AUSTIN (KXAN) — Twelve years into a lawsuit over the treatment of Texas children in long-term foster care, a federal judge will consider taking some of the toughest and most extreme actions yet against the state.
Lawyers representing thousands of children in the state’s care asked U.S. District Judge Janis Graham Jack to not only fine the state for not complying with certain court orders for reforms but also to consider placing parts of the child welfare system into what’s called a receivership – a mechanism typically used in corporate law, which allows a court appointee to take control of an entity.
In their filing requesting this step, the plaintiff’s attorneys argued the court is “entitled” to worry about whether the state will “self-correct” the problems facing the Texas system.
“Children in the Texas foster care system have been unsafe for decades,” they wrote. “The State’s persistent noncompliance means that PMC [Permanent Managing Conservatorship] children continue to face the risks of otherwise avoidable neglect; physical, sexual, and emotional abuse; and even death,” their filing reads.
Attorneys defending the state responded by calling the move an “extraordinary remedy” that would be “inappropriate and unwarranted.”
They argued Texas has “indisputably complied with the vast majority” of the court’s orders and “at minimum have made good-faith efforts to comply” with others.
‘Damaged’
The lawsuit dates back to 2011, when a national advocacy group from New York City sued several state agencies and top state leaders, accusing them of violating foster children’s constitutional rights to be free from an unreasonable risk of harm.
Over the years, Judge Jack has repeated a sentiment from her 2015 ruling in the case: that kids often leave the system “more damaged than when they entered.”
In 2018, the Fifth Circuit Court of Appeals upheld parts of her ruling and ordered Texas to comply with some of her specific reforms — called remedial orders – including those imposing caseworker limits and outlining ways the agencies should screen and investigate reports of abuse and neglect. The next year, federal Court Monitors appointed by Judge Jack to oversee the system filed their first report.
By 2021, the monitors reported more than 200 children slept in state offices and other unlicensed placements for multiple nights, leading experts and advocates pointing to a “capacity crisis” in the system with not enough beds or placements for high-risk children.
Over the course of the litigation, Judge Jack found the state in contempt of court twice.
‘Extremely rare’
Stacy Sharp, an adjunct professor at the University of Texas at Austin School of Law and licensed foster parent who has followed the lawsuit as an observer, told KXAN that the use of a receivership in this capacity would be rare.
“The relief plaintiffs are seeking, of course, is not about managing a company’s money in this case … but they are asking for the same kind of control,” Sharp said.
The plaintiff’s filing documented other times this step has been taken, including a receivership placed over California’s prison medical system in 2006 and one placed first over parts of the District of Columbia’s fraught child welfare system in the 90s. Eventually, the court ordered a systemwide, full receivership in D.C.’s case, court records explain.
The plaintiff’s attorneys noted in the filing, it is “not an enforcement tool to be taken lightly.” However, they referenced a quote from the California example in saying it may be a “drastic but necessary” tool.
‘Profound federalism concerns’
Private attorneys with Gibson, Dunn & Crutcher, who are now leading the defense for the state, argued replacing state officials by a federal appointee “raises profound federalism concerns—even more so than injunctions or contempt,” they wrote in their filing.
“To the extent the Court even has power to impose such a remedy, nothing about this situation warrants such drastic, sweeping relief—as even plaintiffs seem to recognize,” the defense wrote, noting that the plaintiff’s attorneys urged the court to consider only a partial receivership.
Sharp agreed that a receivership in this context would be a more invasive use of federal power than other steps we’ve taken in this lawsuit so far, such as the appointment of the Court Monitors.
“Under the Constitution, States have power separate and apart from the federal government. It’s not a simple hierarchy; the federal government is not the mothership,” she explained, noting that one of the states’ most classic types of power is known as the “police power” to govern the citizens’ safety and welfare.
“Plaintiffs are asking a federal court to take control of a state agency that is specifically tasked with ensuring children’s safety and welfare—a core state role. This makes the request particularly unconventional, implicating the constitution,” she said.
On the other hand, Sharp said the court has a lot of discretion to control the parties when they are not complying with court orders – a point the plaintiff’s attorneys also emphasized in their request of the judge.
“Just because it hasn’t been done in the Fifth Circuit before doesn’t mean she [Judge Jack] cannot or will not do it. In the past, in this case, she’s clearly decided that the State’s conduct calls for extraordinary intervention,” Sharp said.
This is a developing story. KXAN will be monitoring the hearing and will update this story when more details become available.
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