Updated at 5:15 p.m.: Revised to include Paxton spokesman's comment. Updated at 4:25 p.m.: to add reaction from plaintiffs' lawyer Paul Yetter.

AUSTIN -- Texas will have to submit to a federal court’s supervision of plans for relieving the “crushing” workloads of Child Protective Services caseworkers who track foster children, a federal appeals court has ruled.

U.S. District Judge Janis Graham Jack of Corpus Christi and her court-appointed monitors also must sign off on the state protective-services agency’s studies that are designed to reduce workloads of residential child-care licensing investigators and inspectors, the appellate judges agreed. A trial judge has said state licensing personnel have failed to police foster-care providers.

The state also must make sure that foster group homes have 24/7 “awake-night supervision” by an adult, as Jack has insisted, according to a three-judge panel of the 5th U.S. Circuit Court of Appeals.

But the number of kids in such homes can’t be limited by Jack, said the all-Republican panel.

Nor should the Texas Department of Family and Protective Services be required to buy an expensive computer system or immediately jettison a stop-gap arrangement for making monthly checks on remotely placed kids, said a unanimous opinion by Judge Edith Brown Clement of Louisiana.

More than three months after the panel heard arguments, it responded to state Attorney General Ken Paxton’s complaint that Jack went too far in recasting her remedy order in a long-running, class-action lawsuit over Texas foster care.

Texas has spent at least $9.7 million fighting the suit. Plaintiffs' lawyers, some of whom have sued numerous states for running shoddy systems of foster care, have said they've never encountered more massive resistance than in Texas.

On Monday, Paxton spokesman Marc Rylander applauded the appellate judges for recognizing that “several key aspects of the district court’s order were an abuse of discretion.” Without offering specifics, Rylander said the remedies the panel eliminated “were not necessary to remedy any constitutional violation” and would have cost taxpayers “many millions.”

“We applaud the 5th Circuit for rolling back this significant judicial overreach by” Jack, he said. Rylander said Paxton’s office is “still reviewing today’s decision and considering whether further action is needed.”

Marcia Robinson Lowry, executive director of A Better Childhood, one of two New York-based advocacy groups bringing the suit, said plaintiffs' lawyers were still reviewing the 39 pages issued by the panel.

"But we think it's still a strong decision," she said. "We are disappointed of course with things the majority disallowed, such as the computer system. But overall, they continue to uphold a decree that is going to have a substantial impact on how foster care services are provided."

'Broken system'

In December 2015, Jack, an appointee of former President Bill Clinton, found that Texas runs a “broken” foster care system for children who aren’t reunited with birth families or adopted out. It’s a system “where rape, abuse, psychotropic medication and instability are the norm” and children “almost uniformly leave state custody more damaged than when they entered,” Jack wrote.

Paxton, Gov. Greg Abbott and state GOP leaders have accused Jack of overreach. They said she ignored improvements the state is making at CPS, such as a $12,000 raise for CPS front-line workers in December 2016. State leaders also have touted their plans to further privatize foster care, using a “community based care” model that is more expensive.

Why is it so hard for the State of Texas to do right by these children? Why does the state keep fighting? Hopefully, now we'll just do what's right. #txlege https://t.co/3GPMPZ1Eft — Senator Kirk Watson (@KirkPWatson) July 8, 2019

The suit centers on the welfare of children in Texas' permanent managing conservatorship. At the end of May, there were 11,321 children with that status, said department spokesman Patrick Crimmins.

Appeals Court Judge Patrick Higginbotham castigated Texas officials for caring more about human embryos -- “potential life,” he called it -- than children born to misfortune.

“The State’s noble enterprise to take custody of these children is being hollowed by bureaucratic wrangling and ineptitude, a threatened stain on Texas -- and a retreat by this court, once a refuge for such innocents, ready to enforce federal law when a state fails its obligation to do so, as it must,” he wrote in a partial dissent to Monday’s ruling.

Previously, the panel rejected Jack’s findings that an inadequate array of placements helped create an unconstitutional system. It also tossed her ruling that foster group homes “in and of themselves” posed an unconstitutional threat of harm to the kids.

But the panel upheld Jack’s findings that overburdened CPS “conservatorship” caseworkers and ineffective monitoring and oversight of the system by a residential child-care regulatory unit, now housed at the state Health and Human Services Commission, tipped the system into unconstitutional conditions. Specifically, children are at such risk of harm, the state is violating the “substantive due process” clause of the U.S. Constitution’s 14th Amendment, Jack found.

Caseload dispute

In January 2018, she proposed caseload caps for all three types of employees -- a maximum of 14 to 17 children per CPS conservatorship worker and no more than 14 active cases for the licensing investigators and inspectors. But last October, the appellate judges slapped that down.

U.S. District Judge Janis Graham Jack has had significant chunks of her liability findings against Texas overturned but appears still to be poised to oversee required improvements in CPS caseworkers' caseloads and the monitoring and oversight of private foster-care providers. (Rachel Denny Clow / File 2015/Corpus Christi Caller-Times)

Calling Jack’s caseload caps too “blunt” a remedy, the panel affirmed a more flexible approach to forcing Texas to have adequate staff: It said CPS and the commission could be ordered to perform workload studies and develop internal caseload guidelines that must “inform hiring goals” for the three types of workers.

In February, Paxton filed a brief objecting. He noted that Jack’s proposed injunction would give the state agencies only 60 days to devise the workload studies. Paxton also protested that neither Jack nor her two court-appointed monitors in the case should be able to oversee the process of reviewing workloads, and setting case distribution policies.

On Monday, the panel upheld Jack’s plan to have herself and the monitors review the workload studies. Clement said Jack “should generously consider” granting an extension, if Texas needs more than 60 days.

The panel also said the monitors and their staff members will have access to long-term foster children’s computerized records, as long as the staff members are trained about handling sensitive child-maltreatment records and sign confidentiality agreements. It also upheld Jack’s plans for keeping the case open, potentially for years.

Clement rebuked Jack, though, for seeking an end-run on what the panel had said in October -- that the trial judge couldn’t bar use of about 100 CPS employees called “ I See You” workers. Recently renamed “local permanency specialists,” the positions were created to stand in for the child’s conservatorship worker if -- as often happens -- the child is placed a long distance from his or her home community.

There are problems with the workers, Clement acknowledged. But the workload-driven push for more conservatorship workers is the correct cure, she said.

Computer system

Perhaps the state’s biggest victory Monday was on the computer system -- a requirement it said was unwarranted, unprecedented and could cost Texas taxpayers tens of millions of dollars.

Clement wrote that the panel last fall issued an “erroneous” requirement for an integrated computer system that would make instantaneously available to caseworkers and caregivers all of a foster child’s medical, mental health, educational records and history of being a victim or perpetrator of child-on-child sexual abuse.

Clement said the October ruling by her, Higginbotham and Judge Jerry E. Smith of Houston on computerized records “is inconsistent” with the “broader remedial principles” of their trimming of Jack’s liability findings and remedial orders for Texas’ long-term foster care system.

An integrated computer system would be helpful, she wrote, though “at most, two other states use” one. But Texas doesn’t have to achieve that “best practice” or other best practices in child welfare, Clement wrote. It only has to meet a lesser standard that ensures children no longer are subjected to unsafe conditions and risk of harm, she said.

“The goal is a constitutionally effective foster-care program, not a specific kind of computer system used to help achieve that goal,” she wrote.

Higginbotham dissented on the rollback of the computer-improvements requirement, calling it “misguided.” In October, he objected to many of Clement and Smith’s softening of Jack’s edicts.

The integrated computer system would have been “a forward-looking process that would empower enfeebled caseworkers and bring needed administrative transparency, serving a role not unlike medical records in a hospital -- a necessity,” he wrote.

Higginbotham renewed his objections to the panel’s decision last fall to removing caseload caps for CPS “conservatorship” caseworkers and the regulatory personnel who check on foster-care providers’ compliance with state standards and look into outcries by the children that they’ve been abused or neglected.

On Monday, Higginbotham protested that “the majority completes its walk away from the district court’s interlaced remedial scheme, taking away provisions essential to its success.”

Revving up his attack on his home state’s child welfare system, he recalled that Jack, after a two-week bench trial in the case in 2014, found that the department’s case files on the children in “permanent managing custody” of the state, or PMC, were “incredibly disorganized.”

“Simply put,” Higginbotham wrote, “these removed injunctive provisions would strike at [the department]’s administrative chaos and inefficiency, problems at the heart of the agency’s failure to protect the thousands of PMC children entrusted to its custody.”

Potential appeal

The panel kept in place a stay on Jack’s remedy order. In a February filing, Paxton suggested his office would appeal to the full 5th Circuit, no matter what the three-judge panel found.

Crimmins, spokesman for the state protective-services department, said it would have no comment.

Plaintiffs' lawyer Paul Yetter of Houston declined to say if lawyers for the children would appeal.

"It's time for the state to stop fighting these children and start fixing their system," he said.