Long-running lawsuit against Texas’ foster care system appealed to the U.S. Supreme Court

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A long-running lawsuit against Texas’ foster care system may get another look after lawyers representing children in state care asked the U.S. Supreme Court to intervene.

The petition, filed Monday, asks the high court to review a recent ruling from the 5th U.S. Circuit Court of Appeals that overturned a contempt order against the state and removed the judge who had overseen the case to this point.

U.S. District Judge Janis Jack was removed from the case in October, after more than 13 years as the state’s de facto foster care czar. She issued the original ruling in the 2011 lawsuit that found kids were leaving state care more damaged than when they entered, after being “shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.”

She placed the state system under federal oversight, which the state fought in court for many years.

In the years since that initial ruling, Jack found the state in contempt three times for failing to comply with court ordered reforms. The most recent contempt order was in April 2024, when she ordered the state to pay $100,000 a day until it could prove it was properly investigating abuse and neglect allegations among the most disabled children in state care. The state appealed that ruling.

In October, the 5th Circuit reversed Jack’s contempt order, ruling that it was criminal, not civil in nature, and ordered her removed from the case. Jack has been replaced by U.S. Chief District Judge Randy Crane.

Jack’s increasing frustration with the state’s noncompliance was evident from the bench, which the appeals court described as “a sustained pattern, over the course of months and numerous hearings, of disrespect for the Defendants and their counsel, but no such attitude toward the Plaintiffs’ counsel.”

In the petition to the Supreme Court, lawyers for the foster children said this was an overreach by an appellate court that previously had upheld Jack’s rulings on the merits. Reassigning a judge should be an extraordinary step, “not a workaday offensive weapon for disgruntled litigants,” they wrote in the petition.

Lead counsel Paul Yetter said in a statement this week that Jack held the state accountable.

“Removing her and overturning her contempt order sends the message that these children don’t

matter, and the state need not continue its reforms,” he said. “That’s especially dangerous for children with disabilities, who face life-threatening risks in a system like this one.”

Jack’s contempt order focused on a group of approximately 100 children with developmental and intellectual disabilities who receive round-the-clock care. While most of the 9,000 children in state care are managed through the Department of Family and Protective Services, the Health and Human Services Commission oversees this small cadre of disabled children.

Lawyers for the plaintiffs assert that HHSC has different investigatory standards and has not implemented the same reforms as DFPS, leaving the neediest children the most vulnerable to abuse within the state system.

Jack agreed, ordering that HHSC Commissioner Cecile E. Young be held personally in contempt for a failure to properly investigate allegations of abuse. The 5th Circuit, in overturning that ruling, found the state was largely in compliance with investigatory requirements and the ones that were not were “just a drop in the bucket of systemwide investigations.”

Yetter and his co-counsel requested a rehearing before the whole 5th Circuit, which was denied. Judge Stephen Higginson disagreed with denying the request, along with three of his peers.

“I doubt that relegating disabled children, who are most at risk of abuse and neglect in the foster system, to a separate and inferior system of investigations pencils out to substantial compliance under even the most austerely mathematical of standards,” Higginson wrote.

He also disagreed with the removal of Jack, writing that an appeals court should “exercise the utmost restraint in removing district court judges from cases, especially based on sharp and sarcastic statements to counsel of a kind that we have been known to deploy ourselves.”

Citing this dissent, as well as previous Supreme Court precedent, lawyers for the plaintiffs have asked the Supreme Court to reinstate the contempt order and Jack. DFPS and HHSC declined to comment through spokespeople.

The court is expected to decide later this summer whether to take up the case.

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