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Judge considers holding state in contempt a third time over foster care conditions

Removed from her home at age 11, Juarez — who is now 4-foot-8 and barely over 100 pounds at 18 — said she was frequently beat up and threatened by other kids, and once had an iPod taken away by facility workers after she showed them that an adult male staffer was sending her sexually suggestive text messages.

Juarez testified through tears before U.S. District Judge Janis Jack on Monday how she could never found allies in Texas foster care, a system that was there to protect her.

“They would tell us when we [cry or] misbehave that we were there because our family didn’t want us, or that it was because we were bad kids and nobody wants bad kids,” Juarez told Jack.

Jack is being asked to decide whether the Texas Department of Family and Protective Services, which manages the foster care system, should be held in contempt of court orders for the third time since a 2011 lawsuit was filed about foster care conditions.

The federal hearing is expected to take at least a week to complete.

Jack opened the hearing Monday with a strong rebuke of state foster care officials at DFPS and the Texas Health and Human Services Commission, repeating an ongoing criticism that children removed from their parents and given over to the state leave the system more damaged than when they entered it.

“It’s very disappointing, isn’t it?” she said.

Jack made her first ruling condemning the state foster care system in 2015, and three years later, the conservative Fifth Circuit Court of Appeals agreed. Since then, she’s ordered several fixes over the years and continuously criticized the state for not complying with her orders.

DFPS has been under the supervision of court-appointed monitors since 2019. Since then, the foster care system has been found in contempt twice before for failing to fix deficiencies noted by the court.

In this hearing, Jack will address recent court monitor reports that have described striking systemic failures – faulty sexual abuse investigations, poor record keeping, unreliable medication monitoring, poorly supervised residential facilities and more.

Since 2019, the state foster care system has been twice found in contempt for failing to follow her her orders to fix deficiencies.

At the center of the battle are the roughly 9,000 children in permanent state custody, removed from their homes due to circumstances that can include abuse at home, or complex health needs that parents are unable to manage without help, or the loss of their family caregivers.

They often present the most tragic stories and have some of the most complex mental and behavioral needs of any child in the system, yet they are often left in dangerous homes and residential centers with poor supervision — frequently overmedicated, trafficked, and unable to get help if they’re continuing to be being abused.

Now, plaintiffs in the original 2011 lawsuit are asking Jack to hold the state in contempt, sanction officials and consider putting parts of the foster-care system in receivership — removing those duties from the control of the state and appointing someone to oversee those operations. That person would have hiring and firing control as well as the ability to make new policy.

This week’s hearing will address several areas of concern.

Among them is the monitoring and regulation of psychotropic medications — antidepressants , anti-psychotics, stimulants and mood stabilizers. Court monitors said they could not find evidence that the state was following its own precautions for making sure these children were not being overmedicated.

Juarez testified that when she was a foster child at age 17, she was taking eight different medications every single day — most of them psychotropic drugs — that made her too sleepy and sick to go to school.

When she would tell her doctors and caseworkers that the meds were debilitating, “they would just say I needed them,” she said.

Once she turned 18, effectively “aging out” of foster care, she moved to a transitional residential program and once there, she stopped taking the drugs. She told the judge that she now feels much better.

Expert testimony on the medication of children in foster care is expected to be brought by the attorneys for the children on Tuesday, plaintiff attorney Paul Yetter said.

Part of Monday’s focus was on the safety of children without foster care placements, either in a family’s home or a residential facility that contracts with the state. The children without placements, often referred to as CWOP children, are stuck in unregulated, unlicensed and often poorly supervised homes.

Court monitors have reported that supervisors are poorly trained, overworked, and unable to maintain consistent care of and control over some of the most medically complex and difficult children in the system.

Reports include children becoming pregnant, being trafficked, abusing alcohol and drugs, skipping school and medical regimens, attacking each other, threatening suicide and being placed in multiple temporary placements for months at a time.

Regarding the children without placement who stay in unlicensed homes and hotels, Erica Bañuelos, an associate commissioner for Texas Child Protective Services at DFPS , was questioned by Jack and Yetter on whether she thought the unregulated homes were safe for children — some of whom have been hospitalized for injuries incurred by either staffers or other kids at those placements.

She declined to say that the facilities were not good enough for the children.

“I can’t say that it’s always not safe,” she said, eliciting expressions of surprise from Jack and Yetter.

“What an answer,” Yetter replied.

Bañuelos said the agency is trying to “to be at zero” on the number of children in these placements. There are currently 29 children in these unregulated homes, she said, down from twice that amount a few months ago.

“We have worked very hard in building up quality residential [centers], expanding foster care, working in intensive psychiatric treatment,” she said.

Yetter asked her if she would agree that the situation has “gotten really bad.” “I don’t know that I would agree it’s gotten bad,” she said. “I would say that if I look today at where we’re at, I would say that it has gotten better.”

At that, according to people inside the courtroom, Juarez stood up and walked out.

Testimony also zeroed in on the poor quality and backlog of investigations into allegations of sexual abuse reported by children in state care who have intellectual or developmental disabilities, such as autism, fetal-alcohol syndrome, and Down syndrome.

In one case, plaintiffs say, a girl was left in the same residential facility for a year while 12 separate investigations piled up around allegations that she had been raped by a worker at the facility. She was left in the facility with that same worker until she was “dumped in an emergency room, alone, with her jaw broken in two places,” Jack said.

The facility was eventually shut down by the state. The worker, it turned out, had previously been convicted of raping his stepdaughter but that had not turned up during the investigations into the girl’s accusations, Yetter said.

“Now what do you think the delay of all your investigations — how do you think that affected” the girl, Jack asked. Pahl said it was “not positive.”

That investigation never substantiated the allegations, and a new policy with the Texas Health and Human Services Commission does not require investigators to explain those findings — a policy criticized by Jack and Yetter.

“I guess if you never explain it, you can’t be second-guessed,” Yetter said.

According to the court monitors, children in the state’s care are not informed how to report sexual abuse. Also, the state also has not been able to prove that it has properly trained its caseworkers on how to identify potential victims of sexual abuse.

Both Jack and Yetter grilled Stephen Pahl, who oversees HHSC’s investigations into the abuse of foster care children, over a years-long staffing shortage that routinely leaves those cases unresolved and results in investigators taking shortcuts.

“If you don’t do an investigation, or if you do a poor investigation, a child can stay in a situation that puts his or her life, health and safety at risk,” Yetter asked Pahl. “True?” Jack added: “Is this a hard question?”

Pahl testified that staffing shortages were exacerbated during the pandemic and that there was a high turnover due to pay and “working conditions,” although he did not specify what those were, and said the department has been trying to solve the problem for years.

In other testimony, former DFPS caseworker Hannah Reveile told the court that by the time she quit her job r six months ago, she had developed severe depression and anxiety. According to her doctor, her blood pressure was four points below dangerous hypertension levels.

Reveile had wanted to work with children in crisis for a decade. But instead, she said she was forced to watch helplessly as vulnerable kids under her watch struggled in dangerous situations without any help from the agency.. She testified that she felt she had no choice but to leave them in the hands of a foster care system that was failing them.

“I couldn’t do it any more,” Reveile said. “Wanting it for 10 years and then finding out that it’s just a system that’s broken and breaks people — it was awful. I tried really hard to stick it out and make it better … and I just couldn’t do it anymore. I had my candle and I was burning it at one end, and then the system came in like a flame thrower.”

Pahl insisted that since he took over the department in 2021, he and other leaders have become aware of the problems and are responding to them.

“I was surprised at some of the areas of improvement that we needed to focus on,” Pahl said. “We had some issues with our investigations. We’re moving to correct that, and we’re looking at putting in measures to track those better.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/12/04/texas-dfps-lawsuit/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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