Texas shares the blame for foster care tragedy

By Randy Burton
Originally published by the Houston Chronicle, November 20, 2010

Sixteen-year-old-Michael Owens, who died on Nov. 5 at the Daystar Residential facility in Manvel, was the fifth child to die at Daystar and the fourth child whose death was caused by asphyxiation while being restrained by the facility's staff. As awful as the facts are about this child's death, it is equally troubling that the state agency responsible for placing this boy at Daystar knew how serious the problems were at this facility and did little more than monitor them.

Responsibility for Texas' broken foster care system rests with state government and, specifically, the Department of Family and Protective Services, which includes Child Protective Services and Child Care Licensing. Not only was DFPS well aware of the prior fatalities at this facility, it had placed Daystar on probation a few days prior to Michael's death—something it had done several times before, obviously without success.

In response, Anne Heiligenstein, DFPS commissioner said: "We also are disappointed to be looking, yet again, at Daystar. We are going to ensure that this facility improves, quickly. Or we are going to close it." I say: Too little, too late. After Latasha Bush's death on Feb. 27, 2002, three days after she was restrained by three staff members at Daystar, Estella Olguin, a spokeswoman for Harris County CPS and Residential Childcare Licensing, said CPS was still placing kids at Daystar: "While the autopsy finding is troubling, it is too soon to shut the facility down." A Harris County medical examiner ruled Bush's death a homicide caused by complications of asphyxia.

The message is clear. Protection of the commercial foster care industry is more important to the state than protecting children. Otherwise, why would DFPS have only placed Daystar on "probation" for what the agency itself called "persistent concerns about the facility and the children in its care"? If DFPS was truly worried about the children at this facility, it should have immediately shut the facility down and moved the children to a safe location.

It is tragic and more than a little ironic that this boy was removed by CPS from his family two years ago because of concerns about his safety and well-being. Yet, CPS placed Michael in a facility with a history of four child fatalities at the hands of Daystar's staff, where he suffered the same fate as the four other children: death by suffocation.

On April 6, 2004, then-Texas Comptroller Carole Keeton Strayhorn called for a massive overhaul of the state's foster care system in a special report, "Forgotten Children," which detailed a widespread crisis in Texas' foster care system. "They are everybody's children and nobody's children," Strayhorn said. "They are the forgotten children in the foster care system. The truth is that some of these children are no better off in the care of the state than they were in the hands of abusive and negligent parents."

The report found that DFPS tolerates vast disparities in the quality of the services it purchases, using taxpayer dollars inefficiently, and fails to take advantage of federal funding. It offers caregivers a perverse financial incentive to keep children in expensive, restrictive placements. Among the dozens of recommendations in her report were:

• Eliminate the inefficient dual system of foster care, one that is run by the state, which creates a conflict of interest in which the agency regulates itself.

• Direct and redirect $193.9 million in savings to better care for children by replacing state caseworkers with independent oversight enforcement staff.

• Immediately move children out of all therapeutic camps that do not meet licensing standards for Permanent Therapeutic Camps.

• Raise standards across the board to humane levels.

• Revoke the licenses of facilities that have ongoing problems affecting the health, safety and well-being of children.

Strayhorn's investigation found appallingly dangerous conditions at a number of group foster care facilities and a system "where regulators regulate themselves." In other words, DFPS is the same agency that licenses these facilities, inspects these facilities, and places children there.

Tragically for the children in their care and custody, such conflicts of interest are pervasive within DFPS. In 1989, the Texas Performance Review Team recognized the inherent contradiction between the protection of abused children and the supervision and preservation of families where the abuse occurred. They reported: "Maintaining the functions in the same agency makes the responsibility of providing social services to a family in need and investigating a report of abuse a nearly impossible situation in which to maintain objectivity and focus." We can ill-afford to leave regulation of our foster care system and protection of society's most unfortunate children to an agency so incorrigibly compromised.

As noted in "Forgotten Children": "Foster care in this state has been studied time and time again; reports are issued, promises are made, and the children continue to suffer. That's unacceptable." Sadly, six years after the release of Strayhorn's report, there is no evidence that anything has changed at DFPS. Since Justice for Children was formed in 1987 to advocate for abused children when they are failed by the system, Texas DFPS has been investigated by the Texas Senate Health & Human Services Committee, the Texas Senate Finance Committee, the Texas Performance Review Team, the Inspector General's Office and, most recently, Comptroller Strayhorn without noticeable reform.

It is high time that our governor and Legislature do something more than give lip service to these intractable problems. On Dec. 1, 2004, Lt. Gov. David Dewhurst called upon Gov. Perry to "declare major reform of the state's scandal-ridden Children's Protective Services a legislative emergency." Subsequently, State Sen. Jane Nelson proposed far-reaching legislation to fix a number of the ills at DFPS including giving law enforcement a larger role in investigating cases of child abuse, yet, virtually none of these proposals made it out of legislative committee.

We can rail against the system until the cows come home. But until our elected officials take ownership of the never-ending failures at DFPS, nothing is going to change. How many more children have to die until our state leadership accepts this responsibility?

Randy Burton is the founder of the national child advocacy group Justice for Children and a partner at the Houston law firm Burleson Cooke, LLP. Read additional guest dispatches by Mr. Burton:

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