Federal Judge Hits Texas DFPS with $50,000/Day in Fines

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November 12, 2019 by Robert Franklin, JD, Member, National Board of Directors

When I practiced law, I never had a judge find me or a client in contempt of court.  I never had a judge say this to me or a client:

I can no longer find [you] to be credible in any way,” Jack said. “It’s shameful … You all cannot be relied upon for anything. Period.

Or this:

You have created a crisis. You are trying to fix it and blame it on somebody else.

I’ve never had a judge accuse a client of lying under oath, threaten to put a client in jail or reprimand me or a client for lack of appropriate courtroom decorum.

But then I never represented the Texas Department of Family and Protective Services either.  Federal Judge Janis Jack did all that to TDFPS officials during a recent hearing on whether the state had complied with court orders.

Then she issued another order fining the state a whopping $50,000 per day until those officials can show compliance.  That’s until the end of this month.  If they still haven’t obeyed Jack’s orders, the daily fine doubles.

That’s another experience I never had during my years in court.

Yes, Judge Jack is none too pleased with the Lone Star State’s recalcitrance.  She’s particularly irritated that, four years after the end of a trial that resulted in her finding the state to be routinely violating the constitutional rights of children in foster care, state officials still can’t tell her if group homes have adult supervision 24 hours a day. 

You wouldn’t think that would be too difficult to figure out, but, for whatever reason, the DFPS hasn’t.  In addition to the new order, the state faces paying tens of millions of dollars in attorneys’ fees to plaintiff’s lawyers due to its foot-dragging and general lack of responsiveness to the post-trial process.  Those millions, plus whatever fines the state ends up paying, could of course have been spent on improving services for kids, but apparently that’s not how Texas does things.

Attorneys for the state argued that child welfare officials had worked hard to understand — and implement — a complicated series of orders from the courts. Much of Tuesday’s testimony centered on the fact that Texas relies on private contractors to provide homes for foster children, with child welfare officials saying they had informed the operators of group homes and shelters about the new standards they must adhere to.

That of course is precisely the dodge that the state’s decision to privatize much of its protective services to kids allows officials to make.  The claim is that the state doesn’t always know what the private contractors are or aren’t doing, because, well, they’re not part of the state.  It’s a bogus claim of course because, whatever else may be true, the state’s job is to provide protection and services to kids.  It can hire private entities to do that job, but the final responsibility still lies with the state.

Needless to say, that was Jack’s point when she mentioned “blaming [the crisis] on someone else.”

We’ll see where this goes.  A state run by Greg Abbott and like-minded officials won’t easily knuckle under to a federal judge.  But as time goes on, the costs of litigation pile up and the state is seen to spend huge sums on lawyers and fines instead of its most vulnerable children, public sentiment for the governor will inevitably wane.

And as always, kids in Texas foster care are paying the price.

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