Texas Supreme Court Allows Reinstatement of Portion of Injunction against TDFPS and Commissioner Regarding Plaintiffs' Gender-Affirming Care to Minor
On May 13, 2022, the Texas Supreme Court ruled on a petition for writ of mandamus and on an emergency motion to stay a temporary injunction in a case brought by the parents and doctor of a teen who is transitioning between genders. The emergency motion was dismissed as moot and the petition was conditionally granted in part and denied in part. Plaintiffs had sued Gov. Greg Abbott in his official capacity, Texas Department of Family and Protective Services Commissioner Jaime Masters in her official capacity, and TDFPS in Travis County district court to declare invalid Masters' statement that the department would abide by Abbott's directive (Feb. 22, 2022) to investigate reports of gender-transitioning procedures being performed on minors, citing Attorney General Ken Paxton's opinion that such procedures may be child abuse. The suit also sought declaratory relief that Abbott's and Masters' actions exceeded each one's official authority, violated the separation of powers clause in the Texas Constitution, are unconstitutionally vague, deprive parent plaintiffs of their parental rights, and deprive the child of her guarantee to equal rights. In addition, plaintiffs moved for injunctive relief. The district court granted a temporary injunction (TI) restraining defendants from taking action against plaintiffs pursuant to defendants' public statements regarding investigations and from taking action against any person in Texas based solely on reports of gender-affirming care to minors. Abbott, Masters, and the department filed an interlocutory appeal in the Third Court of Appeals, effectively suspending the TI. Plaintiffs/appellees moved for emergency relief in the court of appeals to reinstate the TI pursuant to Tex R. App. Proc. 29.3, which the court did. Defendants then petitioned the Texas Supreme Court to mandamus the court of appeals to withdraw its order reinstating the TI. The Court issued a majority opinion, a concurring opinion, and a concurring and dissenting opinion. To view all opinions in one document, click here. The TSC denied defendants' petition for mandamus as to the portion of the district court's TI enjoining action by Masters and/or the department against plaintiffs. The TSC conditionally granted mandamus with regard to enjoining any action by the governor against plaintiffs and with regard to the enjoining of the governor's, Masters' and the department's actions against any person in Texas, as Rule 29.3 allows reinstatement only as to parties' rights. Note that the actions in the district court and in the court of appeals have not been heard on the merits yet.
The Texas Supreme Court Children's Commission is offering attorney scholarships for the registration fee for the one-day Child Abuse and Neglect Track at the State Bar's Advanced Family Law Course, conducted by the State Bar Child Protection Law Section, live in San Antonio on August 10, 2022, or for one of the video replays in September and October. The deadline to apply for these scholarships has been extended to 11:59 pm on July 1, 2022. For further details and to access the application form,
The Texas Supreme Court Children's Commission is offering judicial and attorney scholarships for two summer conferences in 2022. One scholarship is for attorneys for the registration fee for the one-day Child Abuse and Neglect Track at the State Bar's Advanced Family Law Course, conducted by the State Bar Child Protection Law Section, live in San Antonio on August 10, 2022, or for one of the video replays in September and October. The other scholarship is for judges and attorneys as reimbursement of up to $1,000 for the registration fee and related travel for the annual conference of the National Association of Counsel for Children on August 22-24, 2022, in Baltimore, MD. The deadline to apply for these scholarships is 11:59 pm on June 17, 2022. For further details and to access the application form,
Lt. Gov. Dan Patrick formed the Senate Special Committee on Child Protective Services in February following investigative errors in response to allegations of sexual exploitation of minors, runaways, and employee misconduct at The Refuge, a residential treatment facility in Bastrop where children in the conservatorship of Texas Department of Family and Protective Services were placed. Patrick charged the committee with reviewing the Refuge case, recent legislation concerning DFPS, and proposing new legislation, including bills to encourage adoption. The committee, chaired by Sen. Lois Kolkhorst, has met three times in public hearings. Kolkhorst said the state has provided DFPS with more workers, more resources, and more money since 2015 but the agency is "going in a circle." On March 17, 2022, the first hearing examined the DFPS budget and specifics of the Refuge allegations and investigation. Witnesses included DFPS Commissioner Jaime Masters, Health and Human Services Commission Executive Commissioner Cecile Young, and Department of Public Safety Director Steve McCraw, among others. Masters admitted in testimony that agency employees, two of whom were fired, "dropped the ball" in investigating reports about the Refuge. Video of the first hearing is available to the public here. The second hearing, on May 3, involved testimony on system challenges, including determination of costs for budgeting, rollout of community-based care programs, and implementation of 2021 legislation. Video of the second hearing is available here. The third hearing, on May 16, reviewed the history of DFPS reforms, including sunset provisions, expert reports, and experts' suggestions. Witnesses from other states' child protection agencies and former foster children also testified. Video of the third hearing is available here.
On Friday, May 27, the Texas Supreme Court issued opinions in In re J.W., No. 19-1069, 2022 Tex. LEXIS 450 (Tex. May 27, 2022). A parental rights termination judgment was reversed and remanded because the jury received a broad-form submission in a trial held prior to the Court's rule amendment prohibiting broad-form submission in parental rights termination cases. Mother had a substance abuse problem while pregnant, and the department said father didn't do enough to help the unborn child and he was too forgiving of and empathetic toward mother. Other issues were condition of the parents' home, whether father intended to move into a more appropriate place, and how much an expectant father is required to do when he knows mother is abusing substances. The majority of five justices agreed termination on the (O) ground was proved; however, evidence on the (D) (conditions) endangerment ground was legally insufficient. With the broad-form submission, the court could not determine on which ground the jury relied in finding father's rights should be terminated. A dissent by three justices said the (O) evidence was not sufficient and they would go further to reverse and render in father's favor. That dissent took the department to task for using the (O) ground to encourage divorce, speculate about future protectiveness, and be subjective in determining service plan compliance. A concurring opinion noted in a new trial father would "not be tarred with mother's sins." To read the majority, concurring, and two dissenting opinions, click here.
The Texas Supreme Court Children's Commission is providing a free, 3-day trial skills course for 21 attorneys who handle child protection cases -- 7 children's attorneys, 7 parents' attorneys, and 7 attorneys who represent DFPS. A virtual "Pretrial Day" will be conducted on Aug. 24, 2022, and 2 in-person "Trial Days" will be conducted on Aug. 31 and Sept. 1, 2022, in Central Texas. The deadline to apply is 11:59 pm on May 27, 2022. For further details and to access the application,
click here. If you have questions or need further information, please email the Children's Commission at CCTraining@txcourts.gov.
Youth Law Center has made available "Five Tips for Helping Transition Aged Youth File Their Taxes and Build Economic Security" by Jenny Pokempner, J.D. This short article explains pandemic-related changes in tax laws that make filing taxes advantageous for transition aged youth, who may be eligible for tax credits and payments. It provides tips for assisting youth in filing taxes and links to helpful sites and other resources. To view the article, click here.
On February 22, 2022, Governor Greg Abbott directed the Texas Department of Family and Protective Services to investigate reports of "sex-change" procedures on children, as described in an Attorney General's opinion issued on February 18. Abbott said the AG opinion makes clear it is against the law to perform "elective procedures for gender transitioning, including reassignment surgeries that can cause sterilization, mastectomies, removals of otherwise healthy body parts, and administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen" on children. He noted reporting requirements on professionals as well. The letter was also sent to other Texas agencies. To view the letter, click here.
On January 11, 2022, Hon. Janis Jack of the Southern District Court of Texas issued an order following a hearing on an expert panel report and the court monitors' third report in M.D. v. Abbott. Both reports are in this Recent News section of the Texas Lawyers for Children home page. Jack's order to Texas Department of Family and Protective Services and to Texas Health and Human Services Commission, based on the reports and hearing, is as follows: 1) DFPS and HHSC ordered to form an interagency committee; 2) HHSC and DFPS to develop a plan within 90 days to expand mental health care services to children; 3) DFPS to develop a plan within 90 days to bring back children who have been placed out-of-state; 4) DFPS to inform the court monitors within 30 days if resources are available for a community liaison; 5) within 90 days, DFPS and HHSC to provide cost analysis of placements for high needs children; 6) by noon on January 14, DFPS to provide a list to the court monitors of every child who refused COVID vaccine, their ages, and their placements; 7) DFPS to provide answer to the court monitors within two weeks as to when standard training will be completed by single-source continuum contractors; 8) DFPS to provide the court monitors by noon January 12 a list of 12 overdue residential child care investigations; and, 9) HHSC to provide to court monitors by noon January 12 its staff turnover rates.
On January 10, 2022, the court monitors in M.D. ex rel Stukenberg v. Abbott, a class action suit on behalf of children in the permanent managing conservatorship of the department, filed their third report. The monitors, Deborah Fowler and Kevin Ryan, were charged by Hon. Janis Jack of the Southern District of Texas federal court with reporting on the department's compliance with remedial measures to reduce the risk of harm to these children, as ordered by the court. The 134-page report points out areas in which the Texas Department of Family and Protective Services complied with the remedial orders and areas in which it did not. The monitors examined documents and data files and conducted interviews on case records, investigations, fatalities, medical records, restraint logs, videos, witnesses, referrals to intake, policies, resources, human resources, and training records. The report includes demographic statistics. To read the report, click here.
On January 10, 2022, National Association of Counsel for Children issued Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Proceedings, the intent of which is to "shape and formalize attorney standards of practice, training protocols, and other policies nationwide." NACC partnered with its National Advisory Council on Children's Legal Representation, with the result that both lawyers and youth with lived experience authored the publication, an update of the 2001 version. The recommendations set out 10 primary duties of attorneys for children and youth, and each of these areas is thoroughly discussed: attorney-client relationship; contact and communication; advice and counsel; meaningful participation; competency; loyalty; confidentiality; equitable treatment; holistic advocacy; and, continuity of representation. To view the recommendations, click here.
On January 10, 2022, an expert panel issued Recommendations for Improving Texas' Safe Placement and Services for Children, Youth and Families, a report to federal judge Hon. Janis Jack of the Southern District of Texas in the M.D. v. Abbott foster care case. The experts were asked to assess the structure and operations of the Texas Department of Family and Protective Services system of foster care and recommend short, medium and long term strategies to reduce and eliminate the number of children in unlicensed placements. The experts are: Ann Stanley, Managing Director, Casey Family Programs; Paul Vincent, MSW, Independent Consultant; and, Judith Meltzer, President, Center for the Study of Social Policy. The report has sections on Data and Trends, Stakeholder Concerns, Assessment of the Problem, and Recommendations. One focus of the report is the disconnect between functions of TDFPS and functions of the Texas Health and Human Services Commission, with a recommendation that an inter-agency team be established and operate with shared goals and principles. The team should establish targets to reduce children in unlicensed and out-of-state care. Other short term recommendations include appointing community liaisons to increase licensed foster care capacity, increase technical assistance, expand crisis services, creating more flexibility in funding concrete supports for trauma-informed care and foster families, working with providers to increase treatment care, increase access for families to wraparound care, convening a provider working group, and increasing access to residential treatment care in lieu of relinquishment of parental rights. Medium and long term recommendations include eliminating barriers and extending the service array for children, developing a statewide children?s mental health system, and strengthening child welfare practice to align with guiding principles and the practice model. Specific steps are outlined for each recommendation. To read the report click here.