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Agreement filed in court to address ongoing Texas foster care problems

Paul Yetter, the lead attorney in the child foster care case, told KVUE children are staying in places not equipped to care for them.

AUSTIN, Texas — An agreement between Texas Health and Human Services (HHSC), the Texas Department of Family and Protective Services (DFPS) and plaintiffs was filed in a U.S. District Court on Friday to come up with a solution to the state’s ongoing foster care system problems.

Last month, a new report outlined Children Without Placement (CWOP) issues within the system, showing the problem has gotten worse since 2015, when the foster care system was ruled unconstitutional.

Paul Yetter, the lead attorney in the child foster care case, told KVUE children are staying in places not equipped to care for them.

"In the first half of this year, over 500 children spent at least one night in an unlicensed state-run facility," said Yetter. "In other words, an office conference room, a hotel, a church, some other place that without proper caregivers and the proper sorts of environment for them."

These unlicensed state facilities include hotels, churches, shelters and even caseworkers' offices.

"The State realizes this is as bad as it is, and it's getting worse," Yetter added. "[The] State needs to focus on it and get it fixed because these children's lives are at stake."

During a Sept. 14 conference before the court, the parties involved agreed the problem is due to “ongoing gaps in appropriate services and placement in Texas.”

According to the court filing, the parties agreed to seven provisions:

  1. A panel of three independent, nationally respected child welfare experts will convene to understand, assess and recommend potential improvements. This panel will consist of an expert chosen by plaintiffs, an expert chosen by defendants and a third expert chosen jointly by the two experts designated by the parties.
  2. The Expert Panel will begin work immediately upon being selected. It will work collaboratively with representatives of HHSC, DFPS, plaintiffs’ counsel, and the Monitors. Its work will include access to all available data and nonprivileged information maintained by defendants that is relevant to this issue. The Expert Panel will decide which and whether data is relevant. It will determine how it carries out its work and will have full and prompt access to defendants’ relevant data in doing its work. Defendants may assert legal privileges should the scope of a request by the Expert Panel for data or information include legally privileged materials. The Expert Panel’s work may be assisted, in its members’ reasonable discretion, by a staff chosen by the Expert Panel. The cost of its work, including work of its staff, will be paid by the plaintiffs from and to the extent of funds currently held in trust for the class by plaintiffs’ private law firm counsel from the Court’s initial attorney fees award. Defendants are not obligated to pay for the costs or fees incurred by the experts or their staff. Terms setting forth in more detail, the duration and scope of the Expert Panel members’ engagements, will be provided in agreed upon letters of engagement.
  3. The Expert Panel and parties will maintain the confidentiality of non-privileged data provided by defendants, and any work product developed by the Expert Panel, unless such data has been obtained through lawful means other than the work of the Expert Panel. Before beginning their work, the Expert Panel members and staff will execute the stipulation of confidentiality previously approved by the Court in this case (Amended Protective Order, entered July 12, 2012 [ECF No. 138] (the “Protective Order”)). All parties agree that each of the Experts is a “Qualified Person” as that term is defined in the Protective Order. All meetings, data, discussions, and deliberations in which the Expert Panel or its staff participate will be confidential and subject to the Protective Order.
  4. The Court and Monitors will have full access to all data considered and work product produced by the Expert Panel. The Monitors and their staff will remain subject to the current confidentiality protocols as approved previously by the Court. The parties’ confidentiality commitments do not bind the Court in any way.
  5. The data and any work product developed by the Expert Panel may be used by the Expert Panel members and the parties only for purposes of this engagement. The parties will be entitled to review the data and nonprivileged information reviewed or considered by the experts in developing recommendations and without waiving any claims of privilege or protections. This collaboration between the parties falls under Federal Rule of Evidence 408; therefore, neither the Expert Panel’s work product nor any data provided pursuant to this agreement may be relied upon in any legal, administrative, or other proceeding by the parties or members of the Expert Panel. Nor will any Expert Panel member be called by any party to testify in this litigation, unless by agreement between all parties. This commitment by the parties not to call any member of the Expert Panel unless by agreement of the parties does not bind the Court.
  6. The Expert Panel will work with the State to develop a plan containing specific, concrete recommendations to the parties and Monitors concerning CWOP as soon as practicable and, if feasible, by Dec. 15, 2021. Parties agree the plan may be shared with the Court via the Court’s Monitors.
  7. The Expert Panel recommendations are advisory. While defendants commit to cooperate in good faith with the Expert Panel, and consider the recommendations, defendants are not obligated to accept the recommendations in whole or in part, and the recommendations will impose no obligations upon defendants. Within 15 days of the parties’ receipt of the Expert Panel’s recommendations, the parties, the members of the Expert Panel, and the Monitors will convene in a meeting to discuss the recommendations and to establish a date certain by which defendants shall notify the plaintiffs and the Court’s Monitors whether they accept and intend to implement the recommendations in whole or in part. The parties’ representatives at the meeting shall include counsel for the plaintiff class, counsel for each defendant, and agency leadership including the Commissioners of DFPS and HHSC. No privileges or protections are waived by defendants by virtue of disclosure to the Expert Panel or any of its members. Nothing in this Agreement expands or limits the scope of this litigation or any injunctive orders entered in it.

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