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Is the New Head of Texas's Broken Foster Care System Really Interested in Reform?

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One of the things Greg Abbott and Ken Paxton were able to accomplish in their years-long defense of the state's foster care system in a class-action lawsuit was get a girl named DP off the state's back.

In 2011, when New York-based Children's Rights sued the state on behalf of 12,000 children in the state's care, DP was a 15-year-old foster child who'd been in the system for about nine years. When the lawsuit was filed, DP was a named plaintiff. She was chosen as a class representative because her maltreatment in state custody was, according to Children's Rights, typical. 

DP went into the system after her mother gave birth to a baby who tested positive for cocaine. DP and one of her sisters lived in two foster homes before the sister was adopted. She subsequently went to live with an aunt, but she soon accused the uncle of sexually abusing her. The family kicked her out. She was medicated, stuck in psych hospitals and often ran away. 

At trial in December 2014, DP's former attorney ad litem described seeing the girl at a Houston facility called IntraCare. Karen Langsley said the girl was chemically restrained with a cocktail of Benadryl, Haldol and Ativan.

"She couldn't lift her head off the table," Langsley said.

The girl's caseworker was 150 miles away, in Lockhart. Although DFPS assigns secondary "I See You" workers to kids who are placed far away from their caseworkers, Langsley testified that she never met or spoke with one of these workers during her time with DP.  The child was moved 54 times in 12 years. 

By the time U.S. District Court Judge Janis Jack called for reforms and excoriated the Texas Department of Family and Protective Services for turning a blind eye to rampant abuse, DP had turned 18 and had aged out of the system. She was no longer the state's concern. Then-Attorney General Greg Abbott resisted change so effectively that DP was too old to benefit from the improvements ordered by Jack.

After DP got booted from the lawsuit, Langsley testified, she lived on the street, got pregnant and tried to make money off her baby.

"I'll give you the baby," DP told strangers, according to Langsley. "You can adopt if you put me up in a hotel."

Amazingly, Langsley said, DP wound up trading her baby for a dog. But after four months, the people who took the baby grew tired of it, and called CPS, which soon determined that the child had gonorrhea. Langsley testified that she hears from DP once or twice a year, whenever she needs money. In foster care, the girl never got a GED, never learned how to fill out a job application. 

Ken Paxton has now assumed Abbott's role as a crusader against adequate care for vulnerable children, and he and Abbott have vowed to appeal Jack's rulings. They have had remarkably little push-back from legislators and other officials.

And the department's commissioners have largely served as decorative placeholders — Hank Whitman, who officially starts next month, will be the eighth since 2004. The way we see it, he has two choices: work closely with the court-appointed special masters and embrace their plans for turning the department around, or twiddle his thumbs, knowing that his boss, Abbott, does not agree with Jack's rulings and is going to appeal.

We are especially interested in learning what, if anything, Whitman plans to do about a division of the department that has a 75 percent error rate in investigating outcries of child abuse. This is a division that knowingly — knowingly — allowed eight children to remain with their tormentors, according to an internal DFPS review that came out at trial. 

Whatever Whitman's desire, we think the public that pays his salary has a right to know what they're inheriting. The department apparently disagrees. 

When we asked department spokesperson Bryan Black if Whitman supported an appeal, and what he plans to do about the abysmal investigative error rate, we were given the kind of meaningless non-statement that department flacks have been issuing for decades: "Chief Whitman is determined to use all the tools at his disposal to overhaul Child Protective Services in Texas. As he takes over this critical post he is focused on providing new direction, clear goals and high accountability to ensure Texas children are safe.”

Of course, it all depends on what "safe" means when it comes to Texas's foster care children. Jack ruled that the state is required to see that these kids are "free from an unreasonable risk of harm." But Abbott and Paxton disagree with that standard, arguing that the state only owes foster children the "right to personal security and reasonably safe living conditions." 

Earlier this month, a handful of legislators told the Houston Chronicle's Lisa Falkenberg that they would agree to a special legislative session devoted to funding DFPS. We wanted to see if those legislators believed that Whitman ought to say which standard he'd like to apply to the children in his care: Jack's, or that of his new bosses?

Houston-area Representative Sarah Davis's spokesman did not respond to multiple requests for comment. Another local lawmaker, Garnet Coleman, told us in a statement that the public deserves to know where Whitman stands. But he also pointed out that, as an Abbott appointee, Whitman and the governor "likely agree on how the legal case should proceed."

Representative Chris Turner of Grand Prairie has been especially outspoken on the department's woes. He told us that Whitman should let the public know soon where he stands on the appeal, saying Whitman "has the right to have enough time to get his arms around what he's dealing with, which is an incredible task. But certainly, once he knows how he wants to proceed, he needs to let everybody else know. And I expect that he would.”

Turner believes the state should heed Jack's ruling, explaining, "I think that the longer the state and the Attorney General drag this out in court, the longer it takes for us to implement real reforms, and to get down to the real business of what's needed, which is protecting these incredibly vulnerable children." He added that this would also allow Paxton "to focus more time on his own legal troubles, multiplying by the day.”

We also reached out to Longview-area legislator David Simpson, who has gone to the heroic lengths of tweeting about the issue, issuing the sort of generic sound bites that would make DFPS flacks proud: "This must be a priority, the system is broken  beyond comprehension. We can't continue to put these kids at risk."

When we asked Simpson if he believed the public ought to know where Whitman stood on the appeal and on leaving kids with the people who beat them, his spokesperson told us that he had no comment at this time. 

A coalition of child welfare caseworkers, however, is calling on the state to drop its appeal. Their voice is important; a lengthy class-action lawsuit and several internal and external reports reveal the supervisory oppression that front-line workers deal with. They're often afraid to speak up, and their bosses seldom know what's going on. Senior department officials who testified at trial drew blanks and shifted responsibility more times than one could count. 

And while some of those bosses either left or were forced out after trial, an internal email from the department's deputy director of region 3, comprising Dallas-Fort Worth, Arlington, Plano and Denton, shows a remarkable unawareness of the sorts of dangers and problems revealed during four years of litigation. 

"There is concern that our current system is not functioning in the way it should to ensure child safety in every case," the deputy director wrote to colleagues in a March 31 email with the subject line, "Need ideas for Investigations - Please Brainstorm! Be creative! Be bold!"

She continued, "We are being given a really amazing opportunity to think of what we feel would be the perfect system for investigations." She called for her fellow regional directors and their staffs to "REALLY think outside the box.  Try not to only think of ideas that would work within our current system but ideas of how we could create a system that would work better. Consider how other service industries function."

She added, "I want to hear from your front line staff, their voices are very important to me! Let the creative juices flow and be BOLD! We have the opportunity to go for it right now so let's do just that!!"

Apparently, no one told the deputy director of one of the state's most populated regions that DFPS does not have an "opportunity" to improve a 75 percent error rate in investigations, but rather a federal court order to do so. 

Having a federal judge breathing down your neck is a good way to incentivize reform. But if Abbott and Paxton have their way, that pressure goes away, and it's business as usual. And the longer they fight to keep things the same, the longer they can push aside children like DP, who will age out of the system and become a problem for local law enforcement, and not the Department of Family and Protective Services. 

Langlsey, DP's former guardian  attorney ad litem, testified in December 2014 that no one had been able to locate DP after she had been released from Travis County Jail. 

"She really kind of liked being in jail," Langsley said. "Because they put her back on her meds and she had a place to stay." 

For now, DP is on her own again. Abbott succeeded in keeping the federal court order that may have helped her in abeyance. A successful appeal would ensure there would be thousands more just like her. 

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