Judges Wrestle Over Whether Texas Mistreats Foster Kids So Badly, It Tramples Their Rights

NEW ORLEANS -- A panel of three judges appeared divided Monday on whether Texas has breached the U.S. Constitution in how it treats foster children -- and if so, what should be done about it.A top assistant to Attorney General Ken Paxton and a Houston lawyer who's been the lead counsel in a long-running class action suit on behalf of nearly 11,000 children in long-term foster care clashed for an hour at the 5th U.S. Circuit Court of Appeals in New Orleans.Their argument was over whether judges should embrace or reject U.S. District Judge Janis Graham Jack's 2015 ruling that the state's system is "broken" because it subjects already unfortunate youths to mayhem and harm.By luck of the draw, the panel included three jurists appointed by Republican presidents.Judges' questions at oral arguments don't necessarily signal how they'll eventually rule.Still, the oral arguments seemed to leave the state's prospects for outright victory -- meaning, complete rejection of Jack's findings and proposed remedies -- uncertain at best.Appeals Court Judge Patrick Higginbotham of Austin, formerly of Dallas, zeroed in early and often on the state's failings."Kids that come out of here have a five times greater chance of having post traumatic stress disorder than combat veterans," he said.Higginbotham, plucking statistics from plaintiffs' lawyers' briefs, repeatedly appeared to convey deep skepticism about how well the Department of Family and Protective Services treats children in its custody.Citing high pregnancy rates among girls who age out of foster care when they turn 18, he said, "This system is almost self-perpetuating."'We do care deeply'The department, parent agency of Child Protective Services, is the main defendant in the suit.In the case, it has been under fire for letting too many youngsters linger in foster care for years because their birth families remain unsafe and no one wants to adopt them. The agency too often yanks them from home communities and sends them far away, causing new traumas, experts have said for years.Joseph "Jody" Hughes, assistant solicitor general under Paxton, said Texas is, like many states, struggling to care for abused and neglected children during an epidemic of drug abuse by parents. It has a high poverty rate among children, he noted. Unlike some states, Texas CPS has a low "removal rate," and so kids who enter the system are as a rule more troubled and damaged than their counterparts nationally, he said."Yeah, we're not the best maybe," Hughes said during his rebuttal time. "But we do pretty well."Earlier, he said, "We do care deeply about these children."Hughes said the state's making improvements and that any shortcomings that persist aren't the "conscience shocking" type needed to justify judicial intervention under the Constitution's 14th Amendment.'Turn a blind eye'Paul Yetter, a Houston business litigator who's been lead counsel for the plaintiff children, said the state's been asleep at the switch. It's let problems fester, and avoids being fully transparent because it fears even graver failures will be exposed, he said."If you consciously, willfully turn a blind eye to known, chronic problems -- over decades -- that's willful indifference," he said. It's enough to justify Jack's actions, he said.Hughes, though, denied the state manipulates data it reports to the federal government, which pays most of the tab for foster care.Judge Jerry E. Smith of Houston, who presided, scoffed at Jack's main remedy -- imposing a cap of 17 children per CPS "conservatorship" caseworker, the type of worker who checks on foster children and appears in court to report on their well being.Imposing maximum caseloads would be "overly mechanistic," ignoring differences in the difficulty of cases and Texas' geographic diversity, he said.Smith also lampooned a Jack requirement that children about to age out of foster care be given more instruction on driving and how to secure driver's licenses. That has nothing to do with children's constitutional rights to be kept safe while in state care, he said.Lingering questionsJudge Edith Brown Clement of Louisiana suggested the department went easy in regulating private foster-care providers, who tend 90 percent of youngsters in CPS' care, because it didn't want to "lose facilities."She also questioned why the state opposes caseload caps. Clement appeared perturbed by Yetter's description of foster group homes as serving a dozen or more children, if biological and adopted children are counted. As few as one or two adults can be in charge, he noted."What are those adults paid," Clement asked Hughes.He said he would provide the information.In a written statement, Paxton said the session made him "optimistic" the state will win."We successfully demonstrated the absurdity of the lower court's ruling," he said. "The directives from the lower court would reverse the progress Texas has made since the Legislature made reforms to the foster care system last year."Yetter, the plaintiffs' lawyer, said he was encouraged by how much homework the three judges did."They'd obviously read the record," he said.Marcia Robinson Lowry, founder of New York-based Children's Rights, which brought the suit, noted it was filed in March 2011."It was wonderful to have the argument after this case was filed seven years ago," said Lowry, now with the advocacy group A Better Childhood. "They were familiar with the record," she said of the judges. Massachusetts and Arizona citedJack, of Corpus Christi, is an appointee of former President Bill Clinton. She has proposed to name monitors and watch the state to be sure it complies with her dozens of proposed requirements.On Monday, Paxton noted the state already spent $1.4 million on two special masters who advised Jack. The money helped "produce a plan that fails to improve the realistic operations of the foster care system," he said.One of Paxton's main legal arguments is that it's not enough for plaintiffs to show a government program isn't properly organized and managed. In a recent brief, he cited a 1996 U.S. Supreme Court decision involving Arizona prisoners' access to law libraries and legal assistance.Also, he stressed that four years ago, the 1st U.S. Court of Appeals in Boston upheld a district judge's ruling that Massachusetts had improved its foster care system to the point at which it was sufficiently safe under the 14th Amendment. The Bay State's system thus was not in need of continuing oversight by a judge, Paxton noted. Nor is Texas', he argued.Yetter and Lowry, though, noted that Jack ruled in exactly the opposite way of the trial judge in Massachusetts. She found Texas' system is unsafe, they stressed. So the cases aren't comparable, they said.The children's lawyers also said Paxton misapplied the Arizona prison case. Ruiz v. Estelle, a suit inmates brought in the 1970s that challenged prison conditions in Texas, provides precedent for what Jack's proposing to do in foster care, they said."It cannot be that the Constitution affords less protection to foster children than to the involuntarily committed or convicted criminals," the plaintiffs' lawyers wrote in a recent brief.The panel could rule completely in Paxton's favor, totally uphold Jack's actions or take a middle course -- sustaining some of her work while knocking down other parts.It's likely the state or plaintiffs would ask for the full 5th Circuit, which has more than a dozen active judges, to review the panel's decision. Either side might then ask the Supreme Court to reverse the circuit's ruling.The panel could take "three to six months" to decide, Yetter said.Lowry said that, in addition to the Massachusetts case, her current and past groups have lost a case in Nebraska. But they've won all 16 other foster care suits they filed, against states and county-run systems across the country, she said."We're hopeful," she said.  Continue reading...

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