DALLAS — Attorneys representing the State of Texas in the ongoing legal battle over its foster care system are hoping a decision from the Fifth Circuit Court of Appeals will lead to a new judge presiding over the case and the cancellation of a hefty daily fine.
In its written appeal to the court, the state's attorneys laid out a number of improvements made within the Texas Department of Family and Protective Services (DFPS) and the Texas Health and Human Services Commission (HHSC)- the two departments specifically named as defendants in the lawsuit. According to its appeal, the state has spent more than $150 million on improvements to the foster care system to address the specific remedial orders given by U.S. District Judge Janis Jack, who has presided over the case since it was filed in 2011.
Earlier this year, Judge Jack ruled that HHSC was in contempt of court for failing to properly investigate abuse allegations made by children who are permanently in the state's care. The judge ordered a $50,000 per day fine for two remedial orders she ruled HHSC violated, totaling $100,000 per day. The Fifth Circuit paused the fines as it reviews arguments from both sides.
In addition to the more than $150 million the state says it has paid to address Judge Jack's orders for improvement, attorneys for the state also cited fees the state has paid the two monitors Judge Jack appointed to assess the child welfare system across the state. The monitors, Kevin Ryan and Deborah Fowler, lead teams that travel the state and create comprehensive reports on the compliance and failures of the system that are presented in federal court every six months.
WFAA reviewed all of the monthly invoices both monitors have submitted to the court since they began their work in 2019. As of August, the monitors have billed the state more than $66 million for their time, travel, and expenses to complete their work.
That's more than $35,000 per day.
"Those are just the court monitor fees. That doesn't even include the legal fees," State Representative James Frank said. Rep. Frank chairs the Texas House of Representative's Committee on Human Services, which oversees DFPS and HHSC.
Rep. Frank said he believes the lawsuit brought attention to issues that needed to be addressed within the system 13 years ago.
"I'm not saying the agency is perfect, but they're doing a much much better job, and that is a good thing," Rep. Frank said. "I think, mostly the court monitors, and the continued drag-out of it has actually made it much more difficult."
Rep. Frank said that the "Heightened Monitoring" status, which is a status given to residential childcare facilities, has made it harder to find placements for children with higher needs because more steps have to be taken to place those children at places with that status. He also said the demand on DFPS and HHSC staff to provide information to the monitors in addition to their work creates additional challenges.
"The monitors are essentially running the system," Rep. Frank said.
However, many believe that if it weren't for Judge Jack's status hearings, where the monitors' reports are presented, there wouldn't be necessary accountability for the system.
"Judge Jack is a hero," State Representative Ana-Maria Ramos said. "...to say that it's dragging or that we're spending too much money, we need to really step back and really look at what we're doing because this is our future."
Rep. Ramos cited the billions of dollars the state has spent on other projects, namely Operation Lonestar.
In addition to the court monitor fees, the state is also responsible for the attorney fees for plaintiffs' attorneys. According to court records, the state has already been ordered to pay more than $13 million in plaintiffs attorneys fees. Plaintiffs' attorneys have requested almost $645,000 in legal fees that are still awaiting review and approval from the court. The fees are distributed among the law firms that are working on the case, including Dallas-based Haynes & Boone and Houston-based Yetter Coleman.
Both firms have said they've put their awarded attorneys fees into a trust for children in the foster care system. Paul Yetter, who is the lead attorney on the case, has proposed using the money to help with programs for children in the state's care multiple times but has never been taken up on his offer.
When asked about the state's reference to the cost of the suit, Yetter provided this statement:
"Fees for all 13 years of litigation to fix this system amount to 0.5% of the state's child welfare budget for just 2024. The goal is simple: protect these children. The court’s orders have forced the state to improve in many areas, but there’s still much more to do before all Texas foster children are safe."
For its own defense, records obtained through an open records request show that attorneys working in the Office of the Attorney General have billed more than 30,000 hours working this case since 2011. The OAG's records show it has spent more than $2 million to pay for that work. Last fall, the state hired the private firm Gibson, Dunn & Crutcher to lead its defense. Records from the state's comptroller's office show that the state has paid the firm about $4 million since last fall.
Representatives for DFPS and HHSC said their departments have each contributed a portion to the cost of the plaintiffs' attorneys fee. They also said both departments have dedicated employees, including attorneys, to work on the lawsuit over the years.
In addition to asking the Fifth Circuit to block the contempt fines Judge Jack imposed, the state's attorneys have asked that the case be assigned to a new judge because the state believes Judge Jack has filed to be impartial.
Judge Jack, who has not minced words during hearings in this case, has shut down questioning from the state's attorneys about the cost of the court monitors.
"You don't monitor the monitors. I monitor the monitors," Judge Jack said during a hearing in which attorneys for the state questioned an invoice that was higher than usual. Judge Jack stated that there would be no need for court monitors if the state had properly cared for foster children. In another hearing, she urged the state to take advantage of the expertise the monitors have, calling them a "resource" the state is paying for.
As both sides await a decision from the Fifth Circuit, Judge Jack has scheduled a status hearing to review the latest monitor report for September 19.