Natasha Vargas-Cooper,  January 19, 2016

Texas Foster Care Is an Unconstitutional Snake Pit

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On January 8, the state of Texas filed to appeal U. S. District Judge Janis Jack’s December 2015 ruling that the Texas foster care system is a place where “rape, abuse, psychotropic medication, and instability are the norm.” Jack’s blistering 260-page report makes for brutal reading. Filled with tragic and infuriating instances of both parental and state negligence, it concludes that the Texas Department of Family and Protective Services (DFPS) consistently violated the children’s Fourteenth Amendment right to be “reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services.”

Justice Jack cited the state’s failure to hire enough case workers to appropriately meet the needs of their charges, to effectively monitor group homes, to make sure enough qualified staff worked in those homes, to penalize institutions where abuse and rape took place, and to ensure that children were not sent hundreds of miles away from their communities. The totality of these failures, Jack wrote in her decision, “shocks the conscience.”

The national standard for a single caseworker is under fifteen cases, in order to ensure adequate attention be paid to each child. Nearly half of Texas’s caseworkers have over twenty-one cases. While several commissioned reports pointed out this problem to DFPS as long ago as 1990, nothing has been done to remedy the crisis, Jack ruled. What’s more, between 2009 and 2013, case loads increased. The ruling cites several expert witnesses, testimonies, and reports that stress how detrimental high case loads are to child safety. When caseworkers are overburdened, children fall through the cracks. 

The greatest “systemic failure” highlighted by Jack’s ruling is the number of improper investigations into charges of physical abuse, sexual abuse, and negligence. In 2013, for instance, the Performance Management Unit, a quality control division of DFPS, discovered that out the 111 investigations into abuse and neglect, eighty-four (75 percent) were incorrectly conducted. “This is staggering,” Jack wrote. “These children have for too long been forgotten. Their stories deserve to be told.”

The unifying theme of these stories is the ghastly deterioration of the children’s mental, physical, and emotional condition while in state care—particularly once they entered permanent management conservatorship (PMC). A nefarious feature unique to Texas’s child welfare system is the bifurcation of resources based on a child’s status in the system. According to court documents, there are approximately 17,000 minors in temporary management conservatorship (TMC), and 12,000 stranded in PMC, the latter being essentially a sinkhole for children now considered “permanent” fixtures in the foster care system, in a ruling as final as reunification with a parent or adoption. Landing in the bureaucratic oubliettes of the PMC translates to fewer mandated court hearings, less caseworker time, and no assigned Special Advocate or ad litem lawyer. Put another way, rather than creating more urgency around children who are troubled and unwanted, Texas enables the clock to stop ticking as they are left to languish in a broken and hostile system unfit to protect them.

One of the plaintiffs in the case being appealed is referred to only as S. A.

S. A.’s adoptive mother had several warrants out for her arrest after she tried to flee to Mexico with her boyfriend, a registered sex offender. Once S. A.’s mother was charged, S. A. entered the PMC system at the age of five. According to court documents, after just four months in foster care S. A. reported that a male foster child also in the same home had anally penetrated her. “There is no evidence in S. A.’s 33,000 pages of case files that she was interviewed regarding these allegations or that she received any type of physical examination or medical treatment in connection with these allegations,” Jack wrote in her ruling.

Most children’s case files, like S. A.’s, are tens of thousands of pages in length, making it impossible for case workers to easily access data about their charges. Nevertheless, the court found, this is the state’s preferred method of data storage; Texas is “deliberately indifferent,” according Jack’s ruling, to the problems this can cause. The court also found that inefficiency is not tied to budget issues. Quite the opposite: when the Texas agency asks for more money, the legislature typically provides it “when the State had money, [DFPS] got substantial amounts of money,” DFPS commissioner John Specia testified. “When the State didn’t have money, [DFPS] had fewer cuts than other people did.”

S. A.’s foster parents asked if she could be removed from their placement in order for her to be safe from the male child who allegedly raped her. Even though it’s well established within child welfare circles that children who have suffered sexual abuse should be placed in a single-child family to avoid further harm or exploitation, none of the following thirteen foster homes S. A. was introduced into were single-child homes. Further, DFPS does not track child-on-child abuse so there was no way for the caseworkers to know if they were placing S. A. back with her abuser.

S. A. spent the following years ping-ponging out of psychiatric facilities, group homes, foster homes, and hospitals. The reasons for moving S. A. were alternately cited as a decreased level of care, and her displaying “aggressive” and “self-abusive behavior.” In 2004, S. A. was placed in a residential therapeutic community known as Hill Country Youth Ranch, inside which, staffers report, S. A. finally began to blossom. Though things got off to a shaky start, by the end of the first year at Hill S. A. was making major improvements socially, emotionally, and academically. In 2007, CPS came to remove S. A. from Hill because her service-need, ironically, had been downgraded due to her progress. The director of Hill and many other staffers protested her abrupt removal from the facility. The director wrote to the district judge in charge of S. A.’s case on her behalf:

I am unclear as to how the decision to remove [S. A.] was made, and I do not know who made it or the criteria used to reach this judgment. I was informed of her impending removal this morning immediately before her departure. In the midst of many tears and much confusion, we attempted to say our goodbyes and to provide her with some measure of support and comfort.

It was and still is painful to think that this child was removed from a positive and fruitful program that was clearly advantageous to her.

I truly have no words to describe the depth of my objections to this decision, as well as my disappointment at the manner in which her removal was done.

This child may have been well-served if the person or persons making placement decisions would have sought and obtained objective data and information from the staff who were effectively working with her.

Sadly, her amazing struggles, effort and eventual success were dismissed and disrespected in this life-changing decision.

During S. A.’s time in PMC she had approximately twenty-eight different primary and secondary caseworkers. S. A. told various psychologists over the years that she would grow upset and anxious whenever she was assigned a new one without being told. During S. A.’s first few years in PMC, her caseworkers visited the young girl just four times a year; later, S. A. would sometimes go several months without any contact with her primary caseworker. One frustrating incident revolved around a caseworker who left the position without giving any kind of notice. For several months, S. A. tried to get in touch with the former caseworker without any luck, until an advocate checked a Child Protective Services (CPS) computer system and discovered that the caseworker had been reassigned.

According to the U. S. Department of Health and Human Services, foster children over the age of ten stand a single digit chance of being adopted, and S. A., who was now in her early teens, had her likelihood of adoption even further diminished because of high staff turnover and poor record-keeping that resulted in several delays. The main obstacle that repeatedly prevented S. A. from being placed with adoptive families was her caseworkers’ failure to fill in her health, social, educational, and genetic history report, which must be shown to couples investigating adoption. During these delays, court records show, S. A. would become increasingly anxious, and it was “devastating” to her when the adoption efforts would eventually be abandoned.

Rather than creating more urgency around children who are troubled and unwanted, Texas enables the clock to stop ticking as they are left to languish in a broken and hostile system unfit to protect them.

After she was removed from Hill, S. A. was hospitalized several times for violent and suicidal behavior. One caseworker witnessed a hospital staffer restrain S. A. by pinning her arms so far behind SA’ s back, the she was “concerned that her shoulders/arms would be pulled out of [their] sockets or her elbows broke[n].” As though such treatment weren’t destabilizing enough, S. A. was also given powerful psychotropic drugs such as lithium carbonate, Trileptal, Risperdal, and Vyvanse, to “help improve mood swings, sleep, attention and to reduce aggression, hyperactivity and impulsivity.”

Any fleeting review of S. A.’s mental and health records show a calamitous decline. A 2002 psychological examination found that S. A.’s intellectual functioning was approximately “in the upper end of the Low Average range,” which was likely an “underestimate of her actual intellectual level of functioning.” After seven years of shuttling between group homes, hospitals and psych units, a psychologist’s evaluation found S. A.’s abilities had deteriorated to “the borderline to possibly mildly mentally retarded range” and that her “overall functioning is very impaired.” An evaluation in 2011 commented that S. A. “displayed regressed emotional functioning” and that her behavior had not improved over the last year.

When S. A. was fifteen years old, her reading skills were found to be like those of a third or fourth grader, due in part to her many placement changes, which caused her to attend sixteen different schools over thirteen years. She composed the following sentences during that evaluation: “Other kids make me frustrated”; “I regret hitting little kids”; “I can’t stay in a place a long time”; and “I need a family.”

After forty-five placement changes and living in at least thirty-three different locations throughout the state, S. A. aged out of the system without “basic adult living preparation skills,” and “did not know how to wash dishes or set a table,” according to testimony. Two months into legal adulthood, S. A. walked into traffic and was hit by a car. She survived her injuries and is now homeless, living in a shelter.

Dr. William T. Carter, a child psychology expert who has interviewed 7,500 children, two thousand of which were in involved with child protective services, spoke to several plaintiffs including S. A.. He opined during the trial that S. A.’s case is sadly, “typical . . . of the entire foster care system in the State of Texas.” 

In her injunction Judge Jack declared that Texas must appoint a type of child welfare czar to command an overhaul of Texas foster care and that the plaintiffs in the case—young adults who spent the majority of their lives mired in the system—could sue for damages.

But whatever corrective changes the “Special Master” appointed will be able to make, they are practically predestined to be slow and difficult to implement given the overburdened nature of the system. For instance, Jack also admonished the state for their poor geographical distribution of foster youths. There are counties where no group homes exist, and there are others that are bursting with clients. Promise House of Dallas is currently home to seventy-five foster youths and runaways. According to the ruling, the Special Master should decide whether facilities like it, which house over twelve youths, should be allowed to operate. What will become of those seventy-five if the Special Master decides that it’s impossible to assure the safety of so many? How long will it take to find a new home for them? And given the state of the DFPS case files, how can the state be sure that the child’s next home is safe?

Further, the state’s entire agency apparatus de-incentivizes contact with children. The Stephen Group, an outside consulting agency that was hired in 2014 to conduct an operational review of DFPS found that:

Supervisors are driven to use metrics as a mechanism to make sure caseworkers ‘meet their numbers,’ not as a tool to balance workload, identify workers in need of training or recognize structural issues that should be resolved. This creates a culture of fear where caseworkers are focused more on meeting numbers and checking off boxes than on the quality of service for the children in families under their care.

As a result, caseworkers only spend 26 percent of their time interacting with children, because the rest is taken up by paperwork.

A systemic agency overhaul could take years, if not decades, to achieve. On top of this, precedent suggests that efforts at reform could be stymied by the scope of power given to the Special Master. Los Angeles’ CPS has been in crisis in one way or another for close to eight years, in which time the rate of homicide committed against children who were supposed to monitored by Department of Child and Family Services has spiked. After eight-year-old Gabriel Fernandez, who had an open file with LA’s DCFS, was brutally beaten to death by his parents in 2013, L.A.’s County Supervisors assembled a Blue Ribbon Commission to suggest reforms for the embattled agency. Two years in, the Commission recommended a child welfare czar be put in place to execute the reforms. But after months of negotiating and pushback, the supervisors limited the czar’s scope, rendering him incapable of hiring or firing DCFS staff.

A few weeks before the case against the state began in Jack’s courtroom, DFPS instituted a “transformation” program that vowed to be “completely different” from past reform efforts. The state’s appeal will likely point to this hastily constructed program as proof that they were not indifferent to the suffering of the plaintiffs.

Natasha Vargas-Cooper is a criminal justice reporter in Los Angeles. She tweets from @natashavc.

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