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U.S. District Judge Janis Jack unexpectedly ended a hearing on Tuesday afternoon in the decade-long lawsuit against Texas over the failings of its foster care system, saying it was time to “cut to the chase” and find solutions.

“All I want us to do is get together and find solutions,” Jack said. “I'm not interested in sanctions or putting feet to the fire anymore. I just want these children to be safe.”

Jack suggested the parties involved get together along with the court monitors — who have become subject-matter experts — to identify solutions to the ongoing issues plaguing the foster care system. Her court clerk said the judge canceled the hearing’s continuation for Wednesday as well.

For three hours, the judge, legal counsel for the children, and state officials had been discussing new findings from court-appointed watchdogs, including details of unlicensed and dangerous placements — such as offices and hotels — into which foster children have been placed, where many were given the wrong or improper doses of medication, exposed to sexual abuse or engaged in self harm.

Jack made her suggestion of the novel approach after Paul Yetter, lead attorney representing children, asked if the Texas Department of Family and Protective Services would be willing to sit down with his team and other state agencies to discuss potential solutions.

The judge asked Yetter for his thoughts on solutions and made her decision. During the morning, she had repeatedly talked about how so many of the same issues have continued to plague the foster care system for the last 10 years despite the federal lawsuit.

“I don't know if anything would be served by continuing the hearing,” she said. “Should we try to put our heads together and see if we can come up with something workable?”

DFPS Commissioner Jaime Masters said she was “100% in agreement” with the judge’s suggestion, and other state officials also signaled support.

Jack said that before she moves forward, she wants the governor’s sign-off and support for the plan.

“Governors in the past, as well as this governor and legislators in the past, have done study after study after study and had come up with the same issues — the same exact issues,” she said. “I think that if we all work on this, we can find a way to help to keep these children safe.”

Tuesday’s hearing began after the release of the court monitors’ latest report, which detailed disturbing conditions that children in state custody endured this year after being placed in unlicensed facilities.

Children in unlicensed placements were at times given the wrong medication, while others went without their prescribed medication for days, according to the report. Investigators found evidence of child-on-child sexual abuse. Some children ran away, and there’s evidence that some communicated with sex traffickers. Untrained staff members restrained children as young as 7, and in one placement a security guard handcuffed a child.

The monitors also discovered that children with serious emotional disorders harmed themselves while in state custody, and some of them did not receive treatment. There is evidence that children cut themselves with sharp objects, attempted to hang themselves to the point of losing consciousness and ingested cleaning fluids.

Unlicensed placements have continued to balloon in Texas since last year. During the first half of this year, 501 children spent at least one night in a non-licensed state-operated placement, the new report said. On average, children spent two weeks consecutively in unlicensed placements, with one child spending 144 consecutive nights in such placements.

In 2015, Jack had ruled that the state was violating foster children’s constitutional right to be free from an unreasonable risk of harm, saying that children “often age out of care more damaged than when they entered.” Since then, many hearings have been held in federal court, Jack issued several orders aiming at overhauling the system and the state was found in contempt of those orders twice. The monitors act as watchdogs over the system, investigating the harm to children within it.

Yetter said he was looking forward to the opportunity to discuss solutions.

"We're cautiously optimistic. The safety of these children is our top priority, and right now everyone agrees that they are in dangerous, harmful placements," Yetter said in a statement after the hearing ended. "The prospect of working together on a real solution, especially with the blessing of the Governor, is the best path forward. I look forward to getting started as soon as possible."

After dozens of facilities closed recently, the system lost hundreds of beds, especially ones meant for children with highly specialized needs. Many of the facilities that shut down were first put on heightened monitoring — a probationary status that requires the state to more closely scrutinize a facility’s operations and put it on an improvement plan.

In Texas, 485 licensed facilities provided placements for foster children between 2015 and 2020. Out of those, the report says 127 were placed on heightened monitoring — representing over a quarter of facilities — after racking up a high number of minimum standards violations in recent years. There were nearly 29,000 children in Texas' child welfare system as of Sept. 7.

And while some foster care providers have said these closures were triggered by the actions of the court, the monitors maintain that those actions were necessary.

“There is no question that the operations that qualified for Heightened Monitoring had serious child safety problems,” the monitors wrote. In 2020 and 2021, facilities under heightened monitoring accounted for “a total of 631 substantiated allegations of abuse, neglect, or exploitation of children entrusted to their care over the five-year period included in the analyses, and 14,227 minimum standards violations, of which 12,558 (88%) were for minimum standards ranked high, medium-high, or medium.”

Before ending Tuesday’s hearing, Jack responded to the claims that heightened monitoring and court actions were to blame for the crisis.

“Texas is closing these facilities because you've determined they're unsafe for children,” she said. Not a single one that has closed has been found to be safe, she said.

In its own report, the Texas Department of Family and Protective Services, which oversees the state’s foster care system, said the department did not blame the court’s actions for the placement crisis. In the DFPS report’s executive summary, signed by Commissioner Jaime Masters, the agency said putting children in unlicensed placements is a “last resort.” Masters also said the agency struggles to respond to the children’s specialized needs and that pursuing an approach that keeps them with their families and connects them to treatment while at home would help alleviate some of the problems.

The court-appointed monitors’ report detailed numerous accounts of children being harmed in these unlicensed facilities, which it said were often managed by “overwhelmed, untrained staff.”

Nearly as many foster children are entering unlicensed placements — spending nights in CPS offices, hotels, motels and other places under dubious supervision — as are entering licensed group facilities or being placed with foster families, according to the report.

The monitors said children in these unlicensed placements suffered from “substantial risks,” including physical and sexual abuse and neglect, that worsened existing emotional, mental and physical health problems.

“By housing children in these unregulated settings, Texas has assigned children to caregivers who are overburdened and not well-trained to ensure their safety, placing them at an unreasonable risk of serious harm,” the monitors wrote.

According to the report, 86% of the children without proper placements who were observed from Jan 1 to June 30 were teenagers, although the youngest child was 1 year old at the time of their placement. Many of the children require specialized care because of past trauma or their physical and mental needs.

But the monitors say the behavioral and mental issues that children suffered from “were frequently worsened by the very system intended to protect them.”

Since January 2020, the state has lost more than 1,600 beds, the majority of which came from operations that housed and treated children with high needs.

Some of these children have been transferred out of state for care, to Florida, Missouri, Arkansas, Colorado and Kansas, Masters testified during Tuesday’s court hearing.

“We have exhausted every option that we have for placement,” Masters said.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/09/14/texas-foster-care-children/.

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