Texas Foster Care: Long Road Toward Reform – Part I

In August of 2013, KVUE-TV reported on the tragic and utterly avoidable death of Alexandria Hill at the hands of her foster mother. “We never hurt our daughter,” the victim’s father, Joshua Hill told KVUE. “She was never sick, she was never in the hospital, and she never had any issues until she went into state care.”

By now thousands of people are aware that the young child had been taken from her parents on grounds no more compelling but that they admitted to smoking some marijuana at the end of the day, as their baby slept.

Typically, it is not until a tragic death such as this occurs that the true reasons for the child’s “removal” into “protective custody” come to light.

iLydia Alday

One such case concerns Lydi Alday. On June 16, 2007, KTRK Television ABC News reported that: “Funeral services were held Saturday morning for Lydia Alday at the Brookside Funeral Home in northwest Harris County.”

“Investigators say Alday stopped breathing while taking a nap at her foster home in Brazoria County. The toddler died a day before she and her younger brother were supposed to be given back to their family,” KTRK reported.

Why was Lydia in state care to begin with? The Houston Chronicle reported that according to a Department spokesperson: “because mom and dad were having difficult issues at home.”

Lingering Issues Remain

More Texas children dying while in foster care,” blares the headline on a recent report by ABC Eyewitness News 13.

The news has an ominously familiar ring to family advocates. “A spike in the number of Texas children dying in foster care is prompting state officials to demand a tougher screening process for foster parents,” Eyewitness News reports.

Ten foster children died under “suspicious circumstances” during the fiscal year that ended on August Aug. 31. Patrick Crimmins, of the state Department of Family and Protective Services, told The Dallas Morning News that four of the deaths had been ruled to have been the result of abuse and neglect, while the other six remain under investigation. And, two foster children died from abuse and neglect during the previous year.

Family and Protective Services Commissioner John Specia wrote a letter this month to the more than 300 private child-placing agencies and residential treatment centers in Texas, urging them to redouble their efforts to keep children safe,” the report notes.

That is just how many individual private agencies that Texas has today as a result of its “transformation” of the foster care system.

Specia’s letter followed critical media accounts of the Dallas-Fort Worth and Central Texas operations of Texas Mentor. The company recruited and hired the woman now charged with capital murder in the head-slamming death of the 2-year-old girl in her care.

The Boston-based company has two offices that manage approximately 130 foster homes in North Texas. Over the last two years, nearly 150 deficiencies were found in those homes. More than 50 of them were of high severity, such as when a visiting adult relative shared a bed with a foster child.

Texas Mentor is a part of Boston-based National Mentor Holdings Inc., a $1 billion-a-year corporation that provides health care and social services in 34 states, according to a writeup in the Christian Science Monitor.

On August 15, 2007, KTBX ran with a headline reading “CPS Sued over Child’s Death in Foster Care.”

“Relatives of a 3-year-old who died in foster care have sued Child Protective Services in federal court, claiming the agency allowed her to remain with the foster parents despite knowing she had been previously injured,” the story explained.

The lawsuit, filed in U.S. District Court, asked a jury to assess monetary damages stemming from the death of Sierra Odom.

Sierra died in 2005 after being hit on the head and suffocated at her foster parents’ Arlington home, authorities said. A jury had convicted foster father Timothy R. Warner of injury to a child in Sierra’s death.

The Privatization Push

Undeterred by several setbacks with their private contractors early on, Texas legislators rushed to fully privatize foster care services. In April 2007, the Austin-based Center for Public Policy Priorities issued a paper cautioning that:

  • At a time when we have children sleeping in state office buildings, privatization will make our foster-care capacity crisis worse;
  • Rapid privatization will force children out of their homes, move children into more crowded homes, and compromise their care;
  • At a time when we have over 4,000 children available for adoption but without an adoptive home, privatization will make our adoption capacity crisis worse;
  • Privatization cannot possibly be accomplished in 24 months; and
  • Privatization will cost far more than the state has calculated.

Texas hit something of a roadblock in August of 2012, when it was announced that Lutheran Social Services of the South had lost its bid to privatize foster care in South Texas because of what was reported as “a history of problems” at three of its operations.

Among other things, Lutheran Social Services staffers had “routinely failed to properly oversee foster homes, conduct background checks on families and protect youth from abuse and neglect,” according to a letter sent to the company by the state child protection agency.

On January 7, 2011, the Houston Chronicle reported: “State child welfare officials on Friday shut down Daystar Residential Inc., a home for troubled youth, one day after a foster child’s recent restraint death was ruled a homicide.”

“Today, we have revoked Daystar’s license to operate, effective immediately. The DFPS investigation found that this facility is just not safe for children,” said Anne Heiligenstein, commissioner of the Texas Department of Family and Protective Services.

“The closure, which can be appealed, was precipitated by the death of Michael Keith Owens, 16, whose death in November was ruled a homicide on Thursday.”

An Urgent Situation

In March 2007, the Houston Chronicle reported that the situation in Texas had turned into “an urgent one.”

Since September, the article explains, three foster care children — Christian Nieto, Katherine Frances and Andrew Burd — have died in foster homes selected by private contractors, revealing a lack of direct oversight of the companies’ placements. The Chronicle illustrated with some cases in point:

  • Last September, Christian Nieto, 16 months old, died of head injuries in a privately managed Corsicana foster home 60 miles from where the state thought he was living. His foster mother, who insists the boy already was injured when he was transferred to her care, has been charged with capital murder.
  • In October, 4-year-old Andrew Burd was pronounced dead on arrival at a Corpus Christi hospital after being forced to drink a mixture of water and Cajun seasoning. His foster parents, who were in the process of adopting him when he died, have been charged with capital murder, and DFPS halted future foster care placements through the company that approved them.
  • And in December, 6-year-old Katherine Frances was found fatally body-slammed in her Dallas-area foster home, one affiliated with a private company. The foster mother’s 14-year-old biological son was charged with murder.

The Children

Christian Nieto

iThe Nieto family. Photo credit: Cheryl Diaz Meyer/DMN

Christian Nieto’s mother made a mistake. She tested positive on a drug screen at the hospital where she gave birth. Naturally, the results were passed on to Child Protective Services, who dutifully removed him — along with his older brother Logan — into the “safety” of the Texas foster care system.

The Dallas Morning News reported that “the state system charged with protecting children quickly lost track of Christian and his 3-year-old big brother, Logan, after entrusting them to a private foster company that had a lengthy recent history of putting children into dangerous or deadly foster homes; at least one child had died already.”

That private agency — Mesa Family Services — thereafter “shuffled Christian and Logan through five foster homes in seven months,” the paper reports.

Christian spent his final days in a foster home in Corsicana, in the home of an overburdened foster mother. On Labor Day, he died of head injuries 60 miles away from where state authorities thought he was living. Questions arose as to whether he had received his fatal injuries in the foster home, or during a previous placement.

After Christian died, the state canceled Mesa’s $7 million foster care contract. However, state officials were well aware of the problems at Mesa before the incident. According to state records, documented infractions at Mesa homes included child abuse and neglect; improper restraints; overly harsh discipline; unfit foster parents; and failure to run required background checks on other people in the homes.

Katherine Frances

iKatherine Frances

On December 12, 2006, the Associated Press reported that: “State child-welfare officials say they’ve begun reviewing foster homes after the death of a six-year-old girl in a suburban Dallas foster home.”

The article continues: “Police and the state Department of Family Protective Services are investigating the death of Katherine Frances in the DeSoto foster home. Police say she died after her foster parents’ 14-year-old son threw her to the ground at least four times on Sunday.”

The article continues on to note that: “The home was until recently overseen by Mesa Family Services. That private agency was already under scrutiny for the deaths of two young children in its homes in the past 17 months.”

“The state Department of Family and Protective Services said it’s begun launching an “unprecedented intervention effort to address the deaths in homes formerly overseen by Mesa,” the article explains.

Andrew Burd

iAndrew Burd

According to the adoption proponents of the day, Andrew Burd was right where he needed to be. He had found his “forever family” in the home of prospective adoptive parents in Corpus Christi.

Andrew perished at the age of four, the apparent victim of salt poisoning. The young boy reportedly choked and stopped breathing after he was forced to drink salt water laced with cajun spices.

Police reportedly treated his death as a homicide because his adoptive parents, Larry and Hannah Overton, waited nearly three hours before taking him to a hospital. Court documents indicated that the boy had brain hemorrhages that appeared to be a result of some type of trauma.

No one bothered to call Andrew’s biological family about the incident. His family found out about the death on TV, and called Channel 6 News to verify that it was indeed him. The boy’s father and grandmother had fought for custody of Andrew a year earlier.

Deadly Evaluations

Richard Wexler testified before Congress, saying that one prominent child saver likes to say: “Not one child ever died of a social work evaluation.” I submit that Andrew Burd died of precisely that — and that he was by no means the first to do so.

A Child Protective Services caseworker performed an evaluation on Andrew’s grandmother, Bonnie Roy, to see if she would be “fit” to take care of him, but decided that she was not. The CPS report said, “[Her] parenting practices demonstrates some positive aspects. However, she lacks understanding regarding the abilities and needs of a two-year old child. Her approach to discipline lacks basic application skills.”

“How could you take something so innocent and so pure and destroy it? That’s an unforgivable act in my mind,” said Bonnie.1

The short answer to her question is: “With a social work evaluation.” Many other children have been so destroyed.

On January 23, 2003, the Fort Worth Star-Telegram reported that: “The grieving parents of an infant girl from Dallas want state officials to explain how she died last weekend after having been in foster care since birth. Officials said 7-month-old Yessenia Rodriguez died Saturday evening at Children’s Medical Center in Dallas after being transported from a licensed foster care home in Van Zandt County.”

In April 18, 2000, the Associated Press reported through the Dallas Morning News that: “Of the 29 children who died statewide during the 2 1/2-year period, 15 lived in foster homes while 14 were in residential treatment centers, psychiatric hospitals or mental retardation group homes.”

Just as was the case with Christian Nieto, it was a hospital that made the call to Child Protective Services after Juana Olalde took her seven-week-old son Eric to the Childrens Medical Center in Dallas, where he was diagnosed with a spiral fracture of the right femur.

Contrary to state law, the CPS workers “removed Eric from the custody of his natural parents, without consent or a court order, and the State assumed sole supervision of Eric,” the United States Court of Appeals, Fifth Circuit, explained in its ruling over the subsequent lawsuit.

The court thereafter described the conditions in the foster home into which young Eric had been placed:

CPS officials placed Eric in the home of the Clauds, a foster family with a prior history of negative reports concerning child care. The Clauds’ home was frequently described by CPS case workers as “junky” and reportedly “smelled of cigarette smoke.” Anonymous callers also complained that the Clauds sent the foster children to daycare “in dirty diapers” with too few and unsterilized bottles. Moreover, in September of 1998, Mrs. Claud brought a child to CPS with a swollen jaw that was beginning to bruise. In her response to the incident, Mrs. Claud explained that the child “just woke up with it this morning.” CPS case worker Patty Zukas brought the swollen jaw incident to the attention of Purdin and another case worker. Additionally, in October of 1998, Purdin learned that Mrs. Claud placed a device on a foster child’s bedroom doorknob, which effectively locked the child in its room, in violation of licensing standards. Following an investigation of the incident, Mrs. Claud agreed to no longer use the device in her foster home.

A CPS report into the foster home concluded that “the physical condition of the home poses a danger to any child’s health or safety.” That finding automatically revoked the foster parents’ license. In his writeup on the case, journalist Thomas Korosec of the Dallas Observer wrote that

nobody will answer the next obvious question — one that threatens to tear an enormous hole in Texas’ child welfare safety net. No one will explain why the state took a child from an environment they suspected was unsafe and put him in a home they knew to be dangerous.

This is nothing new. An audit of foster homes overseen by private agencies in Texas released by the U.S. Department of Health and Human Services in 1995 revealed:

For 19 of the 43 foster homes visited, the home and/or neighborhood environment appeared to put the safety of the foster children at risk. Neighborhood homes were boarded-up and the yards were overgrown with tall grass and cluttered with debris. Some of the foster home yards were cluttered with old tractors, lawn mowers, and cars. The foster homes were also cluttered with wastepaper, clothes, and debris.

Foster children were living in three homes identified by the child placing agency as being located in high crime areas and drug environments. During our visit to one of these homes, the foster parent explained there had been a shooting behind her house the night before. For another home, the case file showed that the neighbors to the foster home were drug dealers and the foster child associated with them. No action was taken to move the children from these surroundings to a safer environment.

Far from being the only deficiencies found, the federal auditors also found that:

  • In 71 of the 78 cases, State caseworkers did not have the required contact with the foster children
  • 18 of the 48 foster home files reviewed, the child placing agency caseworkers did not contact the children in placement quarterly and did not visit the foster homes quarterly
  • 28 of the 48 foster home files reviewed, there was no record showing that a background check was performed on all adults who lived in the foster home; and
  • 40 of the 48 homes, based on file reviews, interviews and site visits, at least one fire and/or health deficiency was noted.

That is one clear manifestation of the double-standard that caseworkers hold; they see potential “risks” in the homes of natural parents, all the while believing that they have delivered children into a safe and secure haven in foster care.

While no one can deny that some children are so endangered in their homes that rescue is necessary and appropriate, as the Children’s Defense Fund observed in its landmark study of the child welfare system:

Children are also separated from their own families because someone in authority dislikes the lifestyle or child-rearing practices of a particular family. Influenced by moral beliefs, political ideologies, or child-saving fantasies, those with decision-making responsibility sometimes fail to consider the psychological consequences to a child of removal from his family.2

The Adoption Push

The number of adoptions in Texas have drastically increased since the mid-1990s, largely as a consequence of the Adoption and Safe Families Act, and the adoption bonuses doled out to the states by the federal government. As an agency self=evaluation report issued in September 2013 proudly explains:

In FY 2005, CPS undertook Operation Placing Us in Safe Homes (or Operation PUSH) to clear a backlog of adoptions by eliminating legal roadblocks and other obstacles delaying finalizing adoptions. As a result, adoptions increased 26.3 percent in FY 2005, prompting national recognition and an adoption incentive award in FY 2006 from the U.S. Department of Health and Human Services. Texas has received this award annually since 1998 when the Adoption Incentives Program began as part of the Adoption and Safe Families Act of 1997 (ASFA).

In September of 2010, the U.S. Department of Health and Human Services awarded $39 million to several states for increasing the number of children adopted from foster care. A press release announcing the winners of these coveted fiscal prizes explains:

States receive $4,000 for every child adopted beyond their best year’s total, plus a payment of $8,000 for every child age 9 and older and $4,000 for every special needs child adopted above the respective baselines.

In that particular round, Texas received $7.5 million, besting Florida’s $5.7 million, Michigan’s $3.5 million, while leaving Pennsylvania in a distant fourth place receiving a relatively meager $2.2 million adoption bonus.

In summary, the self-evaluation report explains that: “Overall, between 2002 and 2012, the number of children adopted has more than doubled.”

The Bureaucratic Pyramid

Agency policies are passed down the bureaucratic pyramid to the street-level bureaucrats who make their critical decisions in the field. That there is an agency “preference” for adoptions over reunifications is reflected throughout the agency, from the investigators who handle the “intake” function, to the pencil pushers at their desks in the revenue maximization offices, as well as to those workers who may specialize in drafting reunification plans, or in conducting home inspections of prospective adoptive parents.

As Shannon K. Dunn explains in St. Mary’s Law Journal, “the Department and its counterparts at the county level regularly oversee the creation of service plans that are unworkable and impractical, plans that serve only to make it more likely that Texas children who have been seized from their homes will be permanently separated from their natural parents.” Dunn continues on to explain:

Although one of the purposes of a service plan is to make parents aware of the steps they must take to ensure their child’s return to them, sometimes the Department decides, seemingly on a whim, that the parents’ compliance with the service plan is not enough. In these cases, the Department will seek involuntary termination of the parent-child relationship, even though the parents have done everything the Department required of them.

Caseworkers for the Department have also admitted in court proceedings that the Department occasionally seeks termination for no other reason than that the Department has “run out of time” to work with the parents and is faced with the choice of either terminating the parent-child relationship or dismissing the case. When a service plan does not meet the mandates of the Family Code, the parent has little incentive to challenge the plan; having already been subjected to the Department’s “inherently coercive” investigation, the parent knows that any showing of defiance or “uncooperativeness” may mean that their child will never return home.

Confirmation bias plays a significant role as well. Indoctrinated with anti-family zealotry on the one hand, and the pro-adoption agenda on the other, is it any wonder that caseworkers in the field are prone to identifying deficiencies in the homes of natural parents while simultaneously overlooking the most glaring of deficiencies in foster and prospective adoptive homes?

1. Andrew’s story was assembled from various on-line news sources. There have been many questions regarding the culpability of his prospective adoptive mother, and I am personally unconvinced that she intended to harm him. See e.g., Rachel Quigley, “Mother whose foster son, 4, died of salt poisoning back in court to overturn life sentence on evidence the boy poisoned himself, The Guardian, April 27, 2012; Juju Chang And Shana Druckerman, “Family Fights to Overturn Mom’s Salt Poisoning Conviction,” 20/20 ABC News. February 15, 2010. What is certain is that had the child been reunited with his family, rather than adopted out, he would likely be alive today.

2. For an analysis of the Children’s Defense Fund report in the context of a juvenile court proceeding, see the dissent of Judge Spaeth in In Re Kunkle, 265 Pa.Super. 605 , 402 A.2d 1037 (1979).