AUSTIN — A legal skirmish before a federal judge on Wednesday underscored how high the stakes are in a long-running Texas foster care lawsuit as a showdown in Dallas looms over whether Gov. Greg Abbott and two state agencies should be held in contempt of court.
In recent weeks, lawyers for about 9,000 children in long-term foster care have asked the judge to not only consider imposing large monetary penalties against Texas but place parts of the state’s program in receivership.
In a receivership, commonly used in bankruptcies, a judge’s appointee directly runs an organization.
U.S. District Judge Janis Graham Jack previously had ruled that children too often linger for years in unconstitutionally unsafe foster care, suffering assault, rape and over-medication. Kids regularly emerge from the system in worse shape than when they entered, she found.
Through more than four years of intensive court supervision, the state has improved aspects of foster care but big problems persist, Jack has said.
The request that Texas be held in contempt comes six months after Abbott’s high-priced team of Gibson Dunn & Crutcher lawyers challenged Jack and her monitors’ actions far more aggressively than the state attorney general’s office lawyers who previously handled Texas’ legal defense.
At a Dec. 4 hearing in Dallas, Jack will consider both fines and a partial receivership for the Texas program for not obeying her remedial orders. They include having low enough caseloads for workers to know their charges, preventing misuse of mental health drugs, informing kids of how to make an outcry if harmed and flagging for caregivers a child’s sexual abuse history.
On Wednesday, Jack bristled as the heads of the Texas Department of Family and Protective Services and the Health and Human Services Commission said they couldn’t say for sure when they might produce a long-requested list showing where all the children in the state’s “permanent managing conservatorship” might be placed on any particular day.
Family courts consider children to be in permanent managing conservatorship about a year or 18 months into a child-removal case, when reunification of the birth family has not been possible and no one has stepped forward to adopt.
At the remote hearing over document production for the Dec. 4 hearing, court-appointed monitor Kevin Ryan described how on site visits, members of the monitors’ team have shown up with a list of children provided by the state, only to find a different cast of youngsters at the foster home or facility.
Protective services commissioner Stephanie Muth cited “nuances” of difficulty.
Muth explained that producing an accurate list is difficult because “of the information being in two separate systems,” one maintained by her agency’s database and the other at health and social services executive commissioner Cecile Young’s commission.
“Do you not find it incredible that you cannot on a given date make a list of all the PMC children and who their caregivers are?” Jack asked Muth. “Do you not find it to be negligent?”
Muth replied, “I’m not sure that we can’t. I just can’t tell you affirmatively today that we can produce that and how long that it will take.”
The judge responded, “OK, I’m going to order you to do it three weeks from today and provide it to the monitors.”
Jack scheduled Wednesday’s emergency hearing to settle a spat over lengthy requests plaintiffs made one week earlier for documents, answers to questions and hurry-up depositions of up to four state employees.
Prerak Shah of Houston, one of the Gibson Dunn & Crutcher lawyers defending the state, protested it was an unreasonable request with less than four weeks to go before the Dallas contempt hearing.
“You have served overly broad requests that demand an astounding amount of production,” he wrote in a letter to lead plaintiffs’ lawyer Paul Yetter of Houston on Sunday.
On Tuesday, Shah filed a brief accusing Yetter and other pro bono lawyers for the children of “moving the goalpost time and time again” with ever-expanding but unproven allegations of state failure.
“They’ve had more than enough time,” he said of plaintiffs’ lawyers. They should either pull down their late-hour requests or ask Jack to postpone the scheduled contempt hearing.
For more than two hours Wednesday, Jack quizzed state bureaucrats about difficulties of producing data and documents that Yetter sought. Yetter agreed to narrow the scope of many of his requests.
Jack said the contempt hearing could last as many as five days.
She warned the state not to try to resurrect an argument it made in 2021 that the lawsuit doesn’t cover “children without placements,” or CWOPs. They are some of the system’s most troubled foster kids, whom providers won’t take. Child Protective Services workers babysit them overnight in hotels, churches and makeshift settings.
Two years ago, Abbott ordered the state to back off from making the argument the CWOPs weren’t part of the lawsuit, Jack noted. However, “it was sort of footnoted in some of your objections” filed recently, she told Shah.
“It annoyed me just a tiny bit,” she said.
Shah and other lawyers for the state said they wouldn’t make such a claim.
The New York-based Children’s Rights filed its class-action case against Texas in 2011.