Judge: State Foster Care System "Consciously Disregarded" Risks to Children

The Texas Department of Family and Protective Services for years turned a blind eye to internal failures in the state's foster care system that led to repeated exposure to physical, sexual and psychological abuse, a federal judge in Corpus Christi ruled Thursday. 

In a damning 260-page ruling, U.S. District Court Judge Janis Jack found that state officials violated the Constitutional rights of roughly 12,000 children in the foster care system's Permanent Managing Conservatorship (PMC) program, and must implement sweeping changes to ensure that children are "free from an unreasonable risk of harm."

The lawsuit was filed in 2011 by Children's Rights, Inc., a New York-based advocacy group, on behalf of the roughly 12,000 kids in PMC — these are children who are essentially stuck in the system until they age out. (See our 2011 feature for an in-depth look at the lawsuit, as well as stories from former foster children.) 

The state's lawyers had argued that "foster children do not possess an 'unlimited' right 'to be free from an unreasonable risk of harm,'" but Jack disagreed.

"All harms affect either a foster child's person or environment, and the right to be free from an unreasonable risk of these harms is unlimited," the judge wrote.

The ruling is the culmination of years of studies, conducted by state agencies and independent advocacy groups, that have exposed serious problems in the system and called for reform. And, like those reports, Jack found that the department has failed kids in PMC at every level — from "faulty investigations" to not keeping track of child-on-child abuse. 

Children's Rights, Inc., focused its lawsuit on PMC kids because they are the most overlooked within the system — they are kids who have not found a permanent home within 12-18 months. 

Jack wrote that PMC children "tend to receive fewer visits from primary caseworkers, visits that are less meaningful and more rushed, and overall more cursory casework." She cited one report that concluded that there is "often a sense that the 'clock stops ticking' when the child enters Permanent Managing Conservatorship." 

Ultimately, Jack wrote, the department "consciously disregarded" the risks that these kids face.

"The Court does not understand, nor tolerate, the systemic willingness to put children in mortal harm's way," she wrote.

One example cited in the report is the appalling history of Daystar, a Manvel residential treatment center that, according to the ruling, was the only facility to be closed by the DFPS's child care licensing arm in the past five years:
"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. [The Department] 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."
In reading Jack's descriptions of the state's expert witnesses, it's easier to understand how such things happen.

Take Jane Burstain, the current director of systems improvement for Children's Protective Services. Before she joined the department in 2012, she was an analyst for the Center for Public Policy Priorities, where she published several "highly critical" reports of the department.

"At trial," Jack wrote of Burstain, "she backtracked and glossed over many of her published comments." But she also "improperly manipulated [Department] statistics and data."

And we're not talking about slight fudging: Jack wrote that, in order to "suppress primary caseworker caseload numbers," she came up with a calculation that included "fictional workers" which "are not actually even people."

Here's more: 
On another occasion, Burstain emailed [Department] employees to suggest that four foster child deaths be re-characterized to negate the possibility of caregiver negligence. In that email, Burstain highlighted three cases in which she thought 'reasonable minds might disagree about whether the caregivers could have prevented the deaths.' One of these cases involved a child with a diagnosed history of Schizophrenia and Bipolar Disorder who hung herself in an RTC [ residential treatment center]. The child had recently been hospitalized for two weeks for suicidal ideations and self-harming behavior. The child's level of care required RTC staff to check on her every 15 minutes, but that night, the caregiver did not perform the routine checks. Another case invovled a three-month-old infant with multiple medical problems, including obstructive sleep apnea and a smaller jaw that affected her breathing. That child's foster mother placed her on her side with a foreign object (a 'vibrating pillow') in front of her and did not check on her for 30-75 minutes."
Jack concluded that Burstain "was attempting to manipulate the State's child fatality statistics."

The judge also heard from kids who were in the system, identified in court records by their initials. She wrote that their experiences paint a picture of kids who

are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or even 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...damaged, institutionalized, and unable to succeed as adults.
Just as troubling as the kids Jack heard from is one she didn't: a 17-year-old girl in PMC whose "whereabouts were unknown." 

"She was presumed to be living 'on the street somewhere,' in the Houston area, over 200 miles away from her home community of Corpus Christi, Texas," Jack wrote. 

During her seven years in the state's care, she was re-homed 19 times, arrested and taken to juvenile detention facilities four times, placed in psychiatric hospitals 11 times, and "went to emergency rooms twice for suicidal ideations and cutting." Over the years, she had been prescribed a total of 15 medications, including antipsychotics, antidepressants and pills for ADHD. 

She had 16 primary and secondary caseworkers, and attended nine different schools, including five schools during fourth grade. Throughout her time in PMC, she complained of sexual and physical abuse by staff members and other kids at residential treatment centers and foster family homes. The allegations were always "ruled out" or deemed "unable to determine" — Jack ultimately found that not all the girl's allegations were investigated, and if they were, they were terminated "without gathering important facts." 

By October 2011, she was one of ten girls living in a trailer that reeked of mildew and urine; the girls shared a bathroom, "even though regulations prohibit more than eight girls to one shower or toilet," Jack wrote.

When the girl's attorney ad litem saw her, she noticed "multiple self-inflicted cuts on [the girl's] arms and legs — including a particularly deep one on her wrist — reportedly due to the stress caused by" a sexual assault. 

By 2013, she was sent to a Houston residential treatment center, whose staff was not told that she had a history of running away and self-harm. She bolted within a week; when she was later found and brought to an emergency CPS shelter, she told the staff that "she was 'high on crack' and continuously said that she wanted to go back to a man who was 'someone that makes money off of her by having her sleep with other boys/men.'"

The shelter staff allowed her to leave after 15 minutes, Jack wrote.

In the summer of 2014, "a national missing children organization" notified the department that the girl "may have been arrested by the police and that they might have her address." A photo of the arrestee was sent to the department, but the girl's caseworker never actually met her and had no idea what she looked like, so she couldn't confirm if it was her. The girl's attorney ad litem confirmed it was the girl, but the department did not want to retrieve her "without police assistance." 

"In an appalling Catch-22, the Houston Police Department would not pick [the girl] up until [the Department] found a placement for her, and [the Department] could not find a placement until [she] was in State custody." After two weeks, a CPS employee went to the address listed for the girl, "but the person who answered the door said that [the girl] was no longer there."

She hasn't been heard from since, but at this point she's no longer the state's problem: She aged out of PMC in January 2015.

Jack ruled that she will "appoint an independent Special Master to help craft the reforms" and oversee the implementation of "policies and procedures to ensure that Texas's PMC foster children are free from an unreasonable risk of harm." 

The special master will be appointed within 30 days. 

Jack also outlined general goals, including improved record-keeping and the implementation of a "24-hour hotline for receiving and responding to reports of abuse and neglect." She also wrote that all PMC children "shall be entitled to an attorney ad litem" and a volunteer advocate. She also called for better tracking of caseworker caseloads, and for tracking of child-on-child abuse. 

It's a huge task, and it's long overdue.  

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