More than 13 years after a Corpus Christi judge began overseeing a case on Texas’ struggling foster care system, a federal appeals court has removed her and vacated her order of contempt against the state, jeopardizing the future of the lawsuit.
A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled late Friday that U.S. District Judge Janis Jack’s “intemperate conduct on the bench” could reasonably make an observer question her impartiality, granting Gov. Greg Abbott’s request that the case be reassigned. Abbott is a defendant alongside the heads of two state agencies that manage the foster care system.
The New Orleans judges also struck down Jack’s April order that would have fined the state hundreds of thousands of dollars for contempt of court.
Jack had become “too personally involved in the proceedings” and exhibited a “highly antagonistic demeanor” toward the defendants, Judge Edith Jones wrote in a 36-page opinion joined by panel judges Edith Clement and Cory Wilson.
Jones stated that “the state of Texas had seriously neglected the management of its foster care system, resulting in constitutional violations against vulnerable children that this court affirmed.”
However, the 5th Circuit judge wrote in the ruling, the state has made good-faith efforts to comply in the decade since Jack’s first remedial order and Jack “clearly indicated an intent to continue oversight well into the future. … This contempt order seems a harbinger of even more drastic district court micromanagement.”
More: Texas fined $100k per day for failure to investigate foster care abuse
Attorney Paul Yetter of Houston, who has long represented the class of foster care children who serve as plaintiffs in the case, vowed to appeal the decision to the full court.
“Frankly, this is a sad day for Texas children,” the attorney said in a statement Friday night. “For over a decade, Judge Jack pushed the state to fix its broken system. She deserves a medal for what she’s done. We will keep fighting to ensure these children are safe.”
Since 2011, Jack presided over the lawsuit that put Texas’ foster care system under a microscope, appointing and overseeing court monitors to keep tabs on the state’s compliance and imposing strict standards for state agencies.
In 2015, she ruled that Texas was violating foster children’s constitutional right to be free from an unreasonable risk of harm, saying they often leave the system “more damaged than when they entered.”
In 2016, The Dallas Morning News named Jack “Texan of the Year” for her work on the case. She was appointed by former President Bill Clinton in 1993.
The case brought troubling details to the surface, including in April of this year. In a scathing 427-page ruling, Jack highlighted dozens of instances in which the Health and Human Services Commission left children to go without treatment for physical and sexual abuse and allowed their providers to continue problematic behavior unfettered. The Corpus Christi judge also fined the state $100,000 per day — a sum to be put in a trust for foster care children — for noncompliance with previous orders. The ruling includes the word “fail” 286 times.
As the case went on, Jack became more candid about her frustration with the state. In April, she wrote that agency heads have a “history of failing to comply with remedial orders and (a) lack of commitment to remedying the remaining problems,” suggesting Texas’ foster care system will continue to be under court supervision for several more years.
More: After 11 foster children die, Texas to be in contempt of court – again
The judge held the state in contempt three times, including in 2019, 2020 and 2024. The state paid $150,000 in fines after Jack found it violated orders requiring homes with six or more children to be under adult supervision at all times.
In its ruling Friday night, the 5th Circuit Court panel found that the Human Services Commission’s improvement from 20% compliance with one of Jack’s orders on timely investigations of abuse in 2019 to 84% compliance in 2023 was sufficient. The Department of Family and Protective Services reached 95% compliance on a similar order in which Jack found the state in contempt.
Jack was markedly more candid in comments made during hearings than she was in her rulings, and the 5th Circuit panel detailed many of those in support of its finding that Jack “must be reassigned.”
The district judge made what Jones called a “crude jest” about how she should sentence agency heads and their attorneys to live under the same conditions as foster care children without placement, who sometimes lived in motels or even office buildings. Jack also made critical comments about the state’s spending on private defense attorneys in the case, Jones noted.
The ruling also highlighted several moments in which Jack revealed an emotional response to witness testimony in a December hearing.
“We’re going to take a break, because I’m getting distressed and it’s not fair to this witness,” Jack said, per the ruling. During another witness’s testimony, the judge remarked, “I don’t know how the State sleeps at night with this. I really don’t.”
The three-judge panel also took issue with a trust fund Jack established for children in the system. For more than a decade, while the case has moved between Jack’s court and the 5th Circuit, the plaintiffs’ lawyers have donated to the fund any attorney’s fees the state is ordered to pay, as they are working pro bono.
“Federal judges should not be personally allocating resources from the state’s taxpayers for purposes not directly tied to and controlled by the state itself in order to abide by a court decree,” wrote Jones, an appointee of former President Ronald Reagan. Clement was appointed by former President George H.W. Bush, and Wilson was appointed by former President Donald Trump.
Yetter, who is entitled to recover attorney’s fees from the state, will still put those in a trust for foster care children, his spokesperson Kelly Darby told the American-Statesman.
Abbott hired attorney Allyson Ho and two other attorneys from the multinational firm Gibson Dunn to take the lead on the case in 2023. Ho is the wife of Trump-appointed Judge James Ho, and the other two clerked for 5th Circuit judges, as The Dallas Morning News reported. The two defendant agencies told the News in a statement that they made the hire “to ensure that the State’s interests are best represented in the lawsuit.”
Allyson Ho did not immediately respond to the Statesman’s request for comment.
This article originally appeared on Austin American-Statesman: Appeals court removes federal Judge Jack from Texas foster care case
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