by Health Impact News Staff

The battle continues between the State of Texas and attorneys who represent more than 12,000 children in the state’s foster care system. A panel of three judges in the Fifth Circuit Court of Appeals in New Orleans heard arguments Monday, April 30, about the constitutionality of the state’s troubled foster care system.

This is the latest chapter in a fight to change the system in which, according to U.S. District Judge Janis Graham Jack,

… children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.

After Judge Jack ruled, in December 2015, that the system as it stood was unconstitutional, Texas Attorney General Kenneth Paxton appealed the decision, defending the state’s foster care system.

See:

While children continue to be raped, abused, and drugged as they are shuffled around in the foster care system, lawyers have kept the legal battle going on in the courts since the lawsuit was originally filed.

The Fifth Circuit panel heard oral arguments this past Monday (April 30, 2018), and the decision could take between three to six months to be handed down.

According to Courthouse News Service:

Even in acknowledging the system’s failures, however, it was unclear from oral arguments [on] Monday just how much of the 2015 ruling from U.S. District Judge Janis Graham Jack of the Southern District of Texas the Fifth Circuit is likely to uphold.

The Judges on the Fifth Circuit panel who heard the case are Judge Edith Brown Clement, Judge Jerry E. Smith, and Judge Patrick Higginbotham.

Paul Yetter of Houston of Children’s Rights, a New York-based advocacy group, argued on behalf of the state’s foster children. Joseph “Jody” Hughes, Assistant Attorney General under Kenneth Paxton, represented the state of Texas in defending the foster care system.

Texas Foster Care: Children Have Five Times Greater Chance of Post-traumatic Stress Disorder than Combat Veterans

Sabrina Canfield of Courthouse News Service reports:

Jack’s scathing 260-page December 2015 order blasted Texas for running an understaffed foster care system where “rape, abuse, psychotropic medication, and instability are the norm,” in violation of children’s constitutional rights to due process. After that 2015 ruling, Jack appointed two special masters to the case. In late 2017, the special masters made 56 recommendations to improve the care the Texas Department of Family and Protective Services provides in its long-term foster care system. Among the suggestions were hiring more case workers, capping the number of children each case worker can handle, and providing foster kids with driver’s education before they leave the system. The judges on Monday appeared to be very familiar with the history of the case, filed in 2011 against then-Governor Rick Perry, who is now the U.S. Secretary of Energy. Joseph “Jody” Hughes, assistant solicitor general under Paxton, told the judges it would be impossible to put each foster child into a home to receive individualized care, because there are so many thousands [of] children in need of the system and “not everyone can be a foster parent.” Fifth Circuit Judge Edith Brown Clement, a George W. Bush appointee, asked Hughes: “How does it work?” — that Texas has simultaneously taken on more case workers but also more foster kids.

According to Dallas News, Judge Clement also:

…suggested the department went easy in regulating private foster-care providers, who tend to 90 percent of youngsters in CPS’ care, because it didn’t want to “lose facilities.” She also questioned why the state opposes caseload caps.

Judge Patrick Higgenbotham had serious concerns about the trauma suffered by foster children, as reported by Courthouse News Service:

Fifth Circuit Judge Patrick Higginbotham, also a Reagan appointee, noted that foster care in Texas looks bleak by statistics. For instance, he said, children who pass through the system “have a five times greater chance of having post-traumatic stress disorder than combat veterans.” [Emphasis by Health Impact News.] Higginbotham criticized the state’s “unnecessary separation of siblings” and sounded chary of Hughes’ cheerful announcement that foster care kids can attend college for free at any Texas state institution through a fee-waiver program. “Come on,” Higginbotham said, “these are not college-bound kids. … This is a machine that spins itself.”

Dallas News adds:

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.” He noted data showing 70 percent of the girls’ babies wind up back in CPS custody.

Foster Children Becoming Adults: Unemployment, Homelessness, and Sex Trafficking Represent a Failed System

Courthouse News Service cuts to the chase:

Though he credited the Legislature with trying to fix the system with money, he said money alone could not solve the problems: “The real problem here is the system.” Paul Yetter of Houston, lead counsel for the children, called it a self-perpetuating cycle of abuse. Noting that Texas does not even bother to track the abuses — which abuses happen when, where, to whom and by whom — there is little hope of stopping them.

San Antonio Express journalist Allie Morris, writing from Austin, investigated and interviewed some of the plaintiffs in the case and found out that some of the original foster children plaintiffs today are either missing, or have aged out of the system and are now adults.

Morris interviewed Alyssa Murphy, now 20 years old and an adult who has aged out of the Texas Foster Care system. Alyssa is one of the original plaintiffs in the state’s ongoing foster care lawsuit that began in 2011, and which was just recently heard at the 5th Circuit Court of Appeals as noted above.

Alyssa is …. fighting to change the system, as one of nearly a dozen foster children named in a 2011 class-action lawsuit against the state that alleges abuse, too many moves, and a lack of caseworker contact in foster care. “I feel like a dead person walking in a body,” said Alyssa, who is just over 5½ feet tall and has straight, auburn hair hanging down her back. “I don’t want anybody else feeling that way. I mean, [when] you get taken from your home, you are supposed to be put in a better place, not tortured.” Seven years have passed, and the suit is far from over. By now, Alyssa and at least four other original plaintiffs are adults who won’t benefit from any future reform. After aging out of foster care, they disappeared and faced homelessness and unemployment. Some had children of their own who are now in the system, according to interviews and court records. Those dire outcomes are common for the roughly 1,300 Texas children who age out of foster care each year without a permanent home, according to experts.

Karen Langsley, a representative for one of the plaintiffs, was also interviewed by the San Antonio Express:

The multigenerational problem of foster care is breathtaking. These kids are going to turn 18, and they have nowhere to go, no skills…

Langsley’s original plaintiff, referred to as D.P., aged out of the system and no longer has contact with her:

Five years ago, a party thrown on D.P.’s 18th birthday celebrated not only her transition to adulthood but her release from a residential treatment center in San Antonio. Langsley remembers watching with trepidation as D.P. packed her belongings into the car of a family that agreed to take her in. Within two weeks, the family kicked her out and D.P. was homeless. A year later, she gave birth to a baby. After trying to sell the child, D.P. eventually traded her baby for a dog, Langsley said. The infant soon came into the care of Child Protective Services and tested positive for a sexually transmitted disease before being placed into foster care, said Langsley, who has not heard from D.P. since then. Her situation isn’t unique. Nearly half the women who age out of foster care in Texas are pregnant by age 19, and nearly three out of four of those children end up in foster care, according to testimony cited in the court orders.

Another original plaintiff in the lawsuit, a foster child referred to as K.E., has also now disappeared:

After turning 18 in 2013 and aging out of foster care, plaintiff K.E. disappeared, said her representative in the suit, Attorney John Cliff Jr. The Odessa girl and her brothers were pulled from their mother’s care a decade earlier. Almost immediately, the state seemed to give up on the 8-year-old, noting in K.E.’s file that she “will likely age out of care,” according to court records. After that, K.E. was rotated among 27 different placements, rarely staying in one for more than a few months and, at times, moving in the middle of the school year. “She didn’t trust anything (CPS) told her. She didn’t want CPS involved in her life, whether it was good, bad, indifferent,” Cliff said. “She just wanted to be freed of them.”

The leading plaintiff in the lawsuit, a foster child referred to as M.D., has also aged out of the system and is currently missing:

The lawsuit’s lead plaintiff, M.D., was missing before Jack issued the order. Before the girl turned 16, she had run away onto the streets of Houston and into the sex trade, according to court documents. After she was found before Thanksgiving in 2013, authorities brought M.D. to a children’s emergency shelter. There, she said, she was “high on crack” and asked to go back to her pimp before staff let her leave, court documents said. The state later got a possible address for M.D., but the girl’s caseworker had never met her and wasn’t sure it was the right girl. By the time the state tried to retrieve her two weeks later, she was gone, according to court records. Months later, she turned 18 and aged out of care.

Read the full article at the San Antonio Express. (Subscription may be required.)

In the meantime, the State of Texas is claiming that these are cherry-picked cases and not representative of the entire system, as they fight to resist Judge Jack’s orders to abolish the system and reform it, disagreeing with the judge that these cases are actually “the norm.”

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