JudicialLawsuit Exposes Dysfunction in Foster Care System as State Scrambles to Place Troubled Children

A decade-old lawsuit has brought the state foster care system to a crossroads between high standards and availability.
September 16, 2021
Named only “AO” in court records, one young girl entered the Texas foster care system in 2016 already burdened with what the Texas Department of Family and Protective Services (DFPS) calls unique “needs.” Both a victim and alleged perpetrator of sexual abuse by the age of eleven, AO has stumbled through 10 caseworkers, 11 psychiatric hospitalizations, two stints in juvenile detention, and several suicide attempts by methods as varied as hanging herself with her sweatpants or swigging nail polish remover.

Since foster care centers were reluctant to take her, AO spent her fifth spell at a DFPS office earlier this year, a stay checkered with runaway attempts that ended with hospitalization after law enforcement found her with a bag of rat poison in her pocket. She is 16 years old.

AO and other children for whom the DFPS cannot find a stable residence are known as children without placement (CWOP). Often, children in CWOP have to spend the night in a government office until the agency can place them.

According to a report the agency released today, dramatically more children are spending dramatically more time in CWOP since January 2020.

While DFPS Commissioner Jaime Masters partially blamed staffing shortages caused by the pandemic for the rise of youth in CWOP, she also framed it as the result of new foster care regulation brought on by a lawsuit against the state that has remained ongoing since 2011. The court orders and legislation that the case has inspired have revealed unsafe conditions in Texas foster care but also squeezed the system, leading the state to abandon capacity for safety.

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In other words, the DFPS claims new oversight is making foster operations think twice before accepting particularly troubled youth, leading to more children waiting longer in limbo for placement. The court-appointed overseers disagree and say the solution is more scrutiny, not less.

Judge Janis Jack, who presides over the case in the U.S. District Court for the Southern District of Texas, ordered the DFPS last year to put a system of heightened monitoring in place. Under the system, foster care operations that have shown high rates of abuse or neglect must accept more stringent oversight.

The DFPS claims this system backfired. Since private contractors manage 90 percent of the state’s foster homes, all foster homes for higher needs children, and all congregate care, the threat of heightened monitoring discouraged the providers from taking on risky youth and even led to some of them quitting the foster care system.

“While we always need more placements, we have unused capacity because of apprehension over accepting children with a history of physical or sexual aggression and/or significant mental health issues,” Masters wrote in a letter to state Sen. Lois Kolkorst (R-Brenham) and Rep. James Frank (R-Wichita Falls), who authored the bill in the 87th Texas legislature that now forbids overnight CWOP stays in caseworkers’ offices.

“Providers fear licensing or abuse/neglect findings that may lead to heightened monitoring.”

Though the bill prohibiting overnight office stays went into law in June, the DFPS has continued housing children in offices as the number of CWOP youth increased dramatically over the past year. Under 25 children slept in CWOP settings in January 2020. That number leaped to over 150 children by June 2021.

According to Masters, new regulation like heightened monitoring has left some providers reluctant to take on certain children. Providers say some youth’s behaviors “sometimes necessitate physical interventions” like restraint, which can lead to career-ending discipline for staff.

Furthermore, Masters pointed out that several providers have ducked out of the foster care system entirely rather than accept heightened monitoring. Faced with potential license revocation or denial, five foster operations voluntarily closed in the past year.

Court-appointed monitors remain unconvinced by the agency’s claims. In a hundred-page update they filed two days ago, the monitors detailed neglectful or unsafe conditions in CWOP settings and expressed skepticism about whether heightened monitoring was actually a detriment to foster capacity.

“Texas’s response to its closure of unsafe, regulated placements for PMC children has been an ever-growing dependence on unsafe, unregulated placements for PMC children, many of which now pose an unreasonable risk of serious harm to children,” the monitors wrote.

“The State’s own analysis refutes the conclusion that providers not on Heightened Monitoring — the majority — have responded to the existence of enhanced oversight by refusing placements that they once accepted. 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 added that children in CWOP settings, usually government offices or hotels, ran amok and faced serious harm under staff untrained to care for them.

“There was disturbing evidence of child-on-child sexual abuse in these CWOP settings, as well as evidence that children connected from CPS offices with sex traffickers and buyers and ran away from CWOP Settings,” the monitors wrote.

In their update, the monitors include six stories of children housed in CWOP settings like “AO.”

One child, a teenage girl named “AA,” was taken from her last foster home when DFPS found that the parents routinely left children alone in the house “because the children were unable to go to school during COVID, resulting in their being left at home alone to attend school virtually while the foster parents worked.” Two of her foster siblings ran away one night while the parents were gone and engaged in drug use and sexual intercourse with an adult man. AA, who is autistic, diabetic, bipolar, and severely manic, lacked therapy services entirely during CWOP and got very little of her prescribed medication. She has been through 8 foster homes, 4 residential treatment centers, 5 psychiatric hospitalizations, and 7 caseworkers.

According to the monitors, the most common issue reported in Serious Incident Reports in CWOP settings has been mental health episodes, followed by physical aggression towards staff. From January to June 2021, the monitors also count 3 incidents of consensual child-on-child sexual activity, 16 fights, and 22 suicide attempts or moments of self-harm.

Nonetheless, the overwhelming majority of youth reported feeling safe in their CWOP settings. 89 percent of children without placement told monitors that they always feel safe where they were housed in CWOP. In fact, fights and other incidents were more common at residential treatment care centers than in CWOP settings.

Despite these survey results, DFPS staff report feeling unsafe and overworked while watching over more and more children in CWOP.

“I know you know this, but we are dying. I have staff at their breaking point, both mentally and physically. This is completely draining everyone as I have 17 kids who all have EXTREME needs that we are not able, equipped, or trained to manage/care for,” one DFPS worker wrote.

“I am terrified that our youth are going to be seriously injured or worse. We are putting everything humanly possible in place we can but these kids need serious treatment and stability.”


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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.