AUSTIN — Major improvements to a foster care system that a federal judge has said fails Texas kids aren't likely to happen anytime soon, according to child advocates.

The state is fighting the judge's orders, they would cost tens of millions more per year and the Legislature is focused on school finance and property tax issues.

The class-action lawsuit, brought on behalf of about 12,000 children who are in the state's "permanent managing custody," was filed eight years ago.

Far from cutting its losses and savoring recent victories, including a significant trim to the judge's proposed remedies, the state recently signaled it plans yet another appeal. Even if it loses that, Texas could go to the Supreme Court.

The legal stalemate frustrates some child welfare activists, who admit their hopes soared after the state's GOP leaders in December 2016 granted $12,000 raises to front-line CPS workers and let the agency hire up to 829 new employees.

But while initial investigations into tips about possible child maltreatment are conducted far more quickly than three years ago — when The Dallas Morning News disclosed that tens of thousands of children weren't being checked on within legally prescribed time limits — the state still falters in shielding youngsters from abuse and neglect, advocates argue.

Many complain that a backward-looking focus on the lawsuit obscures new funding and regulatory challenges.

The state Department of Family and Protective Services and its contractors need to be preparing rapidly to comply with a new federal law, said Kate Murphy, senior child welfare policy associate at the advocacy group Texans Care for Children.

Beginning in October 2021, the Family First Prevention Services Act, which Texas U.S. Rep. Kevin Brady pushed and President Donald Trump signed last February, will end federal reimbursement for much — if not virtually all — of the group foster care that Texas currently purchases, such as in residential treatment centers.

"It's disappointing to see the progress not kept up in the same way that we'd like," she said. "There's still really significant room for improvement."

Mike Foster of San Marcos, who began working in child welfare in 1971, said when the lawsuit was filed by New York-based Children's Rights in 2011, idealistic foster-care providers in Texas dreamed it could be a long-awaited catalyst for improvement.

"You just keep waiting and waiting and hoping and praying for transformational change, and it's so slow in coming," said Foster, now a consultant and a trainer. "It was a good thing to get line staff the raises. But I haven't seen a lot change since this suit was filed."

Boys from the emergency shelter walk through the courtyard at Jonathan's Place. (2017 File Photo / Rose Baca)

Three years ago, U.S. District Judge Janis Graham Jack of Corpus Christi branded Texas' system as "broken," saying kids "almost uniformly leave state custody more damaged than when they entered."

The Legislature has been working on improvements to the heavily privatized system. The plan is to have a private super vendor who would take the lead in each region.

But because the state for decades used "open-source procurement," it's totally at the mercy of a crazy quilt of providers. That has led to faraway placements for many foster children, who were yanked from their home communities.

Placement order overturned

Jack sought to correct that with detailed plans for an improved array of placements, by type and location. But a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans told her to leave that alone.

Prospects for rapid, big improvements to the system are uncertain. Lawmakers' "foster care redesign" experiment, more recently dubbed "community-based care," is proving quite costly — and won't be coming to Dallas anytime soon.

Also, it's unclear when the state, child advocates and foster-care providers will see a final result in the lawsuit.

The 5th Circuit panel has trimmed other orders by Jack, an appointee of former President Bill Clinton. But GOP state Attorney General Ken Paxton is still seeking more, by asking for a hearing of the full appellate court and possibly taking it the Supreme Court.

A Paxton spokesman did not respond to questions about whether Texas, if it gets no satisfaction from the New Orleans court, would appeal to the Supreme Court — and if realistically, there won't be time for lawmakers in Austin to respond before their session ends May 27.

After oral arguments recently, Paxton said Jack "has again overreached," despite significant trims to her injunction.

"The improper provisions ordered by an unelected federal judge are not only impractical, they are actually harmful to foster care caseworkers and the children they care for every day," Paxton said in a written statement.

Gov. Greg Abbott, who doggedly fought the lawsuit as attorney general and is still a defendant, and Paxton have said the state is making improvements and should be left to run child protection efforts as it sees fit.

But in a partial dissent last fall, Appeals Court Judge Patrick Higginbotham of Austin, formerly of Dallas, said his panel colleagues were misguided in striking "key provisions" in Jack's injunction, such as caseload caps, a better array of placements, health care improvements and supports for kids who "age out" when they turn 18.

"It raises the flag of federalism but flies it upside down," Higginbotham, appointed to the 5th Circuit by former President Ronald Reagan, said of Louisiana Judge Edith Brown Clement's majority opinion.

Texas' resistance to a deal

As The News reported in 2016, experts on child welfare litigation say that Texas has more fiercely fought the foster-care class action case than any of the more than 30 other states and counties that have faced similar suits since the early 1980s. Most states sued, including red ones such as South Carolina, have settled with plaintiffs and made compromises, some child advocates have noted.

Through January, the state has spent $9.7 million on the suit, the newspaper found. That's up from $7.2 million Texas had spent as of November 2016. The $9.7 million total includes $1.7 million the protective-services department has been forced to pay Jack's special masters and mediator in the suit.

In this year's legislative session, the department asked for $22.5 million more of general-purpose state revenue to cover expected costs of the lawsuit in 2020-21. The request included $10 million for lawyers, fees and related expenses and $12.5 million for about 80 new hires who would do things such as speed up how quickly foster kids who've made an outcry about abuse are seen by investigators.

So far, neither the House nor the Senate appears eager to provide the money. The House's budget-writing committee spurned the request, though it put the $22.5 million on a "wish list" in the two-year budget. Department spokesman Patrick Crimmins said that "to our knowledge" Senate budget writers also haven't funded the request.

At the March 14 oral arguments, Assistant Solicitor General Joseph "Jody" Hughes, the state's lawyer, decried Jack's order that the state build a new "integrated computer system." It would provide easy access for caseworkers and caregivers to a foster child's medical, mental health and educational records and history of being a victim or perpetrator of child-on-child sexual abuse. The panel agreed with Jack it's needed.

"Is the game worth the candle?" said Hughes, who said CPS workers “praise” and the federal Children’s Bureau “really likes” Texas’ current computer system. "I mean, are we talking about $10 million, $50 million? Who knows?"

He said a computer system such as Jack has described was on Jack's special masters' "wish list of things they'd like to see." That may be a "best practice," but is not a constitutionally required fix, Hughes argued.

Plaintiffs' lawyer Paul Yetter of Houston, though, noted that Clement's majority opinion said "reliable information" is crucial for the system to meet constitutional muster.

"How could the state possibly today suggest to this court that they can make safe placement decisions if they don't have complete mental health information about that child," he told the panel.

In an interview last week, Yetter, a commercial litigator who has served for free in the case, said he believes the three judges "want to rule promptly, but it's hard to know whether it'll be before May 27," the Legislature's final day of regular session.

Some find the legal limbo — and the political stalemate — disheartening.

"We're not seeing quite as much movement as I would like to see," said Murphy, the child advocate.

Foster, the semi-retired child welfare executive, said he regrets his own inflated expectations.

"In the beginning, we'd hoped there was some chance there'd be a settlement and an agreed order," he said. "I was very naïve to think that."