Recent News
SELECTED NEWS ITEM
10/25/24
Court Monitors in the Federal Class Action Suit on Behalf of Foster Children File Eighth Report
On October 25, 2024, the court monitors in M.D. v. Abbott, a class action suit on behalf of children in the permanent managing conservatorship (PMC) of the Texas Department of Family and Protective Services, filed their eighth report. The monitors, Deborah Fowler and Kevin Ryan, were charged by Hon. Janis Jack of the Southern District of Texas federal court with periodically reporting on the state's compliance with court-ordered remedial measures to reduce the risk of harm to PMC children. (On October 11, 2024, the Fifth Circuit Court of Appeals reversed a contempt order and directed the Chief Judge of the Southern District of Texas to reassign the case from Judge Jack to another federal district judge. See Recent News post from October 11 for details.) The 449-page monitors' report, plus three appendices, concerns remedial orders for preventing sexual abuse and child-on-child sexual aggression of PMC children and the Health and Human Services Commission's monitoring and oversight of licensed placements. The monitors conducted site visits and requested information from the department, HHSC, and single-source continuum contractors that provide case management and placement services in the community-based model. The monitors verified that most department staff who have responsibility for determining whether sexual abuse occurred had taken the child sexual abuse training required by one remedial order, but they could not verify compliance by SSCC staffs. Regarding the order requiring training of caseworkers and caregivers on child sexual abuse, the monitors verified that department caseworkers had a high course completion rate, but the monitors could not validate caregivers' compliance with the training order. Four orders concern documenting a child's case record with designation of the child as sexually abused, with confirmed incidents where the child was the victim, with a child's sexual aggression behavior, and with incidents where the child was the perpetrator. Five orders concern notification to caregivers of sexual behavior and/or abuse incidents involving children placed with them. Other orders prohibited placements with more than six children unless they had 24-hour awake supervision. Regarding HHSC's oversight of licensed placements, the monitors studied priority levels assigned to reports of abuse or neglect, investigation outcomes, compliance with duty to report abuse, enforcement of minimum standards, heightened monitoring compliance, and license revocations. To read the report, click here.
Other News Items by Year
On Nov. 2, 2024, three organizations filed a Motion for Leave to File Brief as Amici Curiae and an accompanying brief in support of plaintiffs/appellees in M.D. v. Abbott, the 13-year-old federal class action suit brought on behalf of children in the permanent managing conservatorship of the State of Texas for violations of their due process rights. The filing followed a ruling by a panel of the Fifth Circuit Court of Appeals reversing the federal district court's order holding the Executive Commissioner of the Health and Human Services Commission in contempt and directing the Chief Judge of the Southern District of Texas to reassign the case from the Hon. Janis Jack to another federal district judge on remand. The plaintiff children have moved for en banc rehearing. The three amici organizations are Foster Care Advocacy Center, National Disability Rights Network, and Texas State Employees Union. Counsel for all is Tara Grigg Green. The brief accompanying the motion for leave argues the full court should affirm the contempt finding and points out the dangers for children with disabilities in group homes, the failures of the state to properly investigate abuse and neglect reports involving those children, and the state's reluctance to make improvements. The brief also urges the full Fifth Circuit to deny state defendants' request to reassign Judge Jack. Responding to defendants' allegations that Judge Jack showed animus toward them, the amici point to: her thorough understanding of the state's child protection system and dynamics between the two responsible agencies; her responsibility for improvements the state has made in the 13-year history of the case; and, the high regard in which she holds frontline caseworkers for the agencies. To view the motion and accompanying brief, click here.
On October 25, 2024, attorneys for the plaintiff children in M.D. v. Abbott filed a Petition for Rehearing En Banc, after a panel of the Fifth Circuit Court of Appeals on October 11 reversed the federal district court's order holding the Executive Commissioner of the Health and Human Services Commission in contempt and directed the Chief Judge of the Southern District of Texas to reassign the case from the Hon. Janis Jack to another federal district judge on remand. The rehearing petition requests that the entire Fifth Circuit review three issues: "(1) the panel's holdings that the contempt order was criminal in nature and that civil portions of the sanctions are invalid conflict with precedent and leave disabled children in danger; (2) the conclusion that defendants proved substantial compliance with relevant remedial orders conflicts with jurisprudence of this Court and other circuits and with undisputed evidence of HHSC's failures to protect disabled children; (3) removal of the district judge conflicts with precedent regarding disqualifying bias; gives insufficient weight to the resulting waste, duplication, and delay that will mean thousands of children remain at risk indefinitely; and transforms an extraordinary measure into a workaday offensive weapon for disgruntled litigants." To view the petition, click here.
On October 11, 2024, the 5th Circuit Court of Appeals issued its opinion in the State's appeal of contempt orders in M.D. v. Abbott, the 13-year-old federal class action suit brought on behalf of children in the permanent managing conservatorship ("PMC") of the State for violations of their due process rights. Defendants are the Governor and the heads of the Health and Human Services Commission and the Department of Family and Protective Services. The court reversed the trial court's order holding the Executive Commissioner of HHSC in contempt and directed the Chief Judge of the Southern District of Texas to reassign the case from the Hon. Janis Jack to another federal district judge on remand. In April, Judge Jack held the Commissioner in contempt of her orders requiring timely investigations of abuse and neglect reports concerning PMC children and setting time limits on investigations. The trial court fined the Commissioner $100,000 per day until the agency substantially complies with the orders. The court of appeals held that Judge Jack imposed criminal contempt penalties without due process and erred in not finding the State had substantially complied with the orders. The court ordered the judge removed from the case, citing what the court considered to be her past disregard of the Fifth Circuit's instructions and what the court called her "highly antagonistic demeanor" and "disrespect" toward the State defendants and their counsel. To view the opinion, click here. To view an article by the Texas Tribune providing background, click here.
The 5th Circuit panel heard oral argument in M.D. v. Abbott on August 5 regarding the State's appeal of the sanctions against HHSC and its request to remove Judge Jack from the case. Click on this link to listen to a recording of the argument.
The Texas Supreme Court Children's Commission is offering registration reimbursement scholarships to attend the Civil Appellate Practice 101 Course on September 4, 2024, in Austin, Texas. This course is hosted by The State Bar of Texas, in collaboration with the Appellate Section of the State Bar. The deadline to apply for a scholarship is 5:00 pm on August 14, 2024. For further details and to access the application form,
click here. For questions, please email CCScholarships@txcourts.gov.
The National Association of Counsel for Children (NACC) is offering registration scholarships to attend the 2024 NACC Virtual Conference from September 11-13, 2024 (this scholarship is for the online conference only). The theme for this year's conference is "Working Together, Working Differently: Justice, Compassion, and New Tools for Modern Advocacy." The deadline to apply for a scholarship is July 15, 2024. For further details and to access the application form, click here. For questions, please email Shannon.Felder@NACCchildlaw.org.
The Texas Supreme Court Children's Commission is offering registration scholarships to attend the 2024 Advanced Family Law Child Abuse and Neglect (CAN) Workshop on August 7, 2024, in San Antonio, Texas, and reimbursement scholarships to attend the 47th National Child Welfare Law Conference of the National Association of Counsel for Children (NACC) on August 12-14, 2024, in Salt Lake City, Utah. The deadline to apply for a scholarship is 11:59 pm on June 19, 2024. For further details and to access the application form,
click here. For questions, please email CCScholarships@txcourts.gov.
Texas Lawyers for Children is excited to announce that we have a new section in our Legal Professional Trauma Training Portal where you can find Advanced Trauma and Mental Health Training. These training opportunities are in addition to our FREE 15-hour Legal Professional Trauma Training Program, which meets all of the trauma training requirements under Section 107.004 of the Texas Family Code and also provides 15 hours of Family Violence CJE and CLE credit. To view these trainings, which all have both Family Violence CJE and CLE credit, visit the home page of TLC's Online Center and access TLC's Trauma Training Portal using the blue button. Log in to the Portal and click on the tab titled "Additional CLE/CJE". To learn more, click here.
On April 15, 2024, Hon. Janis Jack held Texas Health and Human Services Commission Executive Commissioner Cecile Young in contempt in M.D. v. Abbott, the foster care class action suit pending in the U.S. District Court for the Southern District of Texas. Judge Jack fined Commissioner Young $100,000 per day until HHSC certifies to the court it is in compliance with two of the court's remedial orders regarding investigations of reported abuse and neglect of children who are in the permanent managing conservatorship of the state and who are placed with certain providers, such as group homes. To view the 427-page order plus attachments, click here. Other defendants in the lawsuit are the Texas Department of Family and Protective Services and Governor Abbott. In June 2023, plaintiff PMC children moved for an order holding all defendants in contempt of 15 remedial orders, and a three-day hearing took place in December. The order relates the history of the class litigation and provides a thorough review of HHSC's and DFPS's failure to correct deficiencies identified by the court with regard to, among other issues, investigations, worker caseloads, use of psychotropic medications for PMC children, and housing of "children without placement," or CWOP. Judge Jack's order carried forward plaintiffs' contempt motion regarding those areas and others. The court set a status hearing on compliance for June 26 at 8:30 a.m. To request remote access to the hearing, click here. Plaintiffs' motion also requested that Judge Jack impose partial receiverships over some agency functions, and she carried that motion forward. On April 16, defendants filed notice of appeal and a motion to stay the contempt order while they appeal it to the Fifth Circuit; however, Judge Jack denied the motion that day "considering the safety of the children." View the motion here and the denial order here. On April 17, the Fifth Circuit stayed Judge Jack's order while the state appeals. This was the third time Judge Jack held a defendant in contempt in this 13-year-old case. The Texas Tribune covered the story here.
The Texas Supreme Court Children's Commission is offering attorney reimbursement scholarships to attend "Handling Your First (or Next) Civil Appeal Webcast Replay" provided by TexasBarCLE on May 22, 2024. The deadline to apply for a scholarship is 11:59 pm on April 17, 2024. For further details and to access the application form,
click here. For questions, please email CCScholarships@txcourts.gov.
The Texas Supreme Court Children's Commission is providing a free, 3-day Contested Hearing Practices Pilot Course for 21 attorneys who handle child protection cases -- 7 children's attorneys, 7 parents' attorneys, and 7 attorneys who represent DFPS. A virtual day of instruction will be conducted on Sep. 18, 2024, and 2 in-person days will be conducted on Sep. 25 & 26, 2024, in Dallas. The deadline to apply is 11:59 pm on April 16, 2024. For further details and to access the application,
click here.
On January 10, 2024, the court-appointed monitors in M.D. ex rel. Stukenberg v. Abbott, a class action suit on behalf of children in the permanent managing conservatorship of Texas Department of Family and Protective Services, filed their seventh 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 defendants' (Gov. Greg Abbott, Texas Health and Human Services Commission, and TDFPS) compliance with court-ordered remedial measures to reduce the risk of harm to these children. Defendants filed objections to the report on January 31. The monitors' 140-page report focuses on remedial orders concerning "Screening, Intake and Investigation of Maltreatment in Care Allegations and Organizational Capacity," describes the monitors' validation method, and calculates the percentage of time defendants were in compliance. Defendants' adherence to caseload guidelines for TDFPS residential child care investigators and HHSC regulatory investigators was strong. The percentage of new child protective services caseworkers who completed professional development training was also high. HHSC's Provider Investigations unit performed poorly in taking a child's safety needs into account, by making inappropriate dispositions or conducting deficient investigations (more than half the time), and by leaving investigations open for too long (often more than a year). The department's performance in answering calls to the child abuse hotline declined from the last report; monitors found gaps in the system for notifying a PMC child's caseworker when the child is the subject of an abuse or neglect allegation; and, monitors found that small percentages of PMC children know about the hotline, the Foster Care Ombudsman, or how to call either. The monitors examined documents and data files on case records, investigations, fatalities, restraint logs, videos, witnesses, referrals to intake, policies, resources, human resources, and training records. The report includes demographic statistics for PMC children. To read the report, click here. To read defendants' objections, click here.
Don't miss the chance to hear Bruce Perry, M.D., Ph.D., internationally acclaimed child trauma expert, speak about one of the most important issues impacting children in foster care on Wednesday, January 31, from 4:00-4:30! Children in foster care continue to face the real risk of being misdiagnosed with a mental disorder and being inappropriately prescribed psychotropic medication, often multiple psychotropic medications. Not only does this harm these children, but it also prevents them from receiving what children who have experienced trauma really need -- trauma-informed supports, therapies, and services.
Since this issue continues to be an area where zealous advocacy for children is needed, we are giving judges and attorneys the opportunity to hear from Dr. Bruce Perry about the reasons children in foster care are often misdiagnosed and inappropriately medicated from a medical and mental health perspective. CLE and Family Violence CJE credit are pending and anticipated. Feel free to share this link, but please know that this webinar is only open to judges and attorneys. YOU MUST REGISTER BY NOON ON JAN. 31. Please email any questions to Molly@texaslawyersforchildren.org.
IMPORTANT NOTE: The video to be shown during this special viewing is part of our Legal Professional Trauma Training. If you are not able to attend on this date and time, you can access this material -- along with 15 hours of free CLE and Family Violence CJE -- by registering through our Legal Professional Trauma Training Portal, which you can access on the home page of this Online Center. For more information or to register, click here.