Judge: Foster Care System Violates Children’s Rights

^{Editor’s note: This story has been updated throughout.}

Texas has violated the constitutional rights of foster children by exposing them to an unreasonable risk of harm in a system where children “often age out of care more damaged than when they entered,” a federal judge ruled Thursday.

“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,” U.S. District Judge Janis Jack of Corpus Christi wrote in a decision as strongly worded as it was hotly anticipated.

The ruling came a full year after the case went to trial, and Texas is expected to appeal within 30 days. If it stands, Jack’s order could mean costly reforms for Texas and its Child Protective Services division.

At any given time, about 28,000 children are wards of the state.

Jack ordered child welfare officials to implement reforms to ensure that foster children are protected and said she will appoint a “special master” to ensure compliance. That overseer will be paid for by the state.

The order directs the state to hire enough caseworkers for long-term foster care children “to ensure that caseloads are manageable” in all of the state’s 254 counties. Just how many caseworkers that will take is a question left to the special master, who will be required to study how much time caseworkers need to do their jobs adequately.

Advocates for foster children have long accused the state of stretching its caseworkers too thin to effectively protect their wards. The court also ordered the state to improve caseworkers’ turnover rate and said those workers should be able to spend more than 26 percent of their time with foster children.

Foster care reform advocates said they were thrilled with the ruling in the class-action lawsuit, brought by the New York-based advocacy group Children’s Rights, Inc. in 2011 on behalf of all Texas children in long-term foster care.

“From a national perspective, what is stunning about this decision is how clearly the judge has documented the profound and longstanding problems in the Texas child welfare system and how thoroughly her order is going to address those problems,” said Marcia Lowry, the former executive director of Children’s Rights and one of the lead attorneys on the case.

“It is enormously significant,” she said.

Ashley Harris, a Child Protection Policy Associate at the advocacy group Texans Care for Children and former CPS caseworker, said the ruling “correctly identified a number of achievable steps that Texas can take to provide the safety and support these children need.”

Julie Moody, in a statement for the Department of Family and Protective Services that oversees the foster program, said the agency was “obviously disappointed with the ruling, because great progress has been achieved improving the Texas foster care system. Texas performs comparably with other states in this area, and has steadily improved.

“The children in our care come to us after suffering horrific abuse and neglect, and we use all available state resources to protect and nurture them. We will continue to work constantly to find permanent homes for all of our foster children. ”

Jack also directed the state to stop placing certain children in unsafe settings such as foster group homes that lack 24-hour awake-night supervision. While that order is in place, the special master will make a recommendation about whether group homes should continue to operate at all, depending on a determination from the special master about whether they cause “an unreasonable risk of harm” to foster children.

The order may carry a hefty price tag, though it is unclear just how expensive complying with it would be. The state did not immediately provide a cost estimate; Jack wrote in her opinion that the reforms could save the state money in the long run.

The court ordered other reforms at the state agency, such as implementing policies that allow children to speak privately to Child Protective Services staff and improving outreach to children who age out of foster care. The Department of Family and Protective Services was also ordered to track child-on-child abuse and improve the organization and consistency with which it maintains foster children’s case files.

And at institutional residential treatment facilities, foster children with significantly different needs can no longer be placed in the same room, according to the court’s order. For example, a child classified by the state as “moderate” may not share a room with a child whose needs are considered “intense.” The court also ordered Texas to track how many children are in each residential facility.

Jack did allow the state’s efforts to privatize foster care, known as foster care “redesign,” to continue — but only if the special master finds that the program is adequately protecting children’s civil rights.

Texas’ roughly $1.2 billion-per-year Child Protective Services division, with about 8,000 employees, is one of the nation’s largest child abuse investigation and foster care teams. Independent child welfare advocates had said a ruling in favor of Children’s Rights could require significant changes at the agency, raising questions about whether state lawmakers would need to reconvene during a special legislative session to implement — and allocate money for — reforms.