AUSTIN — Foster children have contracted the novel coronavirus at nearly double the rate of Texas’ general population, according to testimony Friday in a federal lawsuit.
In the seven days before Aug. 28, the rate by which the nearly 11,000 children in the state’s “permanent managing conservatorship” tested positive for COVID-19 was 20%, compared with just 12% among all Texans, said a filing by court-appointed monitors late Thursday.
“I am concerned about that,” U.S. District Judge Janis Graham Jack said shortly before she concluded a two-day virtual hearing on the state’s compliance with her orders in a 9-year-old suit about foster care.
Jack said she’ll hold both state agencies that are defendants in the case in contempt of court for dragging their feet and disobeying her commands.
She vowed to issue a detailed order later, suggesting she would give the Department of Family and Protective Services 30 days to comply before fines kicked in. But she indicated she’ll cut no such slack for Residential Child Care Licensing, a unit of the Health and Human Services Commission.
“I’ve never seen such arrogant disregard of the court’s orders,” she said of the Residential Child Care Licensing unit.
Friday’s testimony by Jean Shaw, who runs that unit as the commission’s associate commissioner for child-care regulation, was “appalling,” Jack said.
The judge, an appointee of former President Bill Clinton, even threatened at one point to hold Shaw “personally” in contempt of court.
It’s been more than a year since the 5th U.S. Circuit Court of Appeals upheld parts of Jack’s findings and remedies, while overturning others. The state’s progress in protecting children from harm is unacceptably slow, she said.
It’s the second time in less than a year that Jack has found Texas in contempt of court.
The first, which resulted in $150,000 in fines last fall, was over the state’s failure to require nighttime adult supervision in all group foster homes.
Speaking of COVID-19, Jack said she’s worried about its effects on foster kids’ health, safety and educational progress.
In their Thursday filing, monitors Deborah Fowler and Kevin Ryan said COVID testing of foster children began in late March and early April, with the first positive tests reported in the second full week of April.
“The number of positive tests began to climb significantly in mid-June, consistent with statewide trends,” the monitors said.
Speaking of youth in long-term foster care, or permanent managing conservatorship, they said, “PMC children have a positivity rate that is considerably higher than the statewide rate.”
The masters continued, “As of Aug. 14, 2020, more operations serving PMC children had reported exposure to COVID-19 than had reported no exposure. To avoid risk of harm to PMC children, [the commission] and [department] should work together to share information they receive about COVID exposure.”
Lists of foster-care providers reporting coronavirus exposure that were compiled by the two state agencies didn’t match, the monitors wrote.
Jack asked state officials to tell her which providers are testing all of the foster children for COVID-19, and which ones are reporting positivity rates of 10% or more.
Jaime Masters, whom Gov. Greg Abbott installed late last year as commissioner of the protective-services department, called the 20% rate of infection among foster children “concerning.”
Asked why they’re contracting the disease at rates higher than the state’s general population, Masters replied, “I can’t say why, except for kids in closer proximity to each other? I don’t know.”
For the seven days before Aug. 7, the rate of positive COVID test results for foster kids peaked at 49%, according to the master’s report. There were 50 positives out of 103 new tests administered to children. The general population’s rate that week was 19%, the report said.
On the children’s educational progress during the pandemic, Jack said, “Learning is not ideal.”
In a recent survey the monitors conducted of foster care providers and Child Protective Services caseworkers, those responsible for nearly 5,700 of the almost 11,000 children in long-term foster care responded, the judge noted.
While 98% of the caregivers have an internet or WiFi connection, only 63% of the children have access to virtual instruction, Jack said.
She asked Masters to explore whether private tech firms such as Dell or Apple might help fill the apparent void.
Masters responded that she would look into the situation.
“I wasn’t aware that we have kiddos that don’t have the equipment that they need to learn, and so that will obviously be on the list” of things she’ll investigate promptly after the contempt hearing, she said.