Federal Judge Threatens Again with Contempt of Court Fines for Texas’ Slow Progress on Foster Care Reforms

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U.S. District Judge Janice Graham Jack again threatened to declare the state child protection agency in contempt of court for failing to comply with at least three of her orders.

A federal judge has previously found state officials twice in contempt of court, first in November 2019 and again in September 2020. In 2019, she also fined the state $50,000 a day for three days. In recent court hearings, Jack repeatedly threatened to impose “substantial fines.”

At Friday’s court hearing, the judge chided the state for failing to inform children of their rights and failing to adequately respond to reports of violence. The judge also urged the state to expand the use of kinship care and introduce skilled inpatient care programs as a means of reducing the number of children without placement.

A Court Monitors report released last week cited a survey that found youth in state care were about 50% aware of the abuse hotline, the ombudsman program and the Foster Children’s Bill of Rights. When the state opposed her original order to give children access to phones, they told the 5th U.S. Circuit Court of Appeals that youth knew about all three resources.

The report notes that the state child protection agency also failed to take appropriate action to protect children in about 58% of the cases where the agency suspected abuse or abuse.

“Someone doesn’t understand the urgency of this,” Jack said, threatening a contempt order. “I know you all say you understand the urgency, but it just doesn’t happen.”

The case was first filed in 2011, and while the agency has been moving towards compliance, she says it’s not enough.

Jack also criticized the state for continuing to have children without placement when the state cannot find a suitable place for that child, requiring the Department of Family and Protective Services to provide temporary emergency assistance until accommodation can be provided. Children who are not placed in school are more likely to have complex behavioral and mental health needs. The average number of unsupervised children has increased from 80 children per night in 2021 to 60 children per night in 2022.

When she asked if the state could commit to having no children without placement by June, Assistant Commissioner for Child Protective Services Erica Banuelos couldn’t say yes.

“I can promise that we will continue to make the same efforts to reduce these numbers,” Banuelos said instead.

Jack first ruled in 2015 that Texas violated the constitutional rights of foster children to be free from unreasonable risk of harm, stating that children “often age unattended more traumatized than when they entered.”

In more than a dozen orders, Jack has urged the state to begin timely investigations into foster care and neglect, increase oversight of shelters where children live, and improve communication between government agencies that monitor and license foster children.

Friday saw the first court hearing with Stephanie Muth as DFPS commissioner. Muth, a former director of Medicaid at the Texas Health and Human Services Commission, replaced Jamie Masters this month.

Friday’s hearing took place after the publication of the latest report of the court observers. Monitors who serve as monitors for the judge have indeed found significant improvements in DFPS investigations into orphanages in relation to allegations of abuse. Among the cases where the DFPS found no significant evidence of abuse, neglect, or exploitation, observers disagreed in about 4.9% of cases—down from 14% in the most recent reporting period. Observers also found that the vast majority of social workers had a standard workload of 17 children. connector said the improvements demonstrated “good faith efforts by the state”.

On Friday, a federal judge also urged the state to expand the use and support of kinship custody, saying it will be key to addressing placement issues.

Familiar care is a type of placement that the child protection panel said the DFPS underused in a list of recommendations to fix the foster care system filed in court last year. Available data show that children placed with relatives or family members experience increased stability, improved well-being and behavioral health scores, and higher levels of persistence than children placed with strangers.

But custodial relatives in Texas receive far less compensation than adoptive parents. Unlicensed relatives receive $12.67 per day, and licensed foster parents receive at least $27.07 per day. The DFPS plans to ask the State Legislature to consider pay parity for relatives at this session.

On Friday, the agency also detailed its plan to deliver qualified inpatient care programs for community care facilities under the Preventive Family Services Act passed by Congress in 2018. Texas is missing out on millions of dollars in federal funding because its inpatient treatment centers currently don’t meet the requirements set by the federal government.

The agency said it had placed a request for qualified inpatient treatment centers and had not received much interest from existing inpatient treatment centers. In response, the agency sent staff to work with vendors to build capacity. The agency has also invited out-of-state QRTP providers, but says these providers are not interested in coming to Texas due to regulatory standards.

“These providers are used to working in psychiatric hospitals, and we don’t have that type of license in Texas,” Gillian Bonacquisti, director of employment services at CPS, explained during the hearing. “This will change their treatment model so they won’t be able to bring their existing model to Texas.”