On January 19th, Judge Janis Jack of the federal court based in Corpus Christi issued her final order instructing the state of Texas to improve child safety in the foster care system managed by Child Protective Services (CPS) and overseen by the state Legislature. The state immediately filed an emergency motion to stay the order, which the 5th Circuit granted. Then Judge Jack put a temporary hold on her own order until after the 5th Circuit reviews the case.

Photo © Paul O'Rear (CC) — Photo © Paul O'Rear (CC)

The order is based on years of testimony in a federal lawsuit against the state of Texas. In December 2015, the court ruled that the Texas foster care system was so unsafe that it violated the constitutional rights of children in the system. Following that ruling, the Court appointed Special Masters to work with the state on developing a plan of action, which is reflected in that final order. The lawsuit and ruling applied only to children in long-term foster care (Permanent Managing Conservatorship “PMC”), excluding short-term foster care and other CPS functions, such as investigations and family support services.

Given the urgency of protecting children in the state’s foster care system, the state of Texas should take action now rather than waiting for a resolution in the courts. Specifically, Texas should immediately begin implementing the elements of the final order that are consistent with the state’s foster care vision.

From the state’s perspective, the court order asks for too much too fast. In the appeal filed by Attorney General Ken Paxton, the state argues that the sweeping changes require a substantial increase in public investment and would need to be in place so quickly that the order might compromise the state’s mission to protect children.

From the court’s perspective, although Texas has taken some strides toward improving the foster care system and addressing some of the Court’s concerns, the constitutional rights of children in foster care will continue to be violated unless the state significantly ramps up its efforts to protect foster children. The court reiterated throughout the order that Texas has some good policies in place, but “policies not practiced are of no value.” The court also expressed that financial or logistical challenges are no excuse for the state to continue violating the constitutional rights of children. Furthermore, the Court order notes that the state turned down requests to work with the Court to collaboratively craft remedies and timelines.

Although the temporary stay will likely make progress slower, and Texas balked at the timeline in the Court order, the state should continue trying as hard as it can to make the foster care system safer for children as quickly as possible. As the appeals process continues, we urge state leaders to push forward expeditiously and voluntarily with the aspects of the court order that are in alignment with current state efforts. For those parts of the Court order that are less aligned with the state’s vision, the state should begin preparing for the possibility that Texas may lose the appeal, If that happens, Texas would be expected to move forward on all of the aspects of the federal order on an aggressive timeline regardless of what the state or others may think about the changes.

The state should immediately begin implementing the parts of the Court order that are highly consistent with the state’s current approach:

High quality workforce and lower caseloads: The Court wants Texas to recruit and retain more caseworkers to reduce caseloads and serve kids better. Texas has already created more caseworker positions, raised salaries, and is implementing a new caseworker training program to do just that. Texas should strive to reduce caseloads to the Court’s recommended ranges or maximums.

Transition-aged youth: The Court wants Texas to ensure youth obtain critical documents they will need in adulthood and ensure that older youth have a plan for stability and success once they leave care. The Texas Legislature passed laws in 2017 to ensure that youth have access to things like birth certificates and social security cards. The state is now in the process of revamping its preparation for adult living services to improve the transition into adulthood. Texas is actually doing exactly what the Court wanted. There’s no reason the state couldn’t have helped determine the timeline for implementation.

Recruiting more foster homes: The Court doesn’t want children sleeping in state offices. Neither does Texas. The state has worked hard to reduce the number of children without a home, and has had successful months where no children spent the night in an office. Everyone wants a safe place for kids to land in foster care. The Court wants Texas to hit its own goals for foster care capacity. The timeline may be challenging, but there’s no reason Texas shouldn’t work hard to achieve it.

Investigating abuse and neglect in foster care facilities: The Court wants Texas to have staff who focus exclusively on investigating allegations of abuse and neglect in foster care facilities. The Legislature took steps to accomplish this. The new Investigations division at the Department of Family and Protective Services (DFPS) and the Residential Child Care Licensing (RCCL) division at the Health and Human Services Commission are still defining their roles and responsibilities and can use the Court’s order as a blueprint for how to divide their work and improve transparency and accountability.

The state should fund the parts of the Court order that are somewhat consistent with the state’s current approach:

Electronic data collection: The Court wants the state to create a central database that includes all foster youth records and numerous tracking systems to help ensure compliance with the order and improve placement decisions. DFPS is in the middle of modernizing its data collection software, known as IMPACT. It has been a slow, painful, and expensive process. And the Legislature has been reluctant to invest in additional technological advancement. In all likelihood, DFPS would like to have the electronic record system the Court describes. Adding even a single check box to IMPACT is a surprisingly slow and expensive process, though the Legislature could cover the costs if it chose to do so.

Health care: The Court wants Texas to make sure kids are receiving early and periodic health care and wants a central electronic case record to help achieve that goal. Creating such a database has proved challenging and expensive for the state so far, but Texas is imposing financial penalties in contracts with managed care organizations, child placing agencies, and general residential operations for failing to ensure timely health care access. The Court was also concerned about missing medical records. Texas has actually created a new three-day medical screen to ensure medical records are obtained early and to make sure kids without medical records have their health needs identified. This may not be the same solution that the Court called for, but it’s on the right track.

The state should evaluate the potential benefits or consequences of the parts of the Court order that are less consistent with the state’s current approach -- and be prepared to implement them if the order is upheld:

What makes a home safe for kids: The biggest areas of contention in the lawsuit are strategies for ensuring safety in foster care placements. The Court and the state have significant disagreements about the use of congregate care and how to handle sexual abuse and sexual aggression.

Congregate care: The Court is really concerned about problems that tend to arise in group or institutional care settings. The court wants the state to focus its energy on placing children in homes with families instead of more orphanage-like placements including foster group homes and cottage homes. During the 2017 session, the Legislature began phasing out foster group homes, but it also worked to expand the use of cottage home placements despite advice that it would likely be in conflict with the lawsuit and the best interests of children. The state in its appeal noted that the immediate requirements would mandate moving at least 52 children from foster group homes and finding them new placements and may disrupt numerous children in cottage homes.

Sexual abuse and sexual aggression: The Court has significant concerns about child-on-child sexual abuse. Several recommendations are aimed at reducing the likelihood of sexual assault. But the state contends that some of these are harmful to children because they label and stigmatize them for the entirety of their stay in care. This issue certainly requires additional attention and discussion.

Conclusion

The state and the Court have many common goals. At least in the areas where there is significant alignment between the state and the Court, Texas should use the Court order to set implementation goals. Until we know whether the Court order will be upheld, Texas should use the Court order as a roadmap for how to proceed. For those areas where there is less agreement on the steps to take but general agreement about the direction to go, Texas should provide the funding needed to help kids. And for areas where the state and the Court truly have different visions, the path forward is less clear. Texas should reconsider its policies on the use of congregate care because the Court order is consistent with national research about what is best for kids. However, the state’s current guidance on child sexual aggression is better than the policy changes in the court order.

This order should signal to the Legislature and the Governor's office that, although Texas has made some important progress for kids in foster care over the last year, there's still a lot left to do. Regardless of the outcome of the appeal, Texas should build on the positive steps it has taken and commit to doing what’s best for kids -- no matter who came up with the policy.

Summary of the Steps and Timeline Included in the Final Order[1]

Immediately

Caseworkers will make monthly face-to-face visits with children
Every child’s case file must include a current photograph
Children must have access to a 24-hour hotline to report abuse and neglect in foster care facilities
Investigations of abuse and neglect in licensed facilities must be conducted by staff who focus exclusively on child maltreatment
Older youth must receive critical documents needed to successfully transition to adulthood
Older youth in care will have a plan for safe, stable housing when they leave
Youth will have email accounts
Children must have legal representation throughout their time in care
Children’s medical records should be accessed and available within 24 hours of entering care
Caseloads will be tracked based on the number of children a caseworker is responsible for
The state must recruit, hire, and train more staff to reduce caseloads
Supervisors will oversee no more than 7 caseworkers and will not carry direct caseloads
Licensing standards investigations must be timely initiated and completed
RCCL has the right to suspend or revoke a license
RCCL must consider all confirmed findings of abuse and neglect and corporal punishment during the placement inspection
Lapses in reporting abuse or neglect in licensed facilities could result in termination or modification of a contract
Caregivers must be apprised of confirmed allegations of sexual abuse or sexual aggression
Electronic case record will reflect whether a child is designated “child sexual aggression” or “sexual behavior problem”
Placement summary forms must reflect past sexual abuse or sexual aggression
Caregivers must report all allegations of child on child sexual abuse
No children may be placed in a DFPS office overnight
Single child homes shall be the presumptive placement for sexualized children
DFPS will establish a tracking mechanism to determine how many children are in all placements
No children may reside in a Foster Group Home
No child may reside in a family-like placement that houses more than 6 children

February 2018

DFPS must submit a plan to ensure reimbursement to attorneys representing children in care
DFPS will submit a plan to the court for finding missing or nonexistent health records
Caseworker training will include health vulnerabilities of foster youth and how to obtain and update medical information in the electronic case record
I See You workers eliminated and all secondary workers designated as primary caseworkers

March 2018

Children must be informed about how to report abuse and neglect
All abuse and neglect hotline calls must be recorded and stored
Well-trained supervisors must review all screening decisions for hotline calls
Hotline calls that do not lead to an investigation will be referred to the child’s caseworker for follow-up
Abuse and neglect investigations must be timely initiated and completed
Attorneys ad litem must seal or expunge any eligible criminal or juvenile records
Caseworkers must help youth access benefits they are eligible to receive when they exit care
Texas shall publicly post all licensing inspections
Caseworkers will designate children as “sexually abused” in the electronic case record
DFPS will document all confirmed allegations of sexual abuse
DFPS will track and report quarterly referrals and confirmed reports of child on child sexual abuse
No unrelated children more than 3 years apart in age shall be placed in the same room
No unrelated children with different service levels shall be placed in the same room

April 2018

DFPS will identify children 14 and older in PMC who need independent living preparation services
DFPS will create a clear policy on what constitutes child on child sexual abuse

May 2018

DFPS will submit a plan to the court for an integrated computer system that will ensure all parties responsible for a child’s care have access to a current and complete case record
Caseworkers and caregivers must receive training on sexual abuse including child-on-child abuse
Caseworkers will verify the health status of every child in PMC
Statewide implementation of the CPS CPD training model
Statewide implementation of graduated caseloads for caseworkers
Comprehensive training and competency exam for all new caseworkers
Limit abuse and neglect investigations in licensed facilities to a maximum caseload of 14
Limit licensing standards investigations to a maximum caseload of 14
DFPS shall publish how many children are in each placement on a quarterly basis

June 2018

Children 14 and older in PMC will receive independent living preparations services including PAL, COS, and TPM early and updated regularly
Youth who are old enough to get a learner’s permit and want to may can take drivers education
Each child has a medical home that provides comprehensive, continuous, coordinated, and timely care, and updates medical fields of the child’s health record
Every child in PMC must receive a specific developmental assessment every year
Electronic case record will include a red flag function to notify caseworkers of needed medical follow-up
Reduce caseloads to 14-17
DFPS shall update its January 2017 Foster Care Needs Assessment
DFPS shall establish and implement a policy that requires a transition plan of no less than two weeks to change a child’s placement if the disruption is due to a change in the child’s level of care
DFPS shall begin semiannually reporting all placement moves and the reason for the moves

July 2018

RCCL will track and address concerns at licensed facilities that show a pattern of contract or policy violations
Staff will be trained on what constitutes child on child sexual abuse
All children under 2 shall be placed in a family-like setting

December 2018

DFPS shall ensure it has at least as many foster home placements for children by catchment area as it found it required to meet the needs of children established in the January 2017 Foster Care Needs Assessment

January 2019

All children under 6 shall be placed in a family-like setting

July 2019

All children under 13 shall be placed in a family-like setting

[1] Most of these listed changes only apply to children in the protected PMC class. A handful of recommendations apply to all children in foster care because that change affects children in the PMC class.