isn’t the first time Jack held the state in contempt. Last year she issued a similar ruling, with a $150,000 fine imposed upon Texas’s Department of Family and Protective Services (DFPS).
“We’re now nine years into litigation, six years after trial and a year after remedial orders went into place,” said Paul Yetter, an attorney for children in the case, at the hearing. “Frankly, Your Honor, the time is up. The system needs to be fixed and it is high time for these children to become a priority one in the state of Texas.”
Jack’s orders for reform, which were appealed and affirmed in part by the Fifth Circuit Court of Appeals, have been in effect for more than a year. But court-appointed monitors found in June that the state still had failed to comply with multiple orders, including failures at every level of the investigations process involving allegations of abuse against foster children.
“The Texas child welfare system continues to expose children in permanent managing conservatorship to an unreasonable risk of serious harm,” the report found.
Jack, who has been outspoken in her criticism of the state for years, had particularly harsh words for Jean Shaw, the associate commissioner for childcare licensing at the Texas Health and Human Services Commission, the agency that licenses institutional placements. Jack had ordered the licensing agency to provide reports with a detailed history of prior infractions before investigators were sent to look into a new report of abuse or neglect, but was frustrated by lack of follow-through.
In response, Shaw testified that the agency did not have the correct technology to implement this policy until Aug. 31 – the very week of the Friday hearing – despite the court order being in effect for more than a year.
“You knew what the order meant, you just refused to do it,” the clearly exasperated judge told Shaw. “This is just stunning. This is just an entity that does not care about what they’re doing and does not care to follow the court’s order.”
Children’s attorney Yetter and Jack zeroed in on an instance of a teen’s death earlier this year that the monitors found could have been prevented. A 14-year-old girl at a facility called Prairie Harbor in Wallis, Texas, died of a pulmonary embolism after complaining of leg pain for weeks.
The young teen had multiple risk factors for an embolism, including hypertension, diabetes and use of birth control pills, but her leg pain went untreated until she collapsed one night in February. According to court documents and testimony, staff members waited more than 30 minutes to call 911, believing they needed to get approval from their supervisor to do so.
“And then she died, and everybody – the staff there – watched her die,” Jack said at the hearing.
Testimony from residential child care investigations made clear that several key people have yet to be interviewed in the still-open case – including the teen’s doctor and the staff members who documented her leg pain.
Over the past five years, Prairie Harbor had received 145 citations, including 16 which resulted in serious harm to children. And although DFPS said it terminated its contract with Prairie Harbor, last year the state’s licensing agency granted its owners a license to open a new facility called The Landing in Corpus Christi.
“Why on earth wouldn’t you hold the institution responsible?” Jack asked the head of Residential Child Care Investigations, in attendance at the Friday hearing.
Other signs of the state licensing agency’s shoddy supervision was also called out in court this week. Since the death of the teen, Prairie Harbor has been granted permission to operate with a 1:6 staff-to-child ratio, instead of the state’s mandated guideline of 1:5.
Shaw explained the need to the court, citing coronavirus-imposed changes: “The pandemic has put a lot of facilities at risk of not having enough staff,” she explained.
The judge appeared unsympathetic, noting the result. “It’s put a lot of children under your care at risk,” she replied.
Jack also took issue with the lack of consequences for facilities found to have allowed abuse and neglect of children in their care.
Shaw testified that just one facility has had its license revoked in the past 10 years. Some facilities in danger of being shut down have been allowed to voluntarily suspend their own license, rather having their licenses revoked, making it easier for the operators to open new facilities in the future.
Jaime Masters, the DFPS commissioner appointed last December, agreed with Yetter and the judge that many of the issues raised in the monitors’ report were concerning, and said she plans to address the findings directly.
Yetter – who had described some of the witnesses’ responses as “obstinate, evasive, untruthful, and uncooperative” – called Masters’ pledges “refreshing.”
Still, Jack was unmoved. She told Kimberly Gdula, the assistant attorney general arguing for the state, that the state’s foster care agency will have time to fix problems and come into compliance, and if it does so by the next compliance hearing, “it may not result in anything punitive at all.”
The state’s licensing agency, on the other hand, “is a different kettle of fish,” Jack said, adding that she will consider immediate financial sanctions against it for egregious violations. “I’ve never seen such an arrogant disregard of the court’s orders.”
