National Advocates and Texas Attorneys File Federal Class Action Seeking Reform of Texas Child Welfare System

Citing longstanding and pervasive issues that have caused thousands of children in Texas foster care to spend their childhoods in poorly supervised institutions and repeatedly move from one far-flung place to another, today the national advocacy group Children’s Rights has joined the prominent Texas law firms Haynes and Boone LLP, Yetter Coleman, and Canales & Simonson in filing a class action in federal court seeking widespread reform on behalf of approximately 12,000 abused and neglected children in long-term foster care statewide.

The (PDF), known as M.D. v. Perry, charges Texas’s Department of Family and Protective Services (DFPS) with violating the constitutional rights of children who have been in foster care for at least a year by routinely failing to either return them safely to their families or find them safe, appropriate, and permanent new families — and therefore failing to meet its legal obligation to ensure the safety, permanency, and well-being of all children in its custody.

The current structure of Texas’s child welfare system gives caseworkers approximately one year, or a maximum of 18 months, to either successfully reunify children with their birth families or find them adoptive homes. If DFPS fails to find a permanent home for a child in foster care within that time, that child is then officially moved into the state’s “permanent managing conservatorship.” After entering this permanent foster care status, many children have little hope for stable, permanent families and instead are shuffled between a variety of foster and institutional placements that are poorly supervised by the state.

“Once children cross the line into permanent foster care, the state essentially gives up on their prospects for ever leaving state custody with permanent families of their own,” said Marcia Robinson Lowry, executive director of Children’s Rights. “Instead, thousands of Texas children have no hope for a decent childhood and are subjected to unconscionable damage while under the state’s protection. These children need the protection of the federal court.”

The state is still legally obligated to provide children in permanent foster care with appropriate care and services while in foster care and must continue to work to find permanent families for these children. Today’s complaint shows that DFPS does not fulfill this obligation to the thousands of children in permanent foster care.

“This class action lawsuit is the collective cry of Texas’s forgotten children, now demanding to be remembered,” says the complaint.

The lawsuit names 9 children as plaintiffs to represent the class. They range in age from nine to 16 and share a history of suffering in DFPS’s long-term foster care. They include:

• Fourteen-year-old M.D., who first entered foster care at eight years old and was initially placed with relatives, but after being sexually abused by a cousin returned to state custody two years later. In the last four years, she has bounced around to at least seven different foster placements, most of which have been institutions, where her mental health has severely deteriorated. Currently, she is living in a short-term therapeutic placement where she has no visitors and lacks privileges even as minor as toiletries, while she waits to move to yet another treatment center.

• Nine-year-old J.S., who has been in state custody for the past four years. Despite his young age, he has been placed primarily in residential treatment centers and other group settings. By the time J.S. was just eight years old, he had been prescribed up to four different psychotropic medications. The state continues to fail to find him a permanent, loving home, and J.S. now lives at a residential treatment center 300 miles from his hometown.

• S.A., a 14-year-old girl who has been in foster care since she was five years old and has moved through at least 24 foster care placements — spending a cumulative six years living in institutions. S.A. has had 12 different caseworkers over her stay in custody and the state has completely failed to make any effort to find her a permanent family. She is currently living in a treatment center.

• D.P., a 16-year-old girl who was only six when she first came into DFPS custody. She was separated from her siblings and immediately placed in an emergency shelter. In less than four years, she changed foster placements 28 times. After running away from the unlicensed home of a relative where she was being sexually abused, DFPS sent her to a detention center instead of getting her help to recover from that abuse. Since that time, D.P. has bounced between institutions and shelters, and now is prescribed a powerful cocktail of psychotropic medications to control her behavior. At 16, she is very likely to age out of care without any hope of permanent adult connections or preparation for living on her own.

“As Texans, we pride ourselves on our ability to take care of our own, especially our children. It is truly shameful how this state has neglected this vulnerable group of kids for as long as it has and operated a system with so little accountability,” said Barry F. McNeil, a Dallas-based partner with Haynes and Boone and co-counsel on the lawsuit. “We believe it is our responsibility to stand up and give these voiceless children an opportunity to be heard and protected.”

Pointing to evidence that DFPS and state officials have been aware of serious problems throughout the state-run child welfare system for many years without taking sufficient action to solve them, the child plaintiffs ask the U.S.District Court for the Southern District of Texas to enjoin the state from further violating their constitutional rights and order relief via broad reforms. Among the harms to children in Texas’s permanent foster care detailed in the complaint:

• Children are subjected to frequent moves between many different foster placements. Many children in long-term foster care are forced to move from one home or institution to another — with little planning or regard for the emotional harm these constant disruptions cause. As of 2009, children who have been in permanent foster care for more than three years had experienced an average of 11 placements.

• Youth are routinely placed in restrictive institutional settings and group homes, instead of with families.As of March 2010, approximately 75 percent of children living in residential treatment centers were in permanent foster care, even though those children made up less than half of all the children in Texas state custody. Additionally, Texas children are often placed in “foster group homes” with up to 12 children — essentially sending children to live in places that more closely resemble poorly supervised dormitories.

• Children in long-term foster care languish in care for years without permanent families. If DFPS doesn’t find a permanent home for a child quickly, the state seemingly gives up trying — leaving a huge group of children essentially waiting to age out of the foster care system, without preparation for adulthood. In 2009, more than one-quarter of all children in Texas’s long-term foster care had been in state custody for more than three years. As of May 2010, roughly 500 children had been in foster care for more than 10 years. Furthermore, nearly 3,400 children in permanent foster care weren’t even legally free for adoption in August 2010 — leaving those children essentially in limbo, unable to return home and unable to be adopted.

• Youth in permanent foster care are at a higher risk of abuse and neglect while in state custody than other children. According to the state’s own records, serious incidents of abuse and neglect have been documented in poorly supervised group homes and institutions — where children in long-term foster care are highly likely to be placed. The complaint cites shocking accounts of treatment center staff intentionally choking children, hitting youth with objects, sexually abusing children, and improperly restraining residents.

• Children in long-term foster care are often denied access to necessary mental health services. According to recent federal reviews, Texas failed to address the mental health needs of nearly one in three of the children whose cases were reviewed. Those same reviews noted a serious lack of available services for children in foster care — especially for families and youth living in remote and rural areas of the state.

• DFPS routinely separates children from their brothers and sisters in foster care. DFPS reported in February 2011 that nearly one in five sibling groups in foster care were not placed together. Further, according to a federal audit, the state makes little effort to ensure that brothers and sisters have an opportunity to visit with each other and maintain a relationship if separated.

“DFPS has a legal obligation to protect the safety and well-being of our state’s children, and that is exactly what this campaign for reform sets out to do,” said Paul Yetter, managing partner at Yetter Coleman in Houston. “Our firm is proud to be a part of this effort on behalf of Texas’s forgotten children.”

The children’s complaint links these problems to DFPS’s long-standing deficiencies in its management and infrastructure:

• Child welfare workers — often inexperienced — are overburdened by excessive caseloads. A recent report noted that Texas caseworkers routinely handle more than 30 cases each — often cases involving multiple children — despite the Child Welfare League of America’s caseload standard of 12-15 children per worker. Additionally, about 30 percent of new workers leave within their first year, resulting in an inexperienced workforce. In 2010, nearly a third of child welfare staff had less than one year of experience.

• Texas suffers from a severe lack of available and appropriate foster homes, resulting in a dependence on restrictive and far-flung placements. Because DFPS has failed to take necessary steps to secure an adequate number of foster homes, children as young as seven years old are subjected to living in emergency shelters and institutions. Additionally, nearly 26 percent of all children in permanent foster care are forced to live not only outside of their home counties, but outside even larger DFPS regions — often hundreds of miles away from their families and communities.

• DFPS fails to adequately oversee and supervise privately contracted providers. Nearly 85 percent of children in long-term foster care not living with relatives are placed in privately contracted foster placements that are poorly supervised by DFPS. DFPS’s licensing division does not keep adequate records of foster care providers who have been previously determined as unsatisfactory or even abusive — meaning homes that have been shut down by one private agency can simply go to another agency and continue serving children in foster care.

Children’s Rights is joined in representing the plaintiffs in M.D. v. Perry by Dallas-based firm Haynes and Boone, Houston-based firm Yetter Coleman, and the firm of Canales & Simonson in Corpus Christi.

For more information about Children’s Rights campaign to reform the Texas child welfare system, and the full text of today’s complaint, please visit www.childrensrights.org.

Related Media

Texas harms foster children with inattention, shoddy system, lawsuit says (Dallas Morning News, March 29, 2011)

Suit filed for Texas’ ‘forgotten children’ (Houston Chronicle, March 29, 2011)

Lawsuit: Texas Failing Foster Children (Texas Tribune, March 29, 2011)