State wants fines struck down, avoiding its accountability
Opinion Editorial from the Dallas Morning News written by a Disability Rights Texas attorney. (Note: link to op-ed is behind a paywall, so text is provided here.)
“Texas lawyers want to convince the 5th U.S. Court of Appeals that the state should not be fined for its failure to investigate the abuse and neglect of intellectually disabled children.
In Texas, foster children with disabilities are in danger, and rather than prioritize timely and thorough investigations to remove these kids from abusive placements and prevent others from being subjected to abuse, the state wants the federal court to help evade its responsibility for the abuses children have experienced in its custody.
Texas also wants to be free of its accountability for the extremely vulnerable children with disabilities who have no choice but to rely upon the state for their care.
Texas’ Department of Family and Protective Services places foster children with disabilities into Home and Community-based Services when it can no longer find placements within their traditional contracted array of foster homes and residential treatment placements. HCS is a Medicaid-waiver program overseen by the Health and Human Services Commission designed to keep individuals with disabilities in the community and out of state-run institutions.
U.S. District Judge Janis Graham Jack, who has been presiding over a class-action lawsuit against Texas on behalf of children in long-term foster care, has told Texas to pay $100,000 per day until HHSC can certify that they are promptly and competently investigating abuse allegations against the very vulnerable children in these homes.
Foster children placed in these homes often have some of the most significant needs, including intellectual disabilities, mental health diagnoses, behavioral challenges and others. Many are nonverbal or have limited communication abilities, making it difficult for them to share if someone is hurting them or if they are unsafe.
Evidence produced by the plaintiffs — and not contested by Texas at the hearing — showed foster children with disabilities have experienced shocking examples of extreme abuse: broken bones, sexual assault and being shocked by Tasers, among them.
And yet, despite the acute need of this population to have zealous protections and investigations into any report of abuse and neglect, Texas officials have enacted a byzantine system of investigating concerns, with many reports going ignored or disregarded due to confusion about jurisdiction.
Investigations that do take place often take over a year due to significant backlog, and even then are woefully deficient, failing to interview victims, witnesses or perpetrators or review files or evidence of prior investigations. Once a finding is made, the investigations often do not state a reason for the finding, making it impossible to understand the ruling and what evidence was considered.
Instead of addressing the dangerous gaps in HHSC’s investigations, Texas is appealing to the 5th Circuit Court of Appeals, asserting that the population of children affected by HHSC’s investigative failures is too insignificant to warrant contempt fines.
Despite exhaustive, painstaking and ongoing documentation by the plaintiffs, child welfare stakeholders, the media and Jack’s own court monitors of the ongoing extreme harms and abuses experienced by foster children in the permanent managing conservatorship of the state of Texas, Texas seeks to be free of many of the remedial orders upheld by the 5th Circuit in 2018 and therefore no longer required to continue to improve the services provided to extremely vulnerable children in their care.
Foster children with disabilities deserve safe homes, and for the state of Texas to care if they are hurt. It is past time for Texas to stop trying to avoid responsibility for the harms vulnerable foster children experience in their care and instead focus their energies and attention on improving the system to protect children from abuse and neglect at their hands. Our children deserve it.
Meredith Shytles Parekh is the supervising attorney on the foster care team at Disability Rights Texas, the Protection and Advocacy agency for people with disabilities in Texas.”