If the purpose of Tuesday’s hearing in the federal litigation against the state of Texas was — for the state — to demonstrate a new legal strategy of opposition and deftness, it failed. If it was merely preparing for larger salvos to come to wrest the foster system from the oversight of a federal judge, it isn’t clear.
The hearing comes as plaintiffs in the case are seeking contempt fines, and the state has shown a renewed interest in fighting the court.
The hearing — like many before it in the now 12-year-old case— displayed a dogged, probing judge, a largely quiet state defense team, and hours and hours of questions and testimony from a variety of state officials representing the Health and Human Services Commission and the Department of Family and Protective Services.
Much was made in the press (by this journalist as well) about the state’s hiring of legal eagle Allyson Ho, the 1300-dollar-an-hour price tag that accompanied her, as well as a well-respected and connected legal team from Gibson Dunne.
But there was little heard from Ho.
“Your Honor, if you would allow me just a moment,” said Ho, who then attempted to deliver a rousing statement of support for the hard-working state foster system staff.
Judge Janis Jack cut her off mid-sentence, saying she was just doing announcements and then asked her who else was present on the Zoom call from the defense.
After calling the roll, the judge launched into the latest report from federal court monitors — their sixth. The report gave credit to the state for progressing on five remedial orders. The orders dealt with documenting specific investigations, notifying providers of abuse and neglect investigations, and quickly interviewing victims.
The report found continued problems with how the state investigates abuse allegations against facilities, how the state enforces the policies that staff are present and awake 24-hours-a-day, and how it holds facilities on heightened monitoring to account.
The judge took the state to task for “fiddling with the numbers” and paving an easier path for placements on heightened monitoring to exit the additional screening. She went so far as to publish draft policies that showed the state allowed multiple facilities that the judge described as “the riskiest of the risky” to exit the state’s stricter enforcement.
According to the document the state proposed moving citation dates (backdating) to when an abuse outcry was reported, rather than when a determination was made. This — as the judge said — allows for state regulators to more easily find a six-month period without violations to push those placements to another stage of monitoring or to put them off altogether.
She listed several foster placements that were cleared to move on through the system, despite these open investigations and/or issued citations.
In one — a placement called Ascension Child and Family Services — a rat and cockroach infestation was found but it was still moved to post-plan monitoring two weeks later.
“Are you that desperate for placements that you would subject your children to this?” she asked multiple times during the hearing.
“Absolutely not. Safety of the children is our foremost concern,” responded Stephanie Muth, commissioner of DFPS.
The judge published the document over the objections of the state lawyers, who called it confidential but could point to no communication of that confidentiality.
“You can’t just object to things because you don’t want the public to see them,” Jack chided.
State employees argued they had never—nor were they going to—put the policy of backdating into place, but that it was a draft. They did confirm the state uses any six-month period free of violation after a facility submits an improvement plan, rather than the prior six months.
Jack ordered the state to change how it enforces awake overnight supervision. Youth are often abused after hours. A significant percentage of youth are abused after entering foster care by other youth.
Having staff awake is a constitutional right, so violations are now to engender stiffer penalties, regardless of outcome. So even if an investigation finds no children were harmed while a staff member was found sleeping on the job, the state has been ordered to act.
Monitors found several investigations into safety violations at placements under heightened monitoring to be misclassified as lesser than they ought to be.
In one, a child found a BB gun while unsupervised and the statute indicates it should be a level one — or major infraction investigation. The state opened a minor infraction investigation.
To the judge, it was more proof the state was using kid gloves on placements with dozens or, at times, hundreds of violations already on its books.
Witnesses representing the state agencies spent more time challenging questions, statements made by plaintiffs' lawyers, and forced more specific interrogatories. There were more objections than might be heard in a previous hearing. But the seven-hour hearing was largely a mirror-image of others though.
For the first time, the state may challenge the monitor's reports. They have already been pushing the court on the charges incurred by the court-appointed investigators who have racked up $46 million in fees. New lawyers for the state indicated they needed time to better review the several hundred-page document as well as appendices for a potential challenge.
Ho is an appellate lawyer, and her team is well acquainted with the Fifth Circuit Court of Appeals. Ho’s husband sits on it and several others with Gibson Dunne have clerked there. So the lack of fireworks Tuesday may be an indication that they are simply burning with a longer fuse.
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