Lawyers for the State of Texas on Monday tried to convince a U.S. appeals court that it should not be fined for failures in investigations of abuse and neglect of intellectually disabled children.
The state wants $100,000 per day fines struck down as well as the federal district judge presiding over the case removed.
But it did not sound like the three-judge panel needed much convincing. The 5th Circuit Court of Appeals seemed poised to strike down $100,000 a day contempt fines against the state Monday.
The fines were assessed against Cecile Erwin, executive commissioner of the Health and Human Services Commission (HHSC). The court said her department violated two of the more than 60 court orders imposed on Texas’ child welfare system.
The three judge panel — all Republican presidential appointees — questioned plaintiffs’ attorney Paul Yetter over the state’s arguments.
Justice Edith Jones, a Reagan appointee, was not swayed by the state’s failures to investigate abuse and neglect claims of intellectually disabled children but was more interested with the small number of children affected in the contempt finding (around 60 investigations) versus the more than 8,000 children in the system.
Both Jones and Justice Cory Wilson — a Trump appointee — continued to cite the state’s high compliance rate found by the court’s monitors for both of the orders the fines were assessed over. These questions echoed the state’s arguments in briefs that the state was being misevaluated — and in fact was in substantial compliance with the court’s orders it was being fined over.
Yetter pointed out the compliance rates apply almost entirely to the Department of Family and Protective Services, not HHSC — the agency that was fined.
“It is no answer for the State of Texas to say this agency, HHSC, has got a terrible record with investigating reports of abuse and neglect for developmentally disabled children. But that's okay, because a different agency for different children has a much better record,” he said.
Jones also questioned how plaintiffs could describe Texas as intransigent when it has spent more than $150 million to improve its system.
Yetter conceded it was a lot of money but reminded the court that was about 1.5% of an annual budget.
Texas has argued that Judge Janis Jack, who has overseen the case from a U.S. district courtroom in Corpus Christi, has shown bias in her rulings — that “the district court’s animus has infected its rulings” and Jack can’t be trusted to continue in the role, they wrote.
Much was made about the barbs and threats made by Jack — who has overseen the case for 13 years — as biased. Yetter attempted to add context to the quotes included in the state’s brief.
Allyson Ho — a partner at Gibson, Dunn & Crutcher LLP, the firm hired last year to represent the state in the case — argued the fines were ordered in a flawed process and should have included a criminal-contempt trial.
“It should be reversed for one fundamental reason, it metes out a criminal penalty in violation of due process and sovereign immunity,” Ho said.
The state’s position was that the fines were for past violations of the court order — which could not be changed — rather than compelling future action.
Yetter disagreed, stating the monitors had first made the state aware of its issues with Provider Investigations in 2021 — but the state continued to do nothing.
Wilson asked about why the state could not just certify it was in compliance with Provider Investigations as the judge asked — stopping the fines. Ho’s response was that the state was already in compliance based on monitor reports — citing previous numbers.
Justices did not ask questions around the threat to federalism Ho had made in briefs. The state had argued that the case violates separation of powers and gives “serious federalism concerns.” Other conservative attorneys general seized on this idea — arguing in a friend of the court brief that federal court power in institutional reform cases like these need to be reigned in.
At a three-day contempt hearing in December, HHSC's Provider Investigations was found to have failed to promptly investigate allegations of abuse and neglect of children with intellectual disabilities, at state-contracted facilities.
The contempt hearing showed the PI department had struggled to keep up for eight years, at times leaving some of the most vulnerable children in facilities with their abusers for months.
One investigation into a child called “Child C” was delayed a year. The same child was once dropped off at a hospital by staff of C3 Academy, where she lived, with a broken jaw. That was just one of several incidents that the child endured, according to court documents.
This is the third time Jack has found the state in contempt. It is only the second time the court has assessed fines. Those fines came to a total of $150,000.
History of the case
Several minor children filed suit in federal court against the state in 2011. Lawyers said the state violated their civil rights. After a two-week hearing in 2015, Jack agreed, finding in favor of the plaintiffs, saying that many children left Texas’ system worse than when they went in.
Several of her court orders were appealed and struck down, but the 5th Circuit validated more than 60 others.
The number of children represented in the case has dropped as well. When the case began, there were more than 12,000 in the Permanent Managing Conservatorship system. Now there are around 9,000.
The court hired Kevin Ryan, a child welfare expert, and Deborah Fowler, executive director of Texas Appleseed in 2019. The two, along with a team of investigators and staff, have generated multiple reports that show the state’s progress in reforms. Many of those reports have also shown the pernicious problems that have plagued the state’s system.
James Frank, a Republican state representative, has been critical of Jack, blaming her for the lack of mental health placement capacity issues.
“Basically nobody wants to work with the state of Texas on high risk kids, because you are going to end up under the thumb of the judge if you do,” he said in an interview two years ago.
Many foster placements — often those with multiple licensing violations — did shut down rather than come into compliance with state regulations associated with the lawsuit reforms. Advocates have argued the number of placements for high acuity or mental health needs was not as affected by the closures.
Lawyers for Texas said in a filing the state has spent $150 million on foster care reform and an additional $60 million on court monitors.
Yetter pointed out DFPS is a $2 billion a year agency.
That is a fraction of 1% of the state’s $321 billion two-year budget. It’s also roughly the same amount the state said it spent on bussing migrants to Democratic cities, a bill it racked up in two years.
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