Despite a federal judge's scathing finding last month that Texas has failed to protect foster children in its care, reform advocates are steeling themselves for a lengthy battle to force state officials to make fixes ordered by the court.
Attorney General Ken Paxton immediately appealed the reforms ordered by U.S. District Judge Janis Jack in December, after she found that children in Texas’ long-term foster care have been subjected to "years of abuse [and] neglect," systemically denying them their civil rights. Paxton is asking the conservative U.S. 5th Circuit Court of Appeals to block Jack's order while the state appeals her findings.
The appeals court is expected to rule on an intermediate question — whether Jack can appoint a "special master," at Texas’ expense, to begin recommending reforms — within about a month. Both sides say that ruling could largely determine whether foster children in group homes see any immediate changes — like mandated 24-hour supervision that Jack ordered — or whether the case remains on hold during a drawn-out appeals process that could last a year or longer.
Paxton’s office has called Jack’s ruling a “misguided federal takeover of the Texas foster-care system.”
“The court’s injunction raises serious federalism concerns because it attempts to wrest control of the Texas foster-care system from the State’s elected representatives, executive officers, and judges,” Paxton's lawyers wrote in an appeal to the higher court this month.
But lawyers representing roughly 12,000 children in Texas’ long-term foster care system in the class-action suit say the state is merely stalling.
“Texas, from the very beginning, hasn’t done anything but fight,” said Paul Yetter, a Houston-based attorney and lead trial counsel for the foster youth. “No reform is immediate, but even early on, there can be important changes that protect the children.”
While both sides wait for a 5th Circuit ruling, they quietly submitted candidates to Jack this week to serve as the special master to study failings in the system and make recommendations on reforms, deciding, for example, whether group homes should be allowed to continue, or how many foster kids Child Protective Services caseworkers should be responsible for.
Paxton's office, again protesting the naming of a special master while its appeal is pending, offered up two names to the court late Tuesday: Tina Amberboy and John Stephen.
Amberboy is the executive director of the Supreme Court of Texas’ permanent judicial commission for children, youth and families. Stephen is the managing partner of the New Hampshire-based Stephen Group, which in 2014 conducted an extensive review of Child Protective Services and recommended changes to the agency. The state has argued that Jack’s ruling ignores significant positive transformations made to the foster care system since the Stephen Group review.
“It was the very first comprehensive, top-to-bottom review of CPS that was done from the outside,” agency spokesman Patrick Crimmins said. “There’ve been lots of reform efforts before, but they were really all based on internal reviews.”
The lawyers suing the state offered up Kevin Ryan of the New Jersey nonprofit Public Catalyst, which advocates for child welfare. As a second choice they suggested that Francis McGovern, a law professor at Duke University, and Deborah Fowler, executive director of the nonprofit Texas Appleseed, work in collaboration.
Jack will pick the special master from the candidates submitted.
Marcia Lowry, one of the lead attorneys suing Texas on behalf of the foster children, said she hoped the 5th Circuit would let Texas begin working with the special master and cease placements in group homes that lack 24-hour supervision.
“Who knows who’s being assaulted tonight in some of these group home facilities,” she said.
Texas officials have conceded there is room for improvement in foster care, but they say the system’s failings don’t rise to the level of civil rights violations — or even to the point where they “shock the conscience.”
“It is true that Texas’ foster-care system needs improvement in certain areas,” lawyers for the state wrote in their appeal. “But the same could be said of most states’ foster-care systems.”