At a tense hearing today, an exasperated U.S. District Court Judge Janis Graham Jack rebuked Texas child welfare leaders yet again, calling them “callous” and saying they do more to protect their bureaucracy than the children in their care.
“There are children dying and being injured on your watch,” Jack told leaders and staff of the state’s Health and Human Services Commission and the Department of Family and Protective Services (DFPS). “You want to protect the providers and not the children.
“This is a pattern.”
Today’s hearing continues the multi-year federal court oversight stemming from a 2011 lawsuit and subsequent 2015 trial in which Jack found Texas to be violating the constitutional rights of foster children. As a result, court monitors must file regular reports to the judge about the agencies’ compliance with court orders.
At these public hearings — today attended by as many as 850 participants over Zoom — Jack has grown increasingly irate. This hearing centered on the state’s failure to properly monitor residential centers for foster youth.
According to the court monitors’ most recent report, the state’s Health and Human Services Commission — which is responsible for regulating licensed foster care facilities — had removed the “heightened monitoring” status of some residential foster care facilities, even when there were ongoing violations. Heightened monitoring involves an increased level of oversight to repair an established pattern of safety violations. The report to Jack found facilities had been removed from increased vigilance despite failing to provide sufficient medical care, maintain disciplinary standards and keep proper records.
“You take people off heightened monitoring that have a history of abuse and neglect. I am flabbergasted on behalf of these children,” Jack said. “It takes such a callous mind and a callous operation to interpret the heightened monitoring standards to take these facilities off when the children are still at risk.”
Paul Yetter, an attorney for the children, called the facilities under heightened monitoring the “riskiest of the risky” organizations within the state’s many residential facilities. These group settings for foster children, described as treatment centers, have fallen under harsh scrutiny for years, amid allegations of abuse and neglect.
At today’s hearing, leaders of state agencies insisted children’s safety is their top priority. As they answered Jack’s questions, they tried to paint a nuanced picture of Texas’ child welfare world.
Cristina Guerrero, who handles contracts between the state and private foster care agencies, said in some cases, the state’s oversight teams are working to remedy violations before a citation is issued, making it seem as if the time period between the violations and the release from oversight was short.
But Jack pointed to cases such as Houston’s Ascension Child and Family Services, where problems of cockroach and rat infestations in the children’s living quarters were flagged just two weeks before the facility was taken off “heightened monitoring” status.
“When you all step up to the plate and admit your errors, then you can fix them. Until then, it’s not going to work.”
— Judge Janis Graham Jack
She also critiqued how the state investigates conditions, noting that state workers have continuously downgraded the risk of harm in troubled residential centers. In one case she cited, a 12-year-old rifled through a closet where staff kept children’s belongings and obtained a BB gun from a staff member’s bag. The incident was labeled a “priority 3” investigation, involving “minor violations of the law or minimum standards that involve low risk to children.” Court monitors and the judge stated that such an incident should have been investigated as a higher priority — involving a “serious safety or health hazard.”
In another case discussed in court, a teenager who had a history of self-harm had obtained a razor and cut herself 100 times over the course of three days. She was bleeding through her clothing before staff noticed and brought her to a psychiatric hospital. The investigation into the facility’s handling of that incident was given a “minor violations” label, and not sufficiently investigated, according to the court monitors’ report.
Jack, clearly frustrated with the state officials, emphasized the significance of misclassifying the level of risks in each investigation.
“If the child stays there after knowing they have complained or been the subject of complaint, when you get around to interviewing them three weeks later, what do you think they are going to say? ‘No, I guess it didn’t happen,’” Jack suggested. “Does this concern you at all?”
Aside from continuing to issue orders for the state to come into compliance with the court, it’s unclear what Jack will do next.
Lawyers for the plaintiffs — all children under the long-term care of the state — have asked the court to hold Texas in contempt for continuing to place foster youth in unlicensed shelters such as hotels and churches, for mismanaging their medication and other violations. Jack has not yet ruled on that issue, but she has held the state in contempt of court on two occasions in the past, ordering fines of $150,000. She could do so again at a hearing in several months.
Jack expressed concern and skepticism that the state will ever reach compliance and be released from court oversight.
“I’m not sure how you’re ever going to get out of monitoring with this attitude,” she said sternly to the state agency staff, admonishing them for not being able to recognize their failures. “When you all step up to the plate and admit your errors, then you can fix them. Until then, it’s not going to work.”
The federal judge also took issue with the state’s capacity issues, as the child welfare agency continues to place children in hotels, churches and other unlicensed placements that are “without sufficiently trained caregivers to monitor and care for children who are under DFPS Supervision,” the court monitors stated.
“You want to protect the providers and not the children. This is a pattern.”
— Judge Janis Graham Jack
From April 1, 2022, through March 31 of this year, 614 children experienced at least one night in one of the unregulated placements — which averaged between 60 and 80 children per night. That average increased to 100 children per night in May, the Imprint reported earlier this month.
Jack also took issue with the use of state law enforcement for security in the hotel rooms – to the tune of $17 million per year.
Yetter, the attorney for the children, pointed out that staff in residential treatment facilities are not allowed to use stun guns, pepper spray or put children in handcuffs. But that has all happened to children in unlicensed placements. The kids in such settings often have complex treatment needs, and must be with staff who can properly care for them, Jack noted.
Erica Bañuelos, an associate commissioner for Child Protective Services, acknowledged that there have been some instances of handcuffing and pepper spray in some locations, but she added that it’s not the norm.
“If you’re spending $17 million for armed guards, it’s going to become the norm,” Jack countered. “That’s a concern for the court.”
