Texas will not have to pay, for now, $100K daily in fines related to foster care abuse
Bayliss Wagner
Two days after a federal judge ordered Texas to pay $100,000 in daily fines for failing to implement court-ordered fixes to its foster care system, the 5th Circuit Court of Appeals on Wednesday morning granted a temporary stay blocking the lower court's order and pausing the state's fines.
The penalties — $50,000 daily for each of two orders the court found the state is flouting — are to go to a trust fund benefiting children in the state's permanent care.
U.S. District Judge Janis Jack ordered the fines Monday evening in response to the state Health and Human Services Commission's repeated failures to timely and fully investigate allegations of abuse in the foster care system, holding a Texas official in contempt of court for a third time in the 13-year-old case.
The stay means Texas has a temporary reprieve from being assessed the daily fines until the 5th Circuit Court, located in New Orleans, decides on the merits of the appeal.
The three-judge panel that issued the Wednesday order was made up of Judges Jennifer Elrod and Catharina Haynes, both appointees of former President George W. Bush, as well as Dana Douglas, an appointee of President Joe Biden.
The court gave the plaintiffs — two child welfare advocacy groups — until Monday at noon to file a brief in the case. The defendants — Texas Gov. Greg Abbott, Health and Human Services Commissioner Cecile Erwin Young and Department of Family and Protective Services Commissioner Stephanie Muth — have until Wednesday to file a reply.
In her scathing, 427-page ruling Monday, Jack listed dozens of instances in which errors or delays in investigations left children to go without treatment for physical and sexual abuse and allowed their providers to continue problematic behavior unfettered.
The state argued that the Health and Human Services Commission has "substantially complied" with the order's requirements for investigations, writing that "the Court's own Monitors agreed with the dispositions of more than 94 percent of abuse and neglect investigations" involving children in the state's permanent care.
Jack, however, found that Young, who was appointed to the post by Abbott in 2020, “failed to establish that she has substantially complied or made good faith efforts to comply” with two court orders from 2018 requiring prompt and complete investigations.
Those orders are the same ones that the 5th Circuit modified after the state appealed in 2018, as Jack noted in Monday evening's ruling. An appeals court panel, in partially upholding Jack's original orders in 2018, found that it “seems painfully obvious” that “high error rates in abuse investigations ... place children at a substantial risk of serious harm."
In a motion requesting an emergency stay Tuesday evening, which Jack denied, the state argued that the court is causing "irreparable harm to federal-state comity by holding the Governor-appointed, Senate-confirmed head of one of the largest state agencies in the country (Young) in criminal contempt."
Paul Yetter, a Houston-based attorney who has represented the plaintiffs since the case was filed in 2011, condemned the state's appeal.
"Rather than certify safe, timely investigations of reports of child abuse and neglect, the state seems determined to avoid responsibility," Yetter wrote to the American-Statesman in an email Tuesday. "This appeal sends a terrible message to Texas children that state leadership just doesn’t care about their safety.”
The state's lead attorney, Allyson Ho, is the wife of 5th Circuit Judge James C. Ho, who did not participate in Wednesday's decision.
Neither Ho nor Abbott responded to the American-Statesman's request for comment Wednesday. HHSC spokesperson Tiffany Young said the agency “declines to comment on pending litigation” in an e-mail to the Statesman Wednesday afternoon.
More:Texas appeals $100,000 per day fines for failure to investigate foster care abuse