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The U.S. Court of Appeals for the Fifth Circuit denied on Tuesday the rehearing of a case that removed the federal judge from the longstanding Texas foster care litigation.
Plaintiffs asked the full court to rehear the case after a three-judge panel ruled that Judge Janis Jack should be removed, nullified contempt fines for state failures and eliminated court oversight of large swaths of the state's foster care program.
Jack was removed after attorneys for the state successfully argued she was biased against them.
“Our comprehensive review of the district judge’s conduct throughout the three-day contempt hearing in December 2023 that brought this issue to fruition repeatedly exhibits a highly antagonistic demeanor toward the Defendants,” wrote 5th Circuit Judge Edith Jones in the three-judge panel ruling.
The involvement of the Fifth Circuit in the 13-year-old litigation stemmed from contempt fines levied against Health and Human Services Commissioner Cecile Erwin Young for failures within that department’s Provider Investigations team. It is responsible for investigating abuse and neglect allegations within state-contracted homes housing people with intellectual disabilities, including foster youth.
The contempt hearing detailed how the department had routinely failed to promptly investigate outcries of abuse and neglect among foster youth.
The vote on Tuesday to deny re-evaluating that ruling was nine judges to five.
In a dissent, Judge Stephen Higginson wrote that his colleagues were wrong about the nature of the contempt fines, finding the state in substantial compliance, as well as Jack’s alleged bias.
He wrote that the Fifth Circuit’s ruling that Texas’ foster care system’s compliance on investigations be evaluated as a whole rather than by that failing part under of the department under HHSC, was wrong. Nearly all of the state’s abuse and neglect investigations fall under a different department, the Department of Family and Protective Services.
“I doubt that relegating disabled children, who are most at risk of abuse and neglect in the foster system, to a separate and inferior system of investigations pencils out to substantial compliance under even the most austerely mathematical of standards,” wrote the appeals court judge.
He wrote the decision to deny the request “rested on miscalculations.”
Of Jack’s behavior, he said the Fifth Circuit itself was guilty of the kinds of sarcastic and jarring remarks the jurist made and in the more than a decade dealing with the state and the complexity of the case, he worried that they found “that Judge Jack is not suited to preside over this case for precisely the reasons that she is suited to preside over this case.”
Attorneys for the plaintiffs, which are current and former foster youth, declined to comment on what comes next, other than to say they are evaluating all options.
That could include an appeal to the U.S. Supreme Court.
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