Part I: Federal Foster Care Lawsuit and the 5th Circuit Opinion

This is part one of a five-part policy brief: Opportunities to Protect Children During the 2019 Legislative Session.


In 2011, children in long-term foster care (Permanent Managing Conservatorship or PMC) brought a class action lawsuit against the state of Texas alleging the state had violated their constitutional rights by subjecting them to an unreasonable risk of harm while in the state’s care. In 2015, a U.S. District Court judge found the state liable for violating the rights of thousands of Texas children. In 2018, the District Court ordered a permanent injunction against the state with detailed steps Texas must take to remedy the constitutional violations.


The state appealed, and in October 2018, a panel of three judges on the Fifth Circuit Court of Appeals, all appointed by Republican presidents, held that Texas had violated the constitutional rights of children in foster care. The Fifth Circuit findings include:

  1. Texas’ repeated failure to reduce caseloads and address caseworker turnover meant that children waited unreasonably long periods of time to see their caseworkers or children lacked a stable relationship with a consistent caseworker;

  2. Poor record keeping exacerbated the situation as new caseworkers had difficulty accessing complete information about their cases; and

  3. Unchecked systemic deficiencies in the monitoring and oversight of licensed caregivers or foster care facilities put too many children at unreasonable risk of harm.

On questions of inadequate placement array and a number of broader issues relevant to transition-aged youth and access to health care, the Fifth Circuit did not find a constitutional violation and cited steps Texas was taking to address these challenges, including the rollout of Community Based Care to more communities.

Despite affirming the majority of the District Court’s findings on liability, the Fifth Circuit panel found some of the District Court remedies went too far and remanded the case back to the District Court with specific instructions on the remedies necessary to achieve constitutional compliance.

Where It Stands

On November 20, 2018, the District Court issued a new injunction against the state requiring DFPS to reduce caseloads, strengthen monitoring and oversight of licensed foster care, and improve its data system. The stay pending appeal from the original injunction is still in place, so the state does not have to comply with these changes yet. The Fifth Circuit has expedited the appeal schedule, and briefs are due February 19, 2018. Leaders for DFPS have stated that the department has spent around $7 million on the lawsuit to date. In addition, DFPS has requested $46 million from the state to assist with lawsuit compliance.

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