August 28, 2013
Children in permanent foster care in Texas can move forward with their lawsuit against the Department of Family and Protective Services (DFPS), claiming that the state has violated their constitutional rights and subjected them to harm, a federal court has ruled.
In a 107-page decision () handed down this week, Senior U.S. District Judge Janis Graham Jack, in the Southern District of Texas, Corpus Christi Division, ruled that the lawsuit on behalf of 12,000 children in permanent foster care can proceed as a class action.
“This decision has life-changing significance for the vulnerable children in Texas foster care, and for the law,” said Marcia Robinson Lowry, executive director of Children’s Rights, a national non-profit advocacy organization and one of plaintiffs’ attorneys. “The judge has laid out what is necessary to proceed on behalf of all children in similar circumstances when their constitutional rights are being violated by allegedly harmful state policies and practices. She has found that the evidence presented concerning problems in Texas foster care is sufficient for us to proceed as a class action.”
Lawyers for Children’s Rights, a non-profit national advocacy organization, and Texas co-counsel Haynes and BooneLLP and Yetter Coleman LLP, have asserted that Texas overburdens its caseworkers with excessive caseloads and lacks enough placement options to ensure foster children live in appropriate settings. The lawsuit also contends that the state fails to monitor children’s safety, putting them in understaffed group homes and unlicensed homes of relatives who are not given the same training or support as foster parents or inappropriately placing them in congregate care when they could be properly served in a more family-like setting. The lawsuit charges that these deficiencies lead to damaging consequences, including high rates of maltreatment, frequent and repeated moves between placements, and unnecessary separation of children from their siblings and communities.
“We’re gratified, on behalf of all Texas children, for the Court’s careful and thorough ruling,” said co-counsel Paul Yetter.
In her lengthy ruling, Judge Graham Jack cites the evidence that was presented to her to support these claims in a three-day evidentiary hearing in Corpus Christi in January, from expert witnesses, the adult representatives for the children, and state documents. She details the circumstances of children who are plaintiffs in the lawsuit, referring, as examples, to a six-year-old child who was placed in an institution where “he lived in a cinder block room with only a bed and some clothes,” and asked an adult visiting him to “please hug me because they can’t touch me here,” and to a eight-year-old boy sexually abused by older boys in a foster group home which plaintiffs assert was inadequately supervised.
The court’s opinion finding that the case could proceed as a class action stated “There is ample evidence on the record presently before the Court …that caseworkers are overburdened, that this might pose risks to the children in [Permanent Managing Conservatorship] and that DFPS and other State officials had actual or constructive knowledge of these risks and have not acted to cap or otherwise limit caseloads. … The record contains numerous reports from DFPS and other State agencies indicating that caseworks cannot handle the volume of work they are responsible for.”
The latest decision on the 2-year old case follows an earlier ruling allowing the case to proceed as a class action in 2011, which was vacated and remanded by the Fifth Circuit Court of Appeals in light of the Supreme Court’s case,Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). In response to that ruling, plaintiffs streamlined and focused their claims and the court scheduled the evidentiary hearing which was held in January. The decision issued by the court on Aug. 27 found that the plaintiffs had complied with the standard set by the Fifth Circuit decision on most of their claims and that the case could proceed on behalf of a general class and three sub-classes, leaving the door open to the certifying of a fourth sub-class.
The General Class includes all children now, or in the future, in permanent foster care in Texas. The Licensed Foster Care Subclass includes all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship, or family, placements. The Foster Group Home Subclass includes all members of the General Class who are now or will be in a foster group home. And the Basic Care GRO subclass includes all members of the General Class who are now or will be in a GRO and who are or will be receiving solely non-emergency, basic child care services.
For more information about Children’s Rights’ ongoing campaign to reform the Texas child welfare system, please visit www.childrensrights.org/reform-campaigns/legal-cases/texas/