87th LegislatureJudicialState HouseFoster Care Providers, State Agencies Say Heightened Regulation Leaving Children Unplaced

"We started closing down places and we didn't have a plan B for where these kids go," state Rep. James Frank said.
October 14, 2021
“If you put a couple of 17-year-olds in a home, that’s one thing. You put 20 of them in an office, that’s Lord of the Flies.”

That’s how state Rep. James Frank (R-Wichita Falls) framed the recent spike in children without placement (CWOP), youths between homes in the foster care system. Newly released from psychiatric care, a previous home, or their own families, these children sleep in last-minute accommodations like hotels or even caseworkers’ offices until the Texas Department of Family and Protective Services (DFPS) can find them a stabler bed.

Over the past year, dramatically more children have been entering this limbo. One DFPS worker said she banked 96 overtime hours working CWOP in July 2021 alone after working zero overtime hours in the same month last year and the year before. Additionally, the average time that children spend in CWOP has lengthened.

At a committee meeting in the state capitol on Wednesday, lawmakers, agencies, and providers worked to find out why.

State Agencies Testify

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The DFPS works with foster children while another agency, the Texas Health and Human Services Commission (HHSC), oversees the centers that care for them. Both agencies began their testimonies before the Human Services Committee of the Texas House by partly blaming COVID-19 for the rise of unplaced children.

“The providers in COVID were struggling to find staff that were willing to come to work,” said Jean Shaw, assistant commissioner for Child Care Licensing at HHSC.

“I think from the provider community that that has been a true struggle for them.”

Frank was not convinced that COVID-19 is the problem.

As part of a long-running lawsuit against the Texas foster care system, a judge ordered heightened monitoring at centers with records of abuse or neglect. In addition to staffing problems caused by the pandemic, the state has claimed that this new scrutiny strangled the system, forcing centers offline and shrinking capacity.

At the Wednesday hearing, witnesses verified that a significant chunk of foster care providers have left the system since heightened monitoring began, taking about 1,300 beds with them. Some left voluntarily rather than subject themselves to new monitoring. Others were shuttered by the HHSC.

“The number of kids that folks are working with is staying the same, but during that time starting back in September, we started closing down places for them to go. Right, wrong, or indifferent… we closed some down and some turned their keys in to us,” Frank said.

“The lack of staffing had nothing to do with how we got here… We started closing down places and we didn’t have a plan B for where these kids go.”

The question remained: how many providers left to hide real abuse, and how many left to avoid onerous regulation? According to the DFPS, “some combination” led to the state’s dwindling supply of beds.

“I do believe that there were some that needed to close due to safety issues,” said Deneen Dryden, associate commissioner for Child Protective Services in DFPS.

“I know that some were closed due to decisions due to HHSC, and some we pulled our kids out of.”

HHSC confirmed that increased risk for children at some centers forced the agency to close them down, further reducing the state’s bed count and sometimes leaving children to spend the night in DFPS offices. However, most of the departed providers left on their own.

“There have been times, yes, when we have made that very difficult decision that causes children to be removed from placements without a plan,” Shaw said.

“A majority of beds that have come offline have been people that self-surrendered their license.”

Foster Care Providers

After hearing from the agencies, the committee heard from foster care providers. Scott Lundy, CEO of Arrow Child and Family Ministries, said more intense monitoring and confusing regulations may indeed have squeezed capacity.

“The regulatory environment and the scrutiny of that has seen a pretty significant increase from a foster standpoint,” Lundy said, further citing “multiple cooks in the kitchen” in reference to the DFPS and HHSC.

“From a provider’s perspective, it’s really frustrating and hard to see the target move.”

Lundy further said foster families have shouldered ever more liability for citations and Reason to Believe (RTB) findings — disciplinary reports that can end careers and shut down facilities when enough accumulate. One family got a citation for not having a lid on their trash can; another was cited for the tag on their fire extinguisher being two weeks expired.

The risk increases with especially troubled children, making foster families and providers more reluctant to take them and leaving more of them unplaced.

Katy Olse of the Texas Alliance of Child and Family Services said the increased governmental attention disrupts the lives of children as well as the operation of the care center.

“The number of investigations, citations, and the overall amount of monitoring have increased. For foster care operators, that means more manpower, attention to paperwork, training, answering questions, and overall ensuring compliance with an array of requirements. For kids, that means a lot more people with badges and titles coming in and out of their homes,” Olse said.

“A citation, a RTB finding, any strike matters, and it matters a lot… It can mean, if there is a violation or strike, it could mean a child has to be moved, someone could get fired, or an organization could lose their contract or even their license… What’s murkier for us all is the balance between absolute safety and the expectation that foster families, children, and youth need normal childhood experiences.”

As Frank put it, “We got one person watching the kid, and we got six people around them with clipboards.”

While they did not appear at the committee hearing, the monitors appointed by the court were loath to blame the system’s failures on stringent new rules.

“If providers that are under Heightened Monitoring are making different decisions since being placed under enhanced oversight about which children, and how many children, they can safely serve, these decisions are likely overdue,” the monitors wrote in a scathing report.

“In a constitutionally infirm system in which child abuse, neglect, and exploitation went underreported, recurrent minimum standards violations were tolerated, investigations of abuse, neglect, or exploitation were frequently deficient, ‘[c]hildren were left in homes and facilities where DFPS knew there was a serious possibility they were being abused,’ and ‘licensees [did] not perceive that they [would] be held accountable for their malfeasance,’ it is not difficult to imagine that operations that accepted the hardest-to-place children might have been among those historically held least accountable, allowed to continue to operate year-after-year despite unreasonable risk of serious harm to children.”

The Role of COVID-19

COVID-19 did throw unexpected monkey wrenches in the Texas foster care machine. The monitors appointed by the court report one story of a child taken from her foster family for being left at home alone. The parents said they couldn’t always stay at home with the child all day while she was doing virtual school, and in-person school was not an option.

Furthermore, COVID-19 made some families reluctant to enter foster care. When Rep. Gina Hinojosa (D-Austin) asked Dryden to define the “perfect storm” of elements that led to shrunken capacity, Dryden speculated that the pandemic burdened families with needs that left them unwilling to take on foster children.

“I think it did begin in the pandemic when we saw everyone have to pivot very quickly, and we have these youth that are in placements that families were trying to care for their own families, maybe they had to take care of their elderly family, and they were less likely to take on a kid in this time,” Dryden said.

“Now, we have bottlenecks all over the system. So I do think that’s one piece.”

The pandemic’s most direct effect on CWOP may have just been simple delay, creating a spike in reported abuse and neglect on paper. Dryden reports a backlog in investigations within the last year in part due to staffing issues. When workers caught up on older reports, the data appeared as a wave of citations and RTBs that harmed families and providers.

“If you work through a year’s worth of RTBs in three months, it’s gonna look like all these kids are getting abused,” Frank said. “Did we want to close those because of risk, or did we work through a year of RTBs too quickly?”

“The number of RTB findings were, yes, compressed,” Shaw said, but added, “There are operations that were getting 10 RTB findings in the year prior to that.”

Potential Solutions

Kimberly Sanders, who has been a Child Protective caseworker for years, described the “chaos” of some nights on CWOP duty.

“Children are refusing placement, children are running away from care, fighting each other, attacking staff, using drugs, and being preyed upon by traffickers,” Sanders said.

“Physical attacks on staff are common… Children that are in CWOP are attacking other children.”

Her stories echo dozens of other accounts collected by the court monitors in their report, including one 16-year-old girl that was hospitalized after DFPS workers found her with a bag of rat poison during her fifth spell in CWOP this year.

Sanders suggested creating a workforce whose only job is to work with unplaced children. Since some caseworkers find themselves on CWOP duty with no more training than a simple video, she also recommended more training on how to deal with situations that might involve medical needs or physical confrontations.

“When an employee tells you, ‘Give me more training,’ that’s more work. That really speaks to the desire you have,” Hinojosa told Sanders.

Sanders also urged the legislature to create safe, licensed facilities solely for CWOP youth instead of having them spend the night in offices and hotels.

Since the state currently depends on private contracts for capacity, it cannot generate new homes or beds on its own. Wayne Carson, CEO of ACH Child and Family Services, said providers are also working on a “recruitment blitz” for foster parents to help solve that problem and grow capacity.

On the government side, the DFPS said it would work on reducing the number of children that enter CWOP.

“We’re also focusing on the long-term strategies… We want to reduce the front door, because if we are bringing in kids that do not need to come… we can do that,” Dryden said.

“We’re also requiring a regional director to approve any removal of a kid 12 and up… When we look at the kids in CWOP, they were removed from their families age 12 or above.”

Fortunately, Dryden added, “we’re turning the curve” already in terms of CWOP volume. While the number of youth in CWOP is still extraordinarily high compared to previous years, it peaked in July and has fallen since then.

On Wednesday, the DFPS counted 127 total children without placement.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.