Judge threatens to hold state in contempt over CPS children sleeping in hotels

HOUSTON, Texas (KTRK) -- U.S. District Judge Janis Graham Jack started Friday's hearing in the decade-long lawsuit against the state's troubled foster care system hopeful that a new commissioner will turn things around at the Texas Department of Family and Protective Services.

"I know you're going to be a real valuable asset to these children so I'm glad you joined us. You may not be, but I'm glad you came out of retirement to do this," Jack told DFPS commissioner Stephanie Muth, who took over the agency on January 2.

But, it wasn't long into the hearing before Judge Jack began grilling the state for its continued failure to keep all children in its care safe, and in some cases alive.

The video above is from a Jan. 11, 2022, report from a previous hearing in this case.

As of December, there were 11,084 children in foster care statewide, with 1,189 of those children in Harris County, according to state data.

"I understand that these children have very complicated histories, they have great needs, I just don't want them going out of your care with even greater needs, which is what's been happening," Jack told leaders at Texas' Child Protective Services.

A new filing this week in the lawsuit shows during the first 11 months of 2022, there were 612 children who spent at least one night as part of CWOP, or children without placement. About 15% of those children without placement were in Harris County.

CWOP includes children who have been abused or neglected and are in the state's care, but have not been placed with relatives, foster families or a licensed facility due to a shortage of space. This means those children end up staying the night in state offices or hotels.

"The average spell without placement lasted 15 nights, with the longest spell lasting 204 nights, an increase from the previous reporting period," according to the court monitors' report released this week.

13 Investigates first reported about problems with CWOP in 2021, when a teen who snuck out of an unlicensed facility and got shot while allegedly attempting a carjacking.

RELATED: Teen shot after sneaking out, another 'sleeping off a hangover' under CPS's care

Jack asked Muth if she can commit to the state having zero children without placement - thus eliminating the need for children to sleep in hotels or offices - by June. The state couldn't.

"I can commit that we will continue to put the same level of effort towards reducing those numbers," Muth said.

Jack, who in the past has criticized the state for not answering her questions directly or following through on specific directives she's given them, was not pleased with that answer and threatened to hold the state in contempt of court.

"I just don't understand why we're still here," Jack said. "I find that having one child in this type of dangerous placement is unsafe and maybe a matter of contempt hearing in June, I'm just giving you a warning, because there's really no excuse for this. ... "My sympathies go out not just to the children that are damaged (by being) children without placement but the caseworkers that are placed in this untenable (position). ... They don't have the staff in these unlicensed placements, whether they're (sleeping) in hotels or in the DFPS offices."

The state has made some improvements in finding placements for children.

Jack started Friday's hearing providing a review of a 284-page report by court-appointed monitors' report and highlighted some positive steps the state has taken.

"There's some good things and there's some things that need improvement," Jack said.

Specifically, she said she was happy with stronger training for caseworkers and more manageable caseloads. In June, 85% of caseworkers had caseloads within or below the standard of 17 children per worker, which was an improvement from previous reports.

But the judge was disappointed by the time it takes for workers to respond to priority one calls to CPS' statewide intake center.

The report shows it takes an average of 5.2 minutes before calls from people reporting allegations of abuse, neglect or exploitation were handled. That response time is up a minute and a half since this time last year.

Jack also asked the state to provide a list of every child in permanent managing conservatorship who is pregnant and whether or not they got pregnant after entering the foster care system.

She said cases "double" whenever a child in foster care becomes pregnant because the state will not only have to take care of the initial case, but also the newborn.

In one case, Erica Banuelos, an associate commissioner at CPS, said a 13-year-old who became pregnant was supposed to have line of sight supervision.

"That means that we want to have a close proximity to that youth, however we are not in the actual room with them 24/7," Banuelos said. "We leave the door open to where we can do night checks."

Jack said that's not enough and jabbed back, saying "I suppose you could put those ankle bracelets on kids."

"These children without placement ... are getting raped and they're running away and these are line of sight children. It means keep your eye on them," Jack said. "Are we going to abide by this now? Are we going to equivocate and leave the door ajar?"

RELATED: Judge to Texas' foster care system: 'You don't know where the children are'

In another case, a 15-year-old, who was staying at DFPS offices, died under the state's care.

"His caseworker arrived at the CWOP location in the morning and brought him to a friend's home to play basketball and she didn't stay and watch him and he ran away and was the victim of gun violence," Jack said.

Banuelos said they investigated and learned the caseworker didn't even know the apartment number of the person who the teen was dropped off with That employee was fired, she said.

Throughout Friday's hearing, which lasted about five hours, Jack pointed out specific areas where the state needs to improve. Court-appointed monitors will continue observing the state's progress.

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