Federal judge again threatens contempt-of-court fines for Texas’ slow progress on foster care reforms

The Texas Department of Family and Protective Services offices in Austin on Nov. 14, 2019. (Credit: Eddie Gaspar/The Texas Tribune)

U.S. District Judge Janis Graham Jack again threatened to hold the state’s child welfare agency in contempt of court for failing to comply with at least three of her orders.

The federal judge has twice held state officials in contempt of court before — first in November 2019 and later in September 2020. In 2019, she also fined the state $50,000 a day for three days. In recent court hearings, Jack has consistently threatened to levy “substantial fines.”

At the Friday court hearing, the judge admonished the state for not making children aware of their rights and for not taking adequate action over reports of abuse. The judge also pressed the state about increasing the use of kinship care and implementing qualified residential treatment programs as a means to reduce the number of children without placement.

A court monitors’ report released last week cited a survey that found youth in the state’s care know about the abuse hotline, the ombudsman program and the foster child bill of rights about 50% of time. When the state argued against her initial order for giving kids access to phones, they told the 5th U.S. Circuit Court of Appeals that youth are aware of all three resources.

The report notes that the state’s child welfare agency also did not take appropriate action to protect kids in about 58% of cases where the agency suspected maltreatment or abuse.

“Somebody is not getting the urgency of this,” Jack said when threatening a contempt-of-court order. “I know that you all say you understand the urgency, but this is just not happening.”

This case was first filed in 2011, and while the agency has moved toward compliance, she says it’s not enough.

Jack also blasted the state for continuing to have children without placement, when the state cannot find a suitable placement for that child, requiring the Department of Family and Protective Services to provide temporary emergency care until a placement can be secured. Children without placement are more likely to have complex behavioral and mental health needs. The average number of children without placement went 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, Associate Commissioner for Child Protective Services Erica Bañuelos could not say yes.

“I can commit that we will continue to put the same level of effort towards reducing those numbers,” Bañuelos said instead.

Jack first ruled in 2015 that Texas has violated the constitutional rights of foster children to be free from an unreasonable risk of harm, saying that children “often age out of care more damaged than when they entered.”

In more than a dozen orders, Jack has pressed the state to move toward timely investigations of abuse and neglect in foster homes, increased oversight of residential facilities that house children and improved communication between state agencies that oversee foster children and license their facilities.

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

Friday’s hearing came after the release of the court monitors’ latest report. The monitors, who serve as watchdogs for the judge, did find significant improvements in DFPS’ investigations into residential child care centers over allegations of abuse. Among instances where DFPS did not find substantial evidence of abuse, neglect or exploitation, the monitors disagreed with about 4.9% of cases — a drop from 14% in the last reporting period. The monitors also found the caseloads for the large majority of caseworkers were carrying a standard caseload of 17 children. Jack said the improvements demonstrate a “good-faith effort from the state.”

The federal judge also encouraged the state on Friday to increase the use of and support for kinship care, saying that this will be key to relieving placement concerns.

Kinship care is a type of placement that a panel of child welfare experts said DFPS was underutilizing in a list of recommendations of foster care system fixes filed to the court last year. Evidence shows children placed with kin or family members experience increased stability, improved well-being and behavioral health outcomes and higher levels of permanency than children placed with strangers.

But kinship caregivers in Texas receive far less compensation than foster parents. Kinship caregivers who are not licensed receive $12.67 per day, while licensed foster parents receive at least $27.07 per day. DFPS plans to ask the state Legislature to address pay parity for kin this session.

The agency also detailed its plan on Friday to implement qualified residential treatment programs, a designation for congregate care facilities under the Family First Prevention Services Act passed by Congress in 2018. Texas is missing out on millions of dollars in federal funding because its residential treatment centers currently do not meet the requirements set by the federal government.

The agency said it put out a request proposal for qualified residential treatment centers and has not gotten much interest from existing residential treatment centers. In response, the agency has directed staff to work with providers to build capacity. The agency has also invited out-of-state QRTP providers but claim those providers are not interested in coming to Texas because of regulatory standards.

“These providers are used to operating psychiatric residential treatment facilities, and we don't have that license type in Texas,” Jillian Bonacquisti, the CPS director of placement services, explained during the hearing. “It would alter their treatment model, so they wouldn’t be able to bring their existing model to Texas.”