For the first time in two years, a federal judge on Tuesday will hold the first public court hearing on the 15-year-old class action lawsuit against the Texas foster care system. 

The pressing question before U.S. District Judge Randy Crane over the multiple-day hearing in Houston will be —- can the $4.9 billion Texas foster care system keep the 6,800 children in its care safe without a federal court overseeing its every move? 

“That ‘micromanagement’ has run its course,” attorneys for the state, led by Gibson Dunn partner Allyson Ho, argued in recent court filings. “It’s time to return Texas’s foster-care system to Texas. The State has earned that result.”

Filed in 2011, the lawsuit has put the state’s foster care system, which is housed under the Texas Department of Family and Protective Services, under constant court oversight. Since 2018, court-appointed monitors have traveled throughout Texas to check on children in state care. Their reports have provided unprecedented details about the unsafe conditions children are living in while in the state’s care, children dying in the state’s care, and caseworker to children ratios, among other statistics. 

If the case were to be dismissed, it’s not clear if the state would want to provide such transparency on foster care conditions moving forward and, more importantly, be trusted to continue improving care for children. The agency did not respond immediately for a request for comment ahead of the hearing.

“Fixing this broken Texas system takes time,” Yetter told The Texas Tribune in a statement on Friday. “We’ve seen welcome improvements. But the court-ordered reforms are in progress, not done. It’s crazy for the state to try to end the remedies now. Children will suffer.”

The agency’s newer team of private attorneys, hired specifically to move the lawsuit to dismissal, has insisted that the agency be released from monitoring. They cite that the agency, for the most part, has complied with the court’s mandate that both foster care casework and children’s living conditions improve, spending hundreds of millions of dollars to do it. 

The most recent court monitors reports say the state dropped overall wait times for callers to the abuse hotline decreased, more than 82% of caseloads involving children in permanent foster care remained within a manageable threshold of 14-to-17 children per worker and “significant” progress has been made into the investigations of foster care providers.

There’s been a nearly 50% drop in the number of children removed from their homes, thanks in part to a 2021 law change that made it harder for the state to remove children from their parents because of neglect. To be removed for neglect, which at one time represented most of the cases the agency investigated, the child no longer had to be in “substantial risk of physical or mental harm,” but rather had to be in “immediate danger.” 

That revised criteria is responsible for fewer cases coming in DFPS’ front door. In fiscal year 2025, DFPS investigated 581 possible child abuse and neglect-related fatalities, down from 997 in fiscal year 2022. In 2011, about 12,000 children were in long-term foster care compared to about 6,800 in 2025. 

The agency is also working harder at keeping children in their homes or with relatives instead of removing them, while an child abuse and neglect investigation proceeds. 

Still, there are concerns that when children are finally removed, they are much more traumatized and need more extensive help if they do wind up in a long-term foster care placement. One of the latest monitors’ reports detail they had “significant concerns” with the system putting foster children in homes that had histories of abuse, neglect or exploitation. The monitors say they are concerned that HHSC allows homes to stay open if the child placing agency, private organizations that the state contracts with to find homes for foster children, disagrees with the closure. They also note some homes reopened under a new child placing agency after HHSC had previously recommended that they close.

In DFPS’ own self-evaluation report prepared for its upcoming sunset review, the agency stated that although fewer children are removed from their homes, caseworkers are seeing more “high acuity” children who need more behavioral and mental health help.

“Although fewer children are entering care, those who do often have significant trauma or behavioral health needs requiring higher levels of support. This underscores the continued need for high-quality, trauma-informed services for children in conservatorship,” the report stated. 

In 2017, the agency became a separate, standalone entity that reports directly to Gov. Greg Abbott, not the Texas Health and Human Services Commission. DFPS’ makeover has meant boiling down the agency’s role considerably, restricting it to answering and investigating child abuse allegations and working harder at keeping families together instead of removing children and placing them into foster care. 

Also nine years ago, Texas lawmakers approved a massive privatization effort that today means just over half of the state’s foster care children are now managed and placed in homes and residential settings by community-based, private contractors. As of last November, DFPS reported the combined value of its five large multi-year contracts was $1.34 billion. 

The results of the privatization rollout have been mixed. This summer, the agency fired one of its largest contractors – EMPOWER – which managed the care of roughly 3,000 children in Dallas and seven other counties, following the deaths of two children in its care in the past two years. 

“The Texas foster care system is in a period of flux, as it shifts into full privatization, and improvements to the system are too new to conclude they are durable,” the plaintiffs’ attorneys stated in a recent filing.  

The state’s defense attorneys insist that the firing of EMPOWER following its deficiencies shows the system is now working as it should. 

“(The state is) actively identifying threats to children’s safety and acting swiftly to protect those children,” the agency’s legal team argued in a filing. “The State uncovered Empower’s failures, took control of Empower within two days, checked on nearly every child in Empower’s care within six weeks … That’s the system working as it should to protect Texas children.”

Meanwhile, child deaths in other parts of the state continue to grab headlines. In the spring, an Edinburg mother who had an extensive history with DFPS investigators over her mental state, was arrested and charged with the capital murder of her two children in San Antonio. And both the agency and law enforcement in Houston have been quietly investigating the death this summer of a 13-year-old found dead inside her foster parent’s car.  

The state, on the other hand, argues that expensive reforms to the agency have helped the agency reach a stage where further court monitoring should be eliminated. 

“Each of those systems is now built and working,” lawyers for the state argue in filings. “So even if the State did not perfectly comply with every order, the conditions that created the unreasonable risk of serious harm have been remedied.”