Texas: Court Ruling on ‘Dickensian’ Foster Care System

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Texas Foster Care: Long Road Toward Reform – Part II


“The Court does not base any system-wide findings solely on the Named Plaintiffs’ experiences in foster care. Their experiences, however, paint a similar picture: children often enter foster care at the Basic service level, are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or treated, are shuttled between placements—often inappropriate for their needs—throughout the State, are migrated through schools at a rate that makes academic achievement impossible, are medicated with psychotropic drugs, and then age out of foster care at the Intense service level, damaged, institutionalized, and unable to succeed as adults.”
-U.S. District Court Judge Janis Graham Jack


Texas-class-action-ruling

While many people undoubtedly served up the beloved classic “A Christmas Carol” by Charles Dickens this holiday season, I instead found myself utterly transfixed by the Dickensian nightmare that is foster care in Texas, as described in vivid detail in the 260-page ruling in M.D. v. Abbott.

To put the matter into its proper perspective, almost exactly two years prior to the ruling, the San Antonio Express-News ran a story bearing the headline “Texas foster deaths hit grim record,” in which reporter Melissa Fletcher Stoeltje explained that: “In the past fiscal year, eight children died from abuse or neglect while in foster care in Texas, an all-time high and a fourfold increase over the previous year.”1

U.S. District Court Judge Janis Graham Jack of Corpus Christi did not mince words in the ruling that she released on December 17 of this year. The state violated the Constitution by maintaining about 12,000 youngsters for years at a time in a poorly managed system “where rape, abuse, psychotropic medication and instability are the norm.”

“Texas’s foster care system is broken, and it has been that way for decades,” Judge Jack wrote. Not only is it broken for all stakeholders, including DFPS employees who are tasked with impossible workloads. Most importantly, it is broken for a subset of Texas’s foster children “who almost uniformly leave State custody more damaged than when they entered.”

DELIBERATE INDIFFERENCE

The Department of Family Protective Services is “deliberately indifferent” toward enforcement efforts, including those of Child Care Licensing, a division of the Department. In support of this conclusion, Judge Jack provided some rather astounding figures: “A 2008 report given to DFPS listed ‘licensing oversight’ as a problem area. Yet DFPS continues to under-regulate licensed facilities. In fiscal year 2013, CCL cited licensed facilities for 6050 violations, but only issued 12 corrective actions and one adverse action. Over the past five years, CCL has issued four adverse actions against residential operations. CCL has closed only one facility in the past five years, but not until the fourth homicide.”

These homicides command a closer look, and this is particularly so if the rape, abuse, psychotropic medication and instability in placements won’t grab and hold the public’s attention. As the ruling explains it:

CCL has closed one facility in the past five years, but it is a story of horror rather than optimism regarding enforcement. The Daystar facility in Manvel, Texas had a capacity of 141 children. Between 1993 and 2002, three teenagers died at Daystar from asphyxiation due to physical restraints. In most cases, the children were hog-tied. Beyond these deaths, there were reports of sexual abuse and staff making developmentally disabled girls fight for snacks. Numerous stakeholders, including the district attorney, spoke out against Daystar, but the facility kept its license. In November 2010, a fourth child died in what was ruled a homicide by asphyxiation due to physical restraints. Daystar’s license was still not revoked until January 2011. DFPS allowed this facility—that was responsible for four deaths, numerous allegations of sexual abuse, and unthinkable treatment of developmentally disabled children—to operate for 17 years.

The ruling further explains: “The Court understands DFPS’s concern that enforcement might affect placement availability. The Court does not understand, nor tolerate, the systemic willingness to put children in mortal harm’s way.”

THE COVER UPS

Judge Janis Graham Jack is clearly a remarkable jurist, inasmuch as she had had done her homework with regard to the State’s slew of expert defense witnesses. The ruling continues on to note that one Dr. Jane Burstain, the Defendants’ so-called expert on child welfare policy, “joined DFPS after this case was filed, and is currently the Director of Systems Improvement for CPS.” The ruling continues on to explain:

Before Burstain joined CPS, she published several reports that were highly critical of DFPS. At trial, she backtracked and glossed over many of her published comments. In her current position, Burstain has improperly manipulated DFPS statistics and data. For example, to suppress primary caseworker caseload numbers, Burstain included not only full-time primary caseworkers in her calculation, but also part-time primary caseworkers, secondary workers (who do not have the responsibilities of primary caseworkers), and fictional workers “created out of all the overtime,” which “are not actually even people.”

According to the ruling, Burstain stands as culpable not only for her shifting allegiances, and of falsifying personnel records with phantom case workers to manipulate statistics and data.

On another occasion, Burstain e-mailed DFPS employees to suggest that four foster child deaths be re-characterized to negate the possibility of caregiver negligence. In that e-mail, Burstain highlighted three cases in which she thought “reasonable minds might disagree about whether the caregivers could have prevented the deaths.”… Besides the dubious implications of Burstain’s request, it is unclear why, in her exclusively policy-related role at CPS, and with no background in licensing or investigations, Burstain sent that e-mail in the first place.

The ruling notes that insofar as Dr. Jane Burstain is concerned, “The Court finds that Burstain was attempting to manipulate the State’s child fatality statistics. In light of these incidents, the Court assigns lesser weight to Burstain’s expert report and testimony.”2

Dr. Edwin Basham was among the state’s expert witnesses. The judge found that Basham contradicted himself several times, and that in one instance he’d managed to impeach himself at trial. By way of example, Basham said that “D.I.” – one of the plaintiffs – showed “substantial improvement” since entering foster care. The judge notes that “In reality, D.I. suffered three episodes of rape at the age of eight that were initiated by adolescent boys in the home over a period of two weeks.”

The judge noted in the ruling that: “The Court completely disregards Basham’s reports and testimony for this case, and is all too aware that Basham has long provided testimony on behalf of the State of Texas.”3

The judge also scrutinized the testimony of Patricia Wilson, who was also a witness for the defense. Wilson’s resume is discussed at some length, the shortest telling of it being that she traveled about a number of states in the southeast garnering credentials in the child protection industry. She worked for a time as a consultant, and for a time was a regional director for the Child Welfare League of America.

So far, so good. The problem that Judge Jack had with Wilson’s experience was that between 2008 and 2011, Wilson served as commissioner while in Kentucky. “In that role, she was the number two person in Kentucky’s Health and Social Services System,” the judge explains.What happened on Wilson’s watch while she was in Kentucky?

P. Wilson’s credibility was also undermined by the revelation that under her leadership, the Kentucky child welfare agency withheld records relating to Amy Dye, a nine-year-old girl who died in an adoptive home. The agency had apparently approved the adoptive placement despite earlier reports of child abuse in the home. The agency also failed to properly investigate, and did not substantiate, multiple reports from Amy’s school that she was being abused. Following her death, the agency performed an investigation (possibly based on an earlier report of abuse and neglect) and six months later found only that Amy’s adoptive parents were guilty of being “inattentive caregiver[s]” and using “unusual discipline.” The agency took no further action in relation to children still in that home.

There is much more, as the ruling explains: “Although the circumstances of Amy’s death are troubling, it is not clear how much blame P. Wilson is to blame, even though she was Commissioner of Kentucky’s foster care system at that time. The Court does fault P. Wilson for her agency’s refusal to release to the public the records relating to Amy’s death, a decision which was at least in part P Wilson’s. At trial, P. Wilson defended withholding the records even though it violated Kentucky law,” the ruling explains. Yet there is even more than that:

Kentucky newspapers had to take the child welfare agency to court to force the release of Amy’s records. The Kentucky court ordered the agency to release the records over P. Wilson’s objections, fined the agency, ordered it to pay the newspaper’s attorneys’ fees, and admonished the agency for turning a “blind eye” to the child abuse that was reported prior to Amy’s death.”

Wilson ignored the ruling of the Kentucky court, which may well have led to a contempt finding. As the ruling explains it: “The agency continued to withhold the records until the Governor of Kentucky ordered their release. P. Wilson then testified about transparency in child welfare investigations before a joint committee of the Kentucky Legislature, where she said that, in Amy’s case, Kentucky’s child welfare system had “not failed to operate according to the laws and rules of the State.” Wilson further undermined her credibility when she said at the present trial that foster care systems should not track child-on-child abuse, which is a critical aspect of foster child welfare. . . For these reasons, the Court accords lesser weight to P. Wilson’s report and testimony.”

THE BLIND EYE

A familiar theme to advocates is that children are removed from their homes on mere suppositions, and remain separated from their parents for weeks, months, and in many cases years of time if termination of parental rights should occur. Invariably, parents who have been run through the mill in a juvenile court will report that the system works upside down; that is to say that they felt guilty until proven innocent.4 On the other hand, when their children are obviously being abused or neglected in foster care, their reports are disregarded. This ruling specifically addressed the issue of sweeping abuse in foster care under the carpet:

This appears to be a set pattern of DFPS’s investigations of abuse in care. First, DFPS refuses to document or recognize child-on-child abuse. Second, even when a child is abused in foster care, the standards for finding that abuse occurred are impossibly difficult. It appears that, unless witnessed by an adult who admits seeing the abuse and thereafter refuses to do anything about it, the preponderance of evidence standards cannot be met. Children are interviewed and discounted. Adults are similarly discounted. The disposition of the sexual abuse of D.I. as Ruled Out is based on DFPS determining that child-on-child abuse findings would result in labeling one child a perpetrator. Certainly each child’s caseworker should have been aware of the sexualization of these three boys and, as both Defendants’ and Plaintiffs’ agree, immediately placed them in single-child placements. Instead, the only action recommended in the investigation report was “[r]outine monitoring.” This Dickensian approach to child abuse keeps the confirmed reports of abuse in care findings artificially low.

THE NUMBERS GAME

In the final analysis, it’s a numbers game, and the manipulation of data is almost invariably to the child protection industry’s benefit. When children die in foster care, agency’s fight tooth and nail to maintain confidentiality – all the while claiming that they are working toward transparency. Patricia Wilson’s role in Kentucky, as discussed above, provides a textbook-perfect illustration of this phenomenon.

When children die while in the care of their parents – an event that is statistically rare – the media and legislators swoop in demanding to know why something wasn’t done. “How can we be spending all of these millions of dollars, and not getting any results?” is invariably the question, however that may be framed. As judge Jack noted, keeping confirmed reports of abuse in care findings “artificially low” works to the advantage of the system. On the other hand, keeping the statistics regarding child deaths the occur while children are in the care of their parents artificially high also benefits the system, as it guarantees continued funding.5

Parents are frequently put into the position of having to either prove their innocence while their child’s life hangs in the balance, or they have to prove their “fitness” to be parents by virtue of complying to the last letter of a court-imposed reunification plan. In many cases, the ordered “services” are unavailable, or are entirely inconsistent with reunification.6

While children in foster care experience what judge Jack describes as a “Dickensian approach” to their care, parents on the outside experience that which has been most appropriately described as being Kafkaesque in its nature.7

INSTITUTIONAL MEMORY

Finally, the ruling notes that: “It is clear to the Court that a main reason DFPS has not improved in the face of decades’ of reports outlining deficiencies and recommending solutions is that there is no institutional memory.”

It is explained the high-ranking officials in the Texas child protection agency “never read critical reports about the departments they are charged with overseeing. It is no surprise then that Texas commissions full-scale audits of its foster care system every five to ten years, always reaching the same conclusions, but never producing improvement.”

Although the Texas child protection agency has been the subject of numerous critical reports, and has gone through several reconfigurations over the last few years, the ruling explains that there is a CPS “Transformation” currently being undertaken. This Transformation “is CPS’s response to the 2014 evaluations by The Stephen Group and Sunset Commission.”

How likely is it that the current “transformation” will work? In 2009, the Texas Legislature and Governor Perry formed the Texas Adoption Review Committee “to take a hard look at the Texas foster care system,” the ruling explains.

After drafting its recommendations, the 2009 Committee unearthed a report from 1996, produced by a similarly charged committee that was formed by Governor George W. Bush. The 2009 Committee found that 11 of its 14 general recommendations were made in 1996, leading it to conclude that “many of the same problems identified in 1996” had not been fixed.

CONCLUSION

For the past five years, Texas has been tinkering with “Foster Care Redesign.” Judge Jack explains: “Foster Care Redesign is a proven failure that Texas has not attempted to fix. The only data available shows that Foster Care Redesign has made Texas’s placement array worse. Fewer children were placed close to home. Fewer children were placed in appropriate settings. Children were still sleeping in offices. The SSCC lost $2 million in a year and a half and quit. This is not a sustainable or reasonable program.”

Even in the event that Foster Care Redesign was to be viewed in the best possible light – that of being an effective program, judge Jack’s ruling explains that: “Foster Care Redesign has reached only 2% of Texas over five years.”

There, in sum and substance, is the true extent of the Texas child protective services agency’s recent efforts at reform. Only 2 percent of the foster care population having been reached by one ineffective program.

The nation’s premiere foster care litigation team has scored a victory for children in Texas foster care. The knowledgeable, passionate, and courageous Judge Janis Graham Jack has issued an embarrassingly detailed summary of the system such as it functions today. She has also crafted out a remedy in her ruling, beginning with the appointment of a special master to overview the sweeping changes ordered by her injunction.

Time will only tell whether these efforts will ultimately prove effective, or whether we shall return to Texas some 15 to 20 years down the line, only to find the same problems still in place.


1 Melissa Fletcher Stoeltje, “Texas foster deaths hit grim record,” San Antonio Express-News, (December 28, 2013). See also Associated Press, “More Texas children dying while in foster care,” ABC 13 Eyewitness News, (September 14, 2013) (“Ten foster children died under suspicious circumstances in the fiscal year that ended Aug. 31,”). See also a prior blog entry, “Texas Foster Care: Long Road Toward Reform – Part I,” October 18, 2013, for additional information concerning the slew of child deaths in the Texas foster care system over the last few years.

2 Jane McClure Burstain certainly does get around. On July 12, 2013, she testified before the US Ways and Means Committee on Human Resources on the topic of “Child Deaths from Maltreatment” in her capacity as Senior Analyst with the Center for Public Policy Priorities. Panelists sought to convey the impression that the number of child deaths due to maltreatment should be doubled from those being reported at the time. Burstain’s testimony emphasized teen-aged mothers on the whole as presenting a high risk group for child fatalities. During the hearing, the uninitiated would hardly have suspected that any children die in foster care. With regard to shifting allegiances, the notion of buying off an outspoken critic by giving her a high-paying job in the bureaucracy is nothing new. See for example Dan Rather, “A National Disgrace,” HDNet, Tuesday, May 10, 2011. Originally aired 8:00 p.m. EST. (Dan Rather describing: “A prominent local critic of Detroit’s public schools who was put on the district Payroll at $25,000 per month.”) Transcript.

3 By his own estimate, Dr. Edwin Basham has conducted over 4,000 evaluations, at least some of which involved serious allegations of wrongdoing against children. Bashim has been reported as having been called in by child protective services in Texas to conduct a forensic evaluation in the case of Ernie Lopez, which was extensively investigated by NPR, Frontline, and ProPublica in a series exploring wrongful convictions. In his evaluation, Basham wrote that Lopez had been “referred for a psychological evaluation by his caseworker with Texas Child Protective Services (TDPRS).” See A.C. Thompson, “The Child Cases: Guilty Until Proved Innocent.” WBUR & NPR. June 28, 2011; Lee, Chisun. Aarti Shahani and A.C. Thompson, ProPublica, and Joe Shapiro and Sandra Bartlett, NPR, “The Hardest Cases: When Children Die, Justice Can Be Elusive,” part of the series “Post Mortem: Death Investigation in America,” June 28, 2011; Sonia Smith, “Another Questionable Conviction?” March 6, 2012.

4 2009-2010 Orange County Grand Jury, CACI: Child Abuse Central Index: Guilty Until Found Innocent. 2010; Chill, Paul. “Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings.” Family Court Review 41, no. 4 (2003): 457-470; Sankaran, Vivek S. “Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents.” Temple Law Review. 82 (2009): 55; Gupta-Kagan, Josh. “Where the Judiciary Prosecutes in Front of Itself: Missouri’s Unconstitutional Juvenile Court Structure.” Missouri Law Review 78 No. 4 (2013): 1245-1298; Fraidin, Matthew I. “Decision-Making in Dependency Court: Heuristics, Cognitive Biases, and Accountability.” Cleveland State Law Review 60 (2013): 913.

5 For several examples of sweeping abuse in foster care under the carpet, see generally my blog entry “Foster Care Remains a Sexual Abuse Laboratory Experiment,” November 23, 2010.

6 Dunn, Shannon K. “Yearning for Zion Raid and Its Impact on Texas Child Welfare Cases: How a Botched Rescue Effort Exposed a Need to Refocus Efforts on Effective Service Plans, The.” St. Mary’s Law Journal 41 (2009): 405 (“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”).

7 See for example Buckley, Helen, Sadhbh Whelan, and Nicola Carr. “‘Like waking up in a Franz Kafka novel’: Service users’ experiences of the child protection system when domestic violence and acrimonious separations are involved.” Children and Youth Services Review 33, no. 1 (2011): 126-133. Some would characterize the experience as offering the best of both worlds. See Dehavenon, Anna Lou. “1989–1990. Charles Dickens meets Franz Kafka: the maladministration of New York City’s public assistance programs..” NYU Review of Law & Social Change 17 (1989): 231.