Foster care fight heats up in front of appeals court over whether Texas owes $100K daily for violations

AUSTIN (KXAN) -- New court filings in the longstanding legal fight over Texas' foster care system reveal escalating tensions over how the state is investigating certain claims of abuse and neglect and whether it has complied with a federal judge's court-ordered reforms.

Both the state's attorneys and the attorneys representing the foster children in the case filed briefs with the 5th Circuit Court of Appeals this week, as it considers whether to continue blocking daily fines levied against the state by U.S. District Judge Janis Jack last week.

Judge Jack found the state in contempt of court and ordered the executive director of the Texas Health and Human Services Commission (HHSC) to pay $100,000 per day for violating two of the judge's previous orders in the federal lawsuit that has lasted for 13 years. The state's attorneys almost immediately appealed her decision and asked the 5th Circuit to temporarily block the fines pending its appeal.

In her decision, Jack called out "deficiencies" in the Provider Investigations unit of HHSC. The unit is tasked with investigating claims inside certain facilities that house people with intellectual and developmental disabilities — some of whom are children in the care of the state. Jack said the unit was not conducting effective or timely investigations.

The plaintiffs' attorneys, who represent thousands of kids in the permanent care of the state known as PMC children, claimed in a filing this week that by asking the court to stay these fines, it was asking "for permission to keep children in danger indefinitely."

"Severely backlogged, Provider Investigations routinely takes a year or longer to complete investigations, many of which are so defective it is impossible to determine their accuracy," the plaintiffs' filing reads. "Meanwhile, disabled child victims languish in unsafe placements, and facility staff who may have perpetrated abuse also remain a threat to other children."

One of the judge's previous orders, at issue in this latest standoff, says these investigations must consider the child's safety "at all times;" the other lays out a 30-day deadline for higher priority investigations -- unless an extension is approved.

The state argued it is largely in compliance with these orders, but Judge Jack focused on "an extremely narrow subset of investigations," involving 13 children -- representing less than .5% of the total number of PMC children -- rather than on the state's "overall performance."

In their filing, the state's attorneys cited the court monitor's own reviews of more than 1,000 investigations, including those conducted by other investigative units within the child welfare system, not just HHSC's Provider Investigations. Some of these units are housed in another state agency, the Department of Family and Protective Services. Those reports found more than 90% compliance for some of those other types of investigations with regard to the judge's order about considering the child's safety needs, the filing states, and found more than 80% of the investigations were timely or were completed within the deadlines laid out in the judge's other order.

"That’s substantial compliance by any measure," the state's filing reads. The state's attorneys also said nothing in their request of the court "will alter their tireless work safeguarding the welfare of the children in their care and complying fully with the remedial orders."

The plaintiffs' attorneys, on the other hand, said this argument "misdirects the issue."

"The Court should not, as the State seems to request, tell these children to 'hurry up and wait' to be kept safe from repeated abuse and neglect," their filing reads. They also assert the state itself could halt the daily fines by proving to the court that it is complying with the two orders.

The state is also challenging the nature of these fines, as criminal or civil.

This is a developing story. KXAN investigators are still digging through both filings and will continue to update this story throughout the day.