UPDATE: The 5th Circuit Court of Appeals affirmed on Tuesday, Feb. 11 its 2024 decision to remove Judge Janis Jack from the long-running lawsuit into the state’s troubled foster care system. The court indicated its order to reassign Jack, who has overseen the case for 14 years, will become official on February 19. Attorneys for the plaintiffs said they are considering all available options.
Final word has yet to come down from a federal appeals court in Texas about whether to let stand the removal of an outspoken federal judge who has been overseeing reforms of that state’s troubled foster care system.
But the October dismissal of Judge Janis Jack — who has slapped the state with sanctions as high as $100,000 a day for failing to improve conditions and called child welfare leaders “callous” for failing to protect youth in long-term custody — has court-watchers and advocates concerned about a chilling effect.
“Our judges are not going to completely change how they rule, but are they going to moderate how they rule against the state or against whoever’s in charge? Yes, that would be the concern that judges would do that,” said Chris Gilbert, a partner with Texas-based Thomas and Horton LLP, who has litigated before the 5th Circuit.
The Oct. 11 ruling by a three-judge panel of the 5th U.S. Circuit Court of Appeals to remove Jack from oversight of the case for “intemperate conduct on the bench,” was lamented by attorneys who filed suit 14 years ago on behalf of more than 9,000 foster youth. They called the move “a sad day for Texas children.” State child welfare leaders praised the move, saying it showed they had met their obligations to overhauling the system.
RELATED STORY: Texas foster home linked to boy’s death had history of fight clubs and sexual misconduct, report says
Advocates say there could be fallout from the appeals panel’s decision, and warn of dire consequences for the most vulnerable children in Permanent Managing Conservatorship (PMC) in Texas. They point to the potential for far-reaching impacts on litigation against state agencies and constitutional protections nationwide.
To be sure, district court judges have been removed from cases before. But attorneys who spoke to The Imprint said such removals have typically been based on extra-judicial issues or allegations of extreme bias.
“Instead, a very conservative panel of the 5th Circuit said: ‘Judge Jack, you’re being too mean to the state of Texas, and its lawyers, and you have to go,’” said a Washington, D.C.-based attorney who requested anonymity because the lawyer and the lawyer’s colleagues regularly litigate in federal circuit court, including the 5th Circuit.
In siding with private attorneys representing the state, the three-judge panel said Jack had demonstrated an “antagonistic demeanor” and had shown “disrespect” to Texas Health and Human Services, the Department of Family and Protective Services, agency leaders, and their attorneys. The panel also said Jack — who once told state child welfare leaders, “There are children dying and being injured on your watch” — had not followed its directions against modifying her prior orders. The appellate judges reversed the $100,000-a-day fine and contempt order Jack had imposed against the state in April, the third time she had imposed contempt of court orders against the state since the case began.
“Regrettably, this appeal makes it clear the State of Texas has no interest in working together to protect these children.”
— plaintiff’s attorney Paul Yetter
Attorneys representing children in the Texas child welfare system quickly filed an appeal asking the full 5th Circuit Court to reconsider the October ruling. They sought to have Jack remain on the case and argued against taking Jack’s comments out of the larger context of what she described in court as the state’s repeated failure to comply with her orders.
The state’s attorneys submitted their response to that request in mid-December, in which they argued that appellate panel got it right.
Declining a recent request for comment, spokespeople for the Texas Health and Human Services Commission (HHSC) and the Department of Family and Protective Services (DFPS) pointed to a joint statement put out shortly after the appellate panel’s October ruling, which said: “We are pleased that the Fifth Circuit recognized the significant efforts DFPS and HHSC have invested in serving the children and families of our state. We remain committed and are grateful to Governor Abbott and the Texas Legislature for their continued support in furthering the well-being of our most vulnerable Texans.”
Originally filed in 2011, the Texas lawsuit sought changes in the state’s troubled foster care system, a system that Jack said in a 2015 decision was broken in a multitude of ways, “most importantly, though, it is broken for Texas’s PMC children, who almost uniformly leave State custody more damaged than when they entered.”
Jack had repeatedly been critical of the state’s failure to comply with court orders and its slow progress implementing systemic improvements in how it cares for and protects some of the most vulnerable children in permanent foster care in Texas.
In some cases, the issues were serious and specific: In 2019, for example, the year Jack placed the child welfare agency under court-ordered monitoring, she blasted state authorities for failing to make changes to the electronic records system so that it reflected whether a child in foster care had either perpetrated or been the victim of sexual violence.
In a hearing last February, weeks after the state had filed a petition to nullify some federal oversight, Jack considered filings by plaintiff’s attorneys. They alleged the state was hiding logs of serious incidents and manipulating its statistics on children who had not been placed in foster care and were instead being housed in hotels and shelters.
Jack’s resulting removal was “an extraordinary remedy. It was very, very unusual,” said Jody Madeira, Richard S. Melvin Professor of Law at the Maurer School of Law at Indiana University Bloomington, adding that, in many ways, it “hangs the plaintiffs out to dry.”
The removal also raises the specter that judges overseeing long-running cases could be pulled for expressing frustration with uncooperative parties, which could ultimately cause additional harm to vulnerable groups, Madeira said.
Legal experts have also expressed concern that judges could temper their handling of cases out of fear having their rulings overturned or being removed from cases if appellate judges think they are being too “disrespectful” to recalcitrant state agencies or because they issue or amend orders with which litigants fail to comply.
There is no set timeline for the 5th Circuit to decide on the request for a full, or en banc, hearing into the appellate panel’s decision to recuse Jack. It’s uncommon for a request for an en banc review to be granted, because the court sets aside only a few times a year for those cases to be heard, attorney Gilbert said.
If the 5th Circuit rejects the request for an en banc hearing or otherwise allows Jack’s removal, another judge will be appointed to the case. Court-ordered monitoring has continued, but no hearings on the reports are being held while Jack’s status remains unresolved. Attorneys who spoke with The Imprint said it will take some time for a new judge to get up-to-speed on the case. None would speculate on the fate of the litigation.
In the meantime, plaintiff’s attorneys and advocates continue to voice concerns that the most vulnerable children in Texas foster care are being forgotten.
“After a decade of litigation, Judge Jack expected state leaders finally to cooperate in these long overdue reforms,” plaintiff’s attorney Paul Yetter said. “Regrettably, this appeal makes it clear the State of Texas has no interest in working together to protect these children.”
