Appeals court blocks $100,000 daily fine for Texas’ troubled foster care program

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A federal appeals court on Wednesday temporarily halted a $100,000-per-day contempt fine slapped on a Texas health and human services official earlier this week for her agency's routine neglect of investigations into allegations of abuse and neglect by children in the state’s beleaguered foster care system.

U.S. District Judge Janis Jack on Monday found Texas Health and Human Services Commissioner Cecile E. Young in contempt of her court orders to fix the way the state investigates complaints by children in its care.

It was the third time the state has been held in contempt of court orders since a 2011 lawsuit was filed about foster care conditions in the care of the Texas Department of Family and Protective Services.

On Wednesday, the U.S. Fifth Circuit Court of Appeals issued a temporary stay of the order while the state appeals Jack's ruling.

The judge’s decision was prompted by the “continued recalcitrance” to conduct thorough, accurate and timely abuse, neglect, and exploitation investigations by HHS's Provider Investigations unit, which investigates those allegations from children in DFPS care, the 427-page decision reads.

“As demonstrated by the stories of the children and PI’s failure to take any action to remedy the egregious flaws identified by the Monitors, PI represents a significant, systemic failure that increases the risk of serious harm [to the children].”

Jack's order state's that the fines levied against Texas will be lifted when the state can demonstrate that its investigations are in compliance. A hearing on that matter is set for late June.

The state filed an appeal and a motion to stay the contempt order on Tuesday, arguing that HHS officials "are steadfastly committed to the welfare of the children within their care, and they have worked diligently for years to safeguard those children and comply with the Court’s remedial orders in this case."

The filing asked Jack that the order be temporarily halted immediately while it files an appeal with a higher court "given the magnitude of the presently accruing fines—and the irreparable harm to federal-state comity by holding the Governor-appointed, Senate-confirmed head of one of the largest state agencies in the country in criminal contempt."

Jack denied the motion shortly after. The appeals process will still move forward.

The state's response highlights the contentious relationship that HHS, DFPS and Jack have had since Jack made her first ruling condemning the state foster care system in 2015. Three years after that, the conservative Fifth U.S. Circuit Court of Appeals agreed. Since then, she’s ordered several fixes over the years and continuously criticized the state for not complying with her orders.

Since 2019, DFPS has been under the supervision of court-appointed monitors who have released periodic reports on Texas’ progress toward eliminating threats to children’s safety in the foster care system.

Attorneys representing the foster children in the lawsuit said Monday’s ruling from Jack sends a strong message.

“The judge’s ruling is measured but urgent, given the shocking evidence,” said Paul Yetter, attorney for the plaintiffs. “Innocent children are suffering every day. After all these years, when will state leadership get serious about fixing this disaster?”

The state's appeal "sends a terrible message to Texas children that state leadership just doesn't care about their safety," Yetter said on Tuesday.

"Rather than certify safe, timely investigations of reports of child abuse and neglect, the state seems determined to avoid responsibility," he said.

Last year, the plaintiffs asked the court to place parts of the foster care system under receivership, which is when a court appoints outside experts to run all or parts of an agency's operations while the agency fixes the issues that prompted that action.

A January report by foster care monitors cited progress in the area of staff training but continued weaknesses in the agencies’ responses to investigations into allegations of abuse and neglect made by children or those who contact them.

At the center of the battle are the roughly 9,000 children in permanent state custody, removed from their homes due to circumstances that can include abuse at home, or complex health needs that parents are unable to manage without help, or the loss of their family caregivers.

They often present the most tragic stories and have some of the most complex mental and behavioral needs of any child in the system, yet they are often left in dangerous homes and residential centers with poor supervision — frequently overmedicated, trafficked, and unable to get help if they’re continuing to be being abused.

Testimony during a series of hearings earlier this year and late last year zeroed in on the poor quality and backlog of investigations into complaints of sexual abuse reported by children in state care who have intellectual or developmental disabilities, such as autism, fetal-alcohol syndrome, and Down syndrome.

In one case, plaintiffs say, a girl was left in the same residential facility for a year while 12 separate investigations piled up around allegations that she had been raped by a worker at the facility. She was left in the facility with that same worker until she was “dumped in an emergency room, alone, with her jaw broken in two places,” Jack said.

The facility was eventually shut down by the state.

That investigation never substantiated the allegations, and a new state agency policy does not require investigators to explain those findings — a policy criticized by Jack and Yetter and referred to in Monday's decision.

According to the court monitors, children in the state’s care are not informed how to report sexual abuse. Also, the state also has not been able to prove that it has properly trained its caseworkers on how to identify potential victims of sexual abuse.

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