Judge Condemns Texas Foster Care System that Abuses Children as Unconstitutional

Judge Janis Graham Jack. Image courtesy of Caller Times.

by Brian Shilhavy
Editor, Health Impact News

In December of 2014 Health Impact News reported on the class action lawsuit filed against the State of Texas and their foster care program brought by the group Children’s Rights, a New York-based advocacy group. The group was representing 12,000 foster care children as the plaintiffs. See the original story here:

12,000 Children from Foster Care Sue State of Texas over Abuses

This lawsuit was an amended complaint of the original lawsuit filed against the State of Texas in 2011, which alleged “violations of the plaintiff children’s constitutional rights, including their right not to be harmed while in state custody and their right to familial association.” (Source.)

Judge Admits that the Texas Foster Care System Abuses Children

After legal proceedings that lasted about one year, where the State of Texas tried to get the case dismissed, U.S. District Judge Janis Graham Jack ruled against the State of Texas in December of 2015 stating that the foster care system named in the lawsuit was unconstitutional. In her 255 page ruling, Judge Jack stated:

Texas’s PMC (Permanent Managing Conservatorship) children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.

Permanent Foster Care Placement Unique to Texas – Unconstitutional

In Judge Jack’s ruling, she gives an overview of Texas Foster Care and highlights the problems with Texas’ Permanent Managing Conservatorship (PMC):

When CPS determines that it is not safe for a child to live with her legal guardian, CPS petitions a court to remove the child and to obtain Temporary Managing Conservatorship (“TMC”). If TMC is granted, DFPS (through CPS) takes custody of the child, placing her in a temporary living arrangement with a certified caregiver or a family member.

TMC lasts up to one year unless a court extends it another six months. CPS’s goal for each child is “permanency,” which is achieved when a child returns home after it is safe, moves in with a relative long-term, is adopted by a new family, or ages out of foster care at age 18. Permanency is the “most important wellbeing issue” for foster children because it removes them from foster care and into stable environments where they better develop into successful adults. As Commissioner Specia testified, “I want good foster care, but the answer is permanency.”

If the child has not achieved permanency at the end of TMC, the child enters the State’s Permanent Managing Conservatorship. There are approximately 17,000 children in TMC and 12,000 children in PMC at any given time.

The change from TMC to PMC is significant.The act of designating children a “permanent” art of a foster care system is unique to Texas.

(U)nlike TMC children, many PMC children do not have an attorney ad litem to set hearings and file pleadings with a court, or notify a court when the child needs assistance. Most PMC children also do not have a Court Appointed Special Advocate (“CASA”), who are appointed by judges to watch over and advocate for foster children, even though a child’s CASA “usually is the only person who truly knows the child and knows how the child is really doing.”

Thus, the State effectively deprives many PMC children of an individual advocate.

Anna Ricker (“Ricker”), the attorney ad litem and next friend of J.S., testified that her clients in PMC “get ignored more.”

Karen Langsley (“Langsley”), another attorney ad litem who represents TMC and PMC children, testified that there is significantly less attention paid by caseworkers to children once they enter PMC.

As seen in the record, PMC children tend to receive fewer visits from primary caseworkers, visits that are less meaningful and more rushed, and overall more cursory casework. As one report explained, “Though the State’s responsibility for the child’s life and well-being does not change—and arguably increases—the attention paid to the child’s cases diminishes drastically. There is often a sense that the ‘clock stops ticking’ when the child enters Permanent Managing Conservatorship.”

Judge Jack then goes on to explain how the State of Texas is violating the Foster Children’s Constitutional rights when placed into the Permanent Managing Conservatorship (PMC):

State custody of a child creates a “special relationship” that triggers substantive due process protections. The Fifth Circuit first recognized this special relationship, and the State’s corresponding duty to provide “constitutionally adequate care,” in Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990).

More recently and more explicitly, the Fifth Circuit held that, under the Fourteenth Amendment, the State owes its foster children “personal security and reasonably safe living conditions.”

The Fifth Circuit is not alone. With near unanimity, the other circuits have found that states owe a duty of care to their foster children. Most circuits consider this right “clearly
established” for qualified immunity purposes.

A foster child’s right to be free from an unreasonable risk of harm “encompasses a right to protection from psychological as well as physical abuse.” Moreover, foster children “have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.”

Harm, both psychological and physical, can be inflicted in a variety of ways, including neglect, physical abuse, sexual abuse, and psychological maltreatment. “[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.” K.H. ex rel. Murphy, 914 F.2d at 851 (citing Youngberg, 457 U.S. 307).

The General Class consists of all children now, and in the future, in Texas’s PMC. Plaintiffs allege that DFPS’s policies toward its primary conservatorship caseworkers (“CVS caseworkers” or “primary caseworkers”) cause a number of interconnected problems, such as excessive workloads and frequent CVS caseworker turnover.

These problems, Plaintiffs argue, result in an unreasonable risk of harm to the General Class in violation of their Fourteenth Amendment rights.

The Court agrees.

The Texas Foster Care System is a Failure, Harming Children

Judge Jack documents how the Texas Department of Family and Protective Services (DFPS) is deliberately deceptive and inefficient in its management of the Foster Care system, and is severely flawed, causing harm to children.

Plaintiffs have proven, by a preponderance of the evidence, that DFPS’s policies and practices amount to structural deficiencies that cause an unreasonable risk of harm to all class
and subclass members.

[A]s the system currently stands, foster children often age out of care more damaged than when they entered.

Years of abuse, neglect, and shuttling between inappropriate placements across the State has created a population that cannot contribute to society, and proves a continued strain on the government through welfare, incarceration, or otherwise. Although some foster children are ableto overcome these obstacles, they should not have to.

The Texas Foster Care System Needs to be Replaced with One that is Constitutional

The report written by Judge Jack concludes that the system is completely broken:

Texas’s foster care system is broken, and it has been that way for decades. It is broken for all stakeholders, including DFPS employees who are tasked with impossible workloads. Most importantly, though, it is broken for Texas’s PMC children, who almost uniformly leave State custody more damaged than when they entered.

Plaintiffs have a Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State. Texas currently violates that right.

Judge Jack issued an injunction to completely overhaul the Texas Foster Care system (PMC):

The public interest will not be harmed by an injunction requiring Texas to conform its foster care system to the Constitution. With all four factors met, the Court holds that injunctive relief is appropriate in this case.

The State shall establish and implement policies and procedures to ensure that Texas’s PMC foster children are free from an unreasonable risk of harm. To effect this injunction, the
Court will appoint a Special Master to help the State implement the Goals outlined below.

Further, the State shall immediately stop placing PMC foster children in unsafe placements, which include foster group homes that lack 24-hour awake-night supervision. Foster group
homes that immediately require 24-hour awake-night supervision may continue to operate while the Special Master and the State craft and enforce the Implementation Plan.

The State of Texas is expected to spend tax-payer funds to appeal this decision.

Can We Really Trust the Government to Take Care of Foster Children?

While we applaud Judge Jack’s ruling and 255 page report, we feel there are better solutions to the problems of children in permanent foster care. Does anyone seriously expect that a different government-funded program will do any better?

At the heart of this problem is one of funding. When children become permanent wards of the State, it generates income from the multi-billion dollar foster care system funded by federal programs. That money flows into the states, and provides jobs to government employees, with little or no oversight. States will do everything they can to maintain this system that employs social workers, attorneys, judges, and many thousands of other support staff in each state.

Therefore, the only rational solution will be vigorously opposed by those employed by the system. That solution is to abolish the system completely, letting the tax dollars remain in the communities, and allowing local communities to deal with the real issues of child abuse when they actually are present.

Here at Health Impact News and Medical Kidnap, we get multiple stories every day from families who are losing their children to this multi-billion dollar industry, not because they abused their children, but for other reasons like disagreeing with their doctor, or because a neighbor didn’t like the way they were raising their children, just so states can fill their quota of children needed to collect government funding to perpetuate an entire system that is completely broken. The amount of cases where children are really being abused in the home by their parents is actually very small, and studies show that even in troubled homes children do better when they stay in the home with their family than they do in the foster care system. See:

Foster Care Children are Worse Off than Children in Troubled Homes – The Child Trafficking Business

Judge Jack has exposed a very corrupt system in Texas that abuses and harms children, and lawmakers across the country, if there are any honorable ones left, should sit up and take notice. They need to begin to enact legislation that does NOT repair a broken system, or even replace it with a new one which has happened countless times already in many states across the U.S., but abolishes it completely.

Why should American taxpayers continue to fund a broken system that is harming children?

Molly McGrath is the former director of the Baltimore Child Welfare program, and states that foster care is a “bad idea” and that children need to remain with their families. See:

Baltimore Child Welfare Director: Foster Care is a Bad Idea – Kids Belong in Families

Children in the United States today are routinely kidnapped by the State and taken away from their families, and most of the time it is not because of alleged abuse in the home. They are then put into a foster care system where real abuse happens, destroying the children and their families.

And not only is that system a total failure because it is abusing children and destroying their families, it is unconstitutional.

For more information on this topic, see:

Does the State Ever Have a “Right” to Remove Children from a Home?

Call to Action!

If you live in Texas, contact Texas Governor Greg Abbott immediately, and tell him to NOT allow the State to appeal Judge Jack’s decision which will cost taxpayer funds to defend an abusive and corrupt system. He can be contacted here, and he also has a Facebook page.

Then contact your state representatives and ask them to adopt legislation that eliminates the Texas Department of Family and Protective Services. Let the tax dollars stay in local communities where private and non-profit entities can deal with real issues of abuse with no temptation of massive government funding. Let the residents of these local communities decide how to deal with real issues of abuse (which is a tiny fraction of the children currently in the foster care system), through privately funded groups that are directly accountable to the community for their success.

There is no other solution, if you are serious about protecting Texas families and children.

Comment on this article on MedicalKidnap.com

Other Articles Regarding Texas Foster Care and Child Protection Services: