M.D. v. Perry

Plaintiffs: 9 foster children, aged 9 through 16 years old

About the Texas Foster Care System

  • Texas law gives caseworkers up to 18 months to either bring children back to their biological families or find adoptive families for them. After that point, the children enter the permanent managing conservatorship. These children then often face a childhood filled with neglect, abuse, and little hope for their futures.
  • In December 2015, a U.S. District Court found the Texas foster care system unconstitutional because children were not free of an unreasonable risk of harm.
  • The District Court found that children “almost uniformly leave state custody more damaged than when they entered.”
  • Judge Janis Jack said the Texas system is one “where rape, abuse, psychotropic medication, and instability are the norm.”
  • Currently, workers at the Department of Family and Child Protective Services (DFCS) have caseloads that far exceed reasonable professional standards, making it impossible to provide the requisite attention to the cases. DFCS is so overwhelmed that on average, four caseworkers quit their jobs daily.

Allegations

For over 20 years, Texas’ child welfare system has failed its children. The state has consistently failed to provide for the safety and well-being of children who are long-term wards of the state. There are ongoing problems with: high caseloads for workers, resulting in lack of supervision over children’s placements; an inadequate array of placements and services throughout the state, with many children being placed great distances from their families and communities; lack of necessary oversight of private agencies providing foster care services; a high error rate in the resolution of reports of maltreatment in care; the use of group homes where foster children live side by side with biological children, all of whom have varying needs, ages, and genders mixed together without adequate supervision; and the state’s failure to track child-on-child maltreatment.

Advocacy Goals

The executive director of ABC is one of four lead co-counsel in the case, instituted in 2011, representing nine Named Plaintiffs. Our goals are to reshape the Texas child welfare system and to ensure that any reconstituted system corrects the judicially recognized constitutional deficiencies.

Update

In December, 2016, the court-appointed Special Masters recommended an overhaul to the Texas child welfare system, including measures that would, among other things:

  • significantly reduce social service workers’ caseloads;
  • halt the use of foster group homes;
  • reduce the risk of child-on-child abuse;
  • increase the array of available foster home placements;
  • improve medical care available to foster children;
  • improve accessibility and monitoring so that maltreatment in care reports are handled more appropriately.

Despite many attempts by the Special Masters to work cooperatively with the state over the following year, the state would not even consider the many recommendations that the Special Masters made to develop some of the plans to implement the judge’s ruling. During the 2017 legislative session, the state legislature appropriated additional funding for the child welfare agency, but rejected the judge’s ruling in most respects. In December, 2017, the district court judge entered her final order, adopting with some modifications the final recommendations the Special Masters made, ruling that the state was unwilling to make the necessary changes.

While the state administrators of the system seem to agree in their public statements that the current system continues to injure children, the state nevertheless sought an immediate stay from the Fifth Circuit, challenging all aspects of the district court’s order. After an administrative stay and failed mediation between the parties, the circuit court’s merits panel issued a full stay without ruling on the likelihood of success on the merits. The case was argued before the Fifth Circuit at the end of April, 2018.

The state has asserted that it will appeal to the U.S. Supreme Court if it should lose at the Fifth Circuit. In the meantime, Texas’ foster care children continue to suffer.

Plaintiffs

Here are three of our plaintiffs, using pseudonyms

M.D. entered the foster care system at eight years old. She was 17 years old at the time trial began. Having been born into a family of drug users and psychological disorders, she experienced neglectful supervision. The state moved M.D. to her aunt’s house where her cousin sexually abused her. In the absence of any help, M.D. eventually ran away. She was arrested for assaulting an officer and placed in a juvenile detention center. When M.D.’s aunt refused to take her back, M.D. entered the custody of Child Protective Services in August 2007. In subsequent years, the state rotated M.D. through a series of foster homes, Residential Treatment Centers, and hospitals. She reported multiple sexual assaults and physical abuses by staff members, many of which were confirmed in hospitals. Even when Texas investigated and confirmed M.D.’s allegations, they did not take actions to make her safe. In addition, M.D. did not receive medical attention for self-inflicted injuries. Instead, throughout her time in the care of Child Protective Services, M.D. was treated with a cocktail of medications for multiple STIs, Bipolar Disorder, PTSD, ADHD, Oppositional Defiant Disorder, Impulse Control Disorder, Borderline Personality Disorder, Schizophrenia, Mood Disorder, Conduct Disorder, and Major Depressive Disorder.

D.I. became involved with Texas’ child welfare system at six years old when the state received reports that his drug addict mother was neglecting him. After two years, with multiple safety plans being instituted but ultimately failing, the state finally removed D.I. from his mother’s home. D.I. was placed in a foster group home at eight years old, where two older foster children severely sexually abused him on multiple occasions. The caregiver was unaware of the sexual abuse, as he was sleeping downstairs during every incident of abuse. The perpetrators of the abuse had previously sexually abused children in foster homes. D.I. was not tested for STIs after the abuse, even though it is possible that one of the perpetrators had HIV. D.I. eventually was removed to another group foster home, but D.I.’s files did not include any mention of his sexual abuse history. The department tried to cover up D.I.’s sexual abuse history by referring to his rape in case files merely as “problems getting along with older foster kids.”

S.A. entered foster care at five years old and had aged out of permanent foster care at the time of trial. By the age of five, she experienced sexual abuse at a foster home by an older male foster child. S.A. was not removed from the home. Instead, the caseworker labeled the rape investigation as low risk and low priority. S.A.’s foster parents, not the state, asked that she be removed from the home to ensure her safety. After a few years at the Hill Country Youth Ranch Residential Treatment Center (RTC), S.A. had made significant progress, but Texas removed her suddenly from the center against the advice of the center’s staff and directors. In other foster homes, she sustained more abuse. Throughout her time in foster care, S.A. had over 45 placement changes, and she lived in at least 33 different placements, including psychiatric hospitals, restrictive RTCs, and emergency shelters. She also had approximately 28 different caseworkers and due to the constant turnover, she formed no bonds with the caseworkers. S.A. lacked any basic adult living skills at age 17 because of the large number of placement changes and her long amount of time in RTCs. Like so many other children who have aged out of the system, S. A. exited the system unprepared to be on her own.

Case Documents