A Texas judge will decide this week whether the Texas Department of Family and Protective Services should be held in contempt of court for the third time in recent years.
The department is also the subject of an ongoing lawsuit over foster care conditions in the state and has been under the supervision of court-appointed monitors since 2019.
Texas has about 9,000 children in permanent state custody, removed from their homes due to circumstances that can include abuse, complex health needs or the loss of their family caregivers.
Bob Garrett, the Austin bureau chief for The Dallas Morning News, said the lawsuit was brought by a nonprofit out of New York: Children’s Rights, founded by lawyer Marcia Robinson Lowry.
Lowry “started the whole category of lawsuits about foster care, and she subsequently formed another group,” he said. “But they recruited two silk stocking Texas law firms, you might say – Haynes and Boone in Dallas and Yetter Coleman in Houston – to do work pro-bono. And they’ve been driving this since really about 2010.”
The defendants include Gov. Greg Abbott, who tried to do away with the suit when he was attorney general, Garrett said.
“Abbott changed the defense strategy for the state, consolidating the two state agencies and himself into one entity and hiring an outside law firm, Gibson, Dunn & Crutcher. They are more aggressive,” he said. “The judge in this case, Janis Jack, yesterday openly said, ‘I know you’re wanting to find me doing something that you can go to the Fifth Circuit and get me reversed on.’ And that’s the larger backdrop for the push by the Children’s lawyers to say the state has been slow-walking needed improvements.”
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The case against the state includes allegations that Texas has fallen short of the standards of care that should be given to foster kids. The Legislature banned the practice of kids sleeping in CPS offices, but young people in state custody are still sleeping in locations such as hotels and churches.
“This is a double whammy, as you know. It’s not good for the kids. These are the toughest kids that private providers won’t accept. And it’s not good for the CPS caseworkers who have to, in four-hour shifts, babysit these kids 24/7,” Garrett said. “They’re burning out and heading for the exits again, which was one of the main things this lawsuit was designed to stop, which was kids not even knowing their CPS conservatorship caseworker. Other issues are overuse of mental health drugs and some bad investigations of outcries by intellectually disabled kids.”
Garrett said the state could be held in contempt again if the judge feels the agency is not making changes quickly enough.
“In 2019, she slapped $50,000-a-day fines for three days before suspending them and being satisfied the state had met the requirement,” Garrett said. “The issue at hand this year, the new wrinkle, is that the plaintiff’s lawyers have said she should declare parts of the program to be put in a receivership – almost like a bankruptcy of a company – to manage directly for the judge. That would be an unprecedented step, almost: It has only happened once before, in the District of Columbia in the 1990s.”
This move would put the judge in an oversight role over foster care in Texas.
“It would put her in charge, directly, of bureaucrats,” Garrett said. “I think Texas, the governor and the Legislature, would go bonkers and would try to get to the Fifth Circuit immediately. How that would all turn out is anyone’s guess.”
Garrett said the hearings are expected to last throughout the week.
“The plaintiffs are going to put on a Harvard Medical School professor today about the misuse of psychotropic drugs,” he said. “There’s other witnesses. Then the state will get to put on its witnesses. It’s almost like a mini trial, and it’ll probably last into Thursday or Friday.”
