Evonneyu [CC BY-SA 4.0], via Wikimedia Commons

November 22, 2019; Dallas Morning News

There’s a clash of ideologies and methodologies in Texas when it comes to provision of foster care, and for the past eight years it has pit a federal judge against Texas’s foster care providers.

US District Judge Janis Graham Jack has been the presiding judge on a lawsuit filed by a children’s rights organization in 2011. The suit alleges that the state of Texas, which has around 30,000 children in foster care on any given day, has stretched its resources and caseworkers too thin, placing children in perilous situations. The judge is now attempting to resolve one of those situations, which involves leaving children unsupervised at night in congregate living situations.

If a foster child in Texas’s long-term custody lives in a home, cottage, or congregate-care setting with more than six kids, Judge Jack insists there be an awake adult onsite at all times. This new demand has raised the ire of leaders of the nonprofits that provide the great bulk of foster care in Texas. They point out that their loving and longstanding devotion to society’s castoff kids wasn’t being appreciated. The courtroom exchanges between Jack and their attorneys show there is no love or devotion being exchanged there.

As a class action lawsuit moves forward around this issue and others related to how foster care in Texas is managed, the parties are still in the compliance phase, and questions of whether any good will come from this suit are rampant.

The suit has generated some “critical additional dollars for needed services” in recent legislative sessions, says Scott McCown, former director of the Children’s Rights Clinic at the University of Texas School of Law in Austin. “But if the lawsuit degenerates into name-calling and demoralizing the [Child Protective Services] staff and putting incredible burdens on the system for performance that is unrealistic for it to meet, then you just erode the system.”

McCown has never been a supporter of reform by lawsuit. He sees a campaign to shame the legislature and elected officials into reforming foster care and suggests other child-centered initiatives are better ways to get the results sought. But while Texas has killed off pieces of the lawsuit, other parts remain, and Judge Jack continues to hold sway over them.

The 14 executives who sit on the board of the Texas Alliance of Child and Family Services have sent a letter to their 160 provider-members warning that “reactive, broad-brush decision-making” such as Jack’s awake-night supervision order could destabilize the system.

“When people are making watershed decisions about the foster care system, we strongly urge they not be guided by crisis or narrow issues,” the board wrote. “In Texas, almost all of foster care is provided not by the state but by community nonprofits. These are the doers, the caretakers, the ‘in the trenches’ experts who know what our foster children need. They should be listened to and supported.”

As a general principle, such arguments seem more than a little thin, in that provider nonprofits have been known to go astray from time to time, violating the best interests of those in their charge in their own institutional interests. We are not suggesting that such a thing is at play here, but Judge Jack has indicated that she sees recalcitrance where there should be common-sense compliant action. Furthermore, the providers are not the only nonprofits in the mix; the Texas Alliance is countered by Children’s Rights, which not only brought this suit but has sued 16 other states over alleged defects in their foster care systems. Children’s Rights describes its mission on its website as “proving that failing child welfare systems not only can be fixed, but can be made to run well.”

Children’s Rights began as a project of the New York Civil Liberties Union and, later, the American Civil Liberties Union, and in 1995 became an independent nonprofit organization. We have won landmark legal victories in Connecticut, Georgia, Michigan, Mississippi, New Jersey, Oklahoma, Tennessee, Washington, DC and Wisconsin and engaged in advocacy efforts that are changing the way child welfare is practiced in the United States.

Here are the results from some of their other suits:

  • Connecticut: “Connecticut decreased the number of institutionalized children aged 12 and younger by nearly 90 percent, from 201 kids in 2011 to 22 in 2015.”
  • Georgia: “In 2003, children in metropolitan Atlanta foster care would often go six or more months without a visit from a caseworker. But by 2015, workers provided 96 percent of required twice-monthly visits to children.”
  • Michigan: “In 2006, approximately 6,300 Michigan children were legally free for adoption, but instead were growing up as permanent wards of the state. By 2014, the number dropped to under 2,700.”
  • Milwaukee: “The rate at which children were abused and neglected in foster care was reduced tenfold between 2000 and 2014. Allegations of maltreatment, which used to sit for months, are now referred and investigated within days.”
  • Tennessee: “More siblings are being placed together in Tennessee foster homes. In 2002, less than 35 percent of sibling groups were living together while in state custody, compared to 75 percent in 2015.”

Many who would see the suit dropped cite concerns over the cost of the lawsuit and the resultant monitoring flowing from it, but the potential costs of a less-than-safe system, cruelly assessed to and primarily paid by the children in the state’s care, should make all of that money pale in comparison.—Carole Levine and Ruth McCambridge