U.S. District Judge Janis Graham Jack pointed to the plight of a teenage girl in a group home in Grand Prairie who made a dozen outcries of maltreatment but was all but ignored by the commission’s Provider Investigations unit.
The disabled children receiving community-based services from Texas Medicaid, a health insurance program for the poor that covers almost all foster kids, were “placed in the most appalling conditions of any we’ve seen in this case,” Jack said at a hearing on whether to hold the state in contempt of court.
Jack ripped into Stephen Pahl, the commission’s deputy executive commissioner for regulatory services, who was called to testify by lawyers for about 8,000 children in long-term foster care.
“Child C,” the girl held in the Grand Prairie facility, made 12 calls to the state child-abuse hotline in 12 months, according to a September report by the judge’s two monitors, Deborah Fowler and Kevin Ryan.
The girl, 14 years old when the troubles began, was diagnosed with “disruptive behavior disorder,” attention deficit hyperactivity disorder, mild intellectual disability and some difficulty communicating, the monitors said.
The girl alleged she was tasered by a staff member several times, the monitors said. In a separate incident, her jaw was broken in two places in an attack, and the facility waited until the next day to take her to a hospital, the monitors’ report said.
Provider Investigations took nine months to investigate the attack, and even longer to check out the 11 other allegations of mistreatment, the report said. One investigation remained open for 19 months, the monitors said.
“Twelve outcries. And finally, she was dumped in an emergency room with a jaw broken in two places,” Jack said.
“By herself,” added plaintiffs’ lawyer Paul Yetter of Houston.
Commission spokespersons did not immediately respond to a request for comment.
Private attorney James Adams, defending the state, elicited testimony from Pahl about how Provider Investigations suffers from high turnover among investigators but has eliminated a backlog of probes into outcries by intellectually and developmentally delayed foster children.
Jack and Yetter were not satisfied.
A Child’s Outcry
The judge and the children’s lawyer complained that under a new policy adopted in June, investigators no longer put into their final reports an explanation of why they ruled a child’s outcry to be inconclusive or unfounded.
Unlike investigators at the Department of Family and Protective Services, who delve deeply into providers’ history, the Provider Investigations unit doesn’t do such background checks, the monitors’ report said. The unit’s employees “appeared to adopt as fact” whatever the provider’s staff members told them — such as that “the child routinely made false outcries,” the monitors said.
“There’s no excuse for what many of these children went through,” Gibson Dunn & Crutcher partner Allyson N. Ho of Dallas, who is leading the state’s defense, said in an October filing, referring to the intellectually disabled foster children.
Last spring, Ho was hired by Gov. Greg Abbott to represent him and the two state agencies who also are defendants in the case.
Plaintiffs’ lawyers have asked Jack to hold the state in contempt of court for failing to make needed improvements in foster care. They said Jack should weigh whether to slap the state with fines and maybe even appoint receivers for parts of the program, wresting control from the state.
Ho and her colleague Prerak Shah have sought to show Jack’s monitors are in error. The state has made steady progress, making any contempt finding unwarranted, Ho and Shah have said in recent briefs.
As Monday’s hearing began, Jack for a time threatened to sanction Shah for “being annoying” in the courtroom; and both Ho and Shah, for allegedly misstating facts in written filings and then lodging “ridiculous and spurious objections” to things the monitors have written.
Jack later said she would not try to punish the state’s private lawyers.
“Please, let us work together for these children,” said Jack, who originally sat in Corpus Christi but has taken senior status and lives in Dallas.
Twice before, Jack has held the state in contempt of court. In late 2019, she fined it $150,000 for failing to ensure that privately operated group homes and cottages with multiple foster children had an adult employee staying awake at night to supervise the state’s charges and prevent violence and sexual abuse.
A year later, Jack threatened fines of $75,000 a day, but didn’t impose them.
This year, Jack has revived talk of fines and sanctions against the state.
Jack was especially upset over “children without placement,” youth whom state contractors won’t accept and who are supervised 24/7 by CPS caseworkers in hotels, churches and other makeshift facilities. In Marble Falls and Killeen, teenage girls escaped, only to end up in the company of adult men, amid fears by Jack’s monitors they were at risk of sexual assault.
Toll on CPS Workers
The toll that repeated “child watch” shifts take on CPS workers is one reason plaintiffs’ lawyers are asking Texas be sanctioned. Others include failure to properly administer and monitor powerful mental health drugs, train caregivers in how to identify sexual abuse and educate foster children on how to report maltreatment.
The hearing, expected to last several days, comes as the lawsuit, filed in 2011, continues to vex Abbott, a three-term GOP governor, and the Republican-controlled Legislature.
Lawmakers have been forced to increase funding of the Department of Family and Protective Services, which basically serves as parents for about 8,000 children in the state’s “permanent managing conservatorship,” and of the Health and Human Services Commission, which regulates foster-care providers.
They and Abbott are defendants in the suit, brought by nonprofit child advocacy groups Children’s Rights and A Better Childhood, both of New York.
Jack previously had ruled that children too often linger for years in unconstitutionally unsafe foster care, to wind up in the criminal justice system or homeless after they turn 18. Kids regularly emerged from the system in worse shape than when they entered, she found.
Children were being “shuttled throughout a system where rape, abuse, psychotropic medication and instability are the norm,” Jack ruled in 2015.
Dozens of states and counties in states where child welfare is a county responsibility have been sued by Children’s Rights, whose founder, Marcia Robinson Lowry, devised the legal strategy of using the 14th Amendment to the U.S. Constitution to prohibit “warehousing” of youth in unsafe conditions.
In some instances, the defendant state and local governments have remained under court scrutiny for decades.
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