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December 10, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

All eyes in Texas’ child welfare and foster care agency are fixed on a Corpus Christi courtroom where federal Judge Janis Jack is expected to rule soon on a civil rights lawsuit that may have long-term, expensive and sweeping implications for the agency and the kids in its care. Read about it here (Texas Tribune, 12/9/15).

The class action lawsuit was filed in 2011 by the New York-based advocacy group, Children’s Rights, Inc. It claims that the Lone Star State systematically violates the rights of children who’ve been abused or neglected in long-term foster care.

    ‘The class-action lawsuit, brought by the New York-based advocacy group Children’s Rights, Inc. on behalf of children currently in long-term foster care, argues that Texas caseworkers are assigned too many children for them to effectively monitor and that kids are placed too far away from home into settings where they do not get appropriate care.”

That of course is less an argument than a fact. Those were among the many shortcomings found by the independent audit of Texas Child Protective Services conducted in 2014 by The Stevens Group. The grave lack of caseworkers and the resulting caseloads that far exceed industry standards, along with high turnover of personnel and confusion about CPS policies all characterized the audit’s findings. That, along with caseworkers and supervisors lying under oath, destroying evidence and obstructing justice, plus the mysterious disappearance of 655 dead children from agency files have put CPS under a microscope.

Now, just because there are serious deficiencies in the way the agency is run doesn’t mean the kids’ civil rights have been violated. Children’s Rights would need to demonstrate to the judge that doing so constitutes a policy or practice by CPS itself. Given the state’s long and well-documented history of too few caseworkers and too-high caseloads, as well as the Stevens Group audit, that would appear to be an evidentiary slam-dunk for the plaintiffs.

But, while judges are tasked with hearing the evidence and impartially applying the law, other considerations sometimes enter into their decision-making process. And this lawsuit may be Exhibit A for just that.

The suit not only asks Judge Jack to find civil rights violations, it asks her to do something about them. It asks her to enjoin the agency from continuing to violate children’s rights by understaffing, etc. As a practical matter, that means the plaintiffs are asking a federal judge to do things like set staffing levels, salary levels, education and experience levels for caseworkers, and probably much more. In short, it asks her to manage the agency, or at least give a thumbs-up or thumbs-down to all significant agency decisions.

If you’re a federal judge, do you want to do that?

Back in the 1970s, exactly that occurred regarding Texas’ penal system. The federal Judge William Wayne Justice issued sweeping orders that effectively placed him in the position of micromanaging prisons throughout the state. That won him the enmity of many state officials, but far worse, it saddled him with overseeing the prison system for many years to come ruling on all sorts of minutiae about which he had neither the time nor the background required.

I’m sure that Judge Jack is looking at Justice’s experience and thinking “there but for a bit of judicial restraint, go I.” So, however badly the state treats its most vulnerable citizens, my guess is that Judge Jack won’t see managing a foster care system of 28,000 kids and 8,000 employees to be in her job description.

Understandably, lawyers for the state don’t hesitate to remind her.

    “Lawyers for the state have also argued the lawsuit is misplaced because it "would effectively require the court to take over and administer Texas' foster care system," when that responsibility should fall to the Texas Legislature”.

But even if Jack declines to appoint herself overseer of CPS, her order can still have far-reaching consequences.

    “Children’s Rights asked U.S. District Judge Janis Jack of Corpus Christi to order CPS to take steps such as hiring more qualified caseworkers and setting lower caseload limits. The lawsuit also calls for the state to quit placing children with no special needs in more restrictive residential treatment centers and for better staffing ratios in group foster homes.

    Texas “has an insufficient number of caseworkers, forcing caseworkers to carry over double the caseload limits under recognized standards, putting children at risk,” the advocacy group wrote on its website, adding that many foster children “languish in care without permanent homes."

The state agency could be on the hook for “hundreds of millions of dollars” if the court orders it to make expensive changes on behalf of kids in a class known as permanent managing conservatorship, according to the agency’s previous statements.”

That could require a special session of the legislature just to fund the ordered improvements.

    “On the other hand, a ruling against Children’s Rights would mean a tough loss for reformers fighting for smaller, more manageable caseloads for state employees who monitor foster kids.”

That’s an understatement. Texas’ CPS is all but a shambles and the string of children’s deaths and abuse in foster care seems never to end. But steps taken by lawmakers and the head of the agency don’t promise much in the way of real improvement. That’s partly because the legislature continues to provide too little money to hire top-quality staff in sufficient numbers to deal effectively with caseloads. Until that changes, little else will.

But, much as CPS needed to be sued, I wonder if this lawsuit is the correct tool to fix the broken system. What neither Children’s Rights nor the state is saying is that more money for an agency whose goals are inappropriate to the task at hand isn’t the right solution to a very serious problem. CPS has yet to grasp the idea that it needs to allocate more of its budget to keeping families intact and providing the services they need to be the best parents they can be, and less to foster care.

That type of leadership can’t come from a federal judge. It needs to come from industry professionals and the legislature.

I’m all in favor of this lawsuit. I’m certain the state needs to pay hefty sums of money to the children it’s wronged. But I very much doubt that paying such a verdict will change much about the way CPS does business.

We’ll see how Judge Jack rules. In the meantime, and long thereafter, Texas’ children will continue to suffer from the many deficiencies of a system that’s supposed to help them, but all too often fails.

Dallas Bar Association C.A.R.E. Tarrant County Bar Association Texas Family Law Foundation South Texas College of Law Texas Bar College

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