More than a decade into a federal lawsuit aimed at repairing Texas’ beleaguered child welfare system, U.S. District Court Judge Janis Jack has laid into state leaders anew, using words like “incompetence” and “negligence” to describe their care of the state’s foster children.
Conditions on the ground discussed at a virtual hearing Tuesday focused on the vast number of foster children that the state’s Department of Family and Protective Services (DFPS) has been unable to find safe homes for, instead housing them for weeks at a time in social workers’ offices, hotels and other unlicensed and ill-equipped settings. The problem, according to experts studying the issue, has been steadily growing for years and hit a crisis point in July, affecting 416 kids that month alone.
“The numbers of children in Texas that are cycling in and out of these unlicensed placements is just really unacceptable,” said Judith Meltzer, president of the national nonprofit Center for the Study of Social Policy. “There are roots of this problem that go back many years, and they reflect the need for fairly significant, systemic reforms.”
A set of recommendations generated by a panel of independent child welfare experts including Meltzer led Tuesday’s hearing. The expert panel is calling for a reduction in reliance on congregate care, increased access to mental health care and greater resources for community-based services to keep kids safe in family homes.
Absent such investments, foster children housed in office buildings, hotels and unlicensed rental units staffed by child protection workers have been subject to dangerous and chaotic conditions that recreate trauma rather than helping children heal, according to court-appointed monitors who conducted on-site visits and interviews.
“They were subjected to sex with hotel staff members,” Judge Jack said, emphasizing the tragic failures cited in the monitor’s report released Monday. “They were tased by security officers hired by DFPS to stay at these unlicensed placement areas. Two 13-year-olds were pepper sprayed, children were slapped. This is what happened.”
Many of the children interviewed were not enrolled in school, and staff often did not know where they were. Medications were inconsistently administered and sometimes not provided at all. After a new law passed in June that barred foster children from sleeping in offices, the child welfare department leased private homes, some of which were directly adjacent to abandoned, blighted buildings with broken windows and covered inside and out with graffiti.
Key among the experts’ recommendations — immediate fixes
Recommendations by the expert panel, which also includes Ann Stanley, a managing director for Casey Family Programs, and Paul Vincent, an independent consultant who formerly led reforms in Alabama’s child welfare system, are not legally binding. But commissioners with the Department of Family and Protective Services and the Health and Human Services Commission indicated their intention to cooperate with the proposals.
After years of a contentious lawsuit and the deteriorating conditions for children, advocates and child welfare professionals told The Imprint they were encouraged by the concrete, evidence-based path forward provided by the expert panel.
“We now have clear next steps that DFPS, the Legislature, and the Governor can take to make sure that kids in foster care can live with a foster family or an aunt and uncle instead of sleeping in an institution or a CPS office or a dangerous, unlicensed foster home,” Kate Murphy, senior policy associate with Texans Care for Children, said in an email.
Expanding mental health services
According to the expert panel’s research over the past six weeks, the vast majority of children who lacked placements are older youth, most deemed to have higher needs due to behavioral or mental health concerns.
In November, nearly a quarter of the 236 children without placements had been released from psychiatric hospitals with no discharge plan in place. Eighteen percent had run away from their previous placement, and 17% were coming out of group homes or residential treatment facilities and their social workers had failed to find a new home for them.
Expanding mental health care options is “essential to solving the problem of children without placement,” the experts reported to the court. That could also address children coming into foster care because their parents can’t handle their mental and behavioral health needs: Since 2017, 4,661 Texas children have been relinquished to foster care because they were unable to access services and supports within their families, the report states.
The expert panel recommends tapping into a Medicaid funding stream to provide mobile crisis intervention services and applying for a Medicaid waiver to fund community-based mental health services to prevent the need for children to be hospitalized or placed in residential care.
They also recommend the state expand an existing program serving families at risk of relinquishing their children to foster care.
In response, on Tuesday, Judge Jack ordered the commissioners of the Department of Family and Protective Services and the Health and Human Services Commission to devise a plan to expand mental health services within 90 days.
Curbing congregate care and out-of-state placements
With news spreading that children are sleeping in hotels and offices, child welfare authorities and foster care providers say part of the problem is heightened scrutiny on residential group facilities, and the resulting closures of such facilities. Prior to the court hearing, the state submitted plans indicating their intent to build back group home capacity, in contrast with nationwide moves against such settings for foster youth.
At Tuesday’s hearing, Judge Jack and the expert panelists soundly countered that plan.
“We think the solution to the problem is not more congregate care,” panelist Meltzer said. “There is an overemphasis on the use of congregate settings, and I have a real concern about that.”
Jack was more biting in her rebuttal: “There isn’t a single expert in the field of child protection that recommends congregate care except in exceptional circumstances. Yet here we are struggling in this situation, with a department that not only believes in congregate care for whatever reasons — for the private, for-profit congregate care people, for the not-for-profit congregate care people and the lobbyists they support — and it’s just a chain.”
Jack also hammered the agency for its failure to comply with the federal Family First Prevention Services Act, which strictly limits group care to instances of clinical necessity, and requires it be provided only on a limited basis, in vetted and licensed “quality residential treatment programs,” or QRTPs.
By failing to meet these new standards, which took effect in October, Texas is forfeiting $43 million in federal funding over the next two years, the visibly angry judge pointed out multiple times.
The experts and the court urged the department to move more quickly toward implementing Family First by bringing local treatment centers up to standards or attracting new providers already licensed to run QRTPs to develop programs in Texas.
In their report, the panel also raised concerns about the state’s increasing reliance on out-of-state placements to house children they struggle to find local foster homes for. They note that the Department of Family and Protective Services spent $2.9 million between January and October of last year placing these children in out-of-state facilities.
“When we talk about redirecting resources to services in the community to support families, that’s one of the ways you can get the funds you need,” Meltzer said, “by limiting these really expensive, not helpful and frequently very dangerous out-of-state placements.”
Jack ordered the department to develop a plan to bring children back from out-of-state placements within 90 days. Within 30 days, the department must determine if they can implement the experts’ recommendation to establish community liaisons tasked with finding a way to move children out of congregate care settings and into families.
The expert panel also laid out recommendations for avoiding foster care placements outside of family networks, life disruptions that can cause youth to flounder. Members said the state needs to raise the pay for relatives caring for foster youth: Right now they receive $11.55 per day, regardless of the child’s level of need, while non-relative foster families are paid anywhere from $47.37 to $92.43 per day.
The panel reported that relatives should be the first choice to care for foster youth, under an intensive “family finding” program. Utilizing Title IV-E federal funds to provide kinship navigators was noted as a short-term fix that could help strengthen those placements.
At Tuesday’s hearing, Judge Jack issued a stern warning to DFPS Commissioner Jaime Masters, who suggested her resources to implement all of the recommendations may be limited.
“The constitutional rights that have to be protected of these children are not driven by monetary factors. Money is not an issue for these factors,” Jack said. “You must comply with safe placements, period. I’m going to have to start doing contempt — I’m going to do it in the next month if we don’t get some response here.”