A skinny 16-year-old languidly slumped in his chair at 45th District Court at the Bexar County Courthouse. The Black child leaned to one side so far that his head sat seemingly disembodied above the table — the rest of his torso below it. The boy’s name was not public. In this civil hearing he was called "J.D." His bored face soon filled with nervousness.
Six stern Bexar County sheriff’s deputies drifted in and out. They quietly conversed and also barred exit from the courtroom. No one was allowed to leave, the judge ordered.
But the judge wasn’t on the bench. She along with half a dozen other attorneys, case workers, and state lawyers for the Department of Family and Protective Services (DFPS) gave statements to a criminal investigator from the sheriff's office.
A crime may have been discovered in this court, observers said. If so, it posed serious questions for how the state cares for the youth in its care.
The hushed intensity emanating from behind closed doors revolved around the presence of a stocky and tired looking 62-year-old white man with a slightly unkempt haircut and broken suspenders sitting in the court gallery. J.D. had arrived at the court with the man that day.
J.D. looked back at him from the front of the court and mouthed the words “I’m sorry.”
“This is insanity,” read a text from a person observing the court proceedings.
J.D. has lived within the state’s foster care system since late 2021, and for that same amount of time has been in and out of foster homes, residential treatment centers, psychiatric facilities. On this day in June, he had no permanent placement and was living in a hotel at the state's expense as what the state calls Child Without Placement (CWOP).
But his housing situation was not the “insanity” referred to in the text. In fact, more than 100 kids each month sleep in hotels or unlicensed placements staffed by undertrained and/or overworked CPS workers or contractors. A report from federal court monitors put out two years ago called the situation dangerous. Kids have died, they were sex trafficked and they were impregnated while under CWOP status.
While the numbers of children each night abated from the highs of July 2021 at more than 400 — the danger to those youth has not, and the state has failed to stop putting children in this position.
The “insanity” on this day was that J.D. arrived at court with the 62-year-old man— who said he wants to be the boy's foster parent and that J.D. had already been staying with him many nights for more than a year.
The "insanity" was that the man showed up to court and volunteered to take a drug test which he failed. He tested positive for methamphetamines and ecstasy, according to a source.
The “insanity” was that many in the court suspected the man to be in a sexual relationship with the boy and was now asking for Texas to sign off on it — that a sort of bizarro-world “To Catch A Predator” episode was playing out in front of them.
“It takes a special kind of man to come to court with a foster child after he has been having sex with him to ask a judge to sanction that,” speculated one person who was present.
In describing his desire to foster J.D., the man brought his iPad to the stand to give additional details about his employment. The tablet was then searched by lawyers, and its contents were alarming enough to close the court and call in the sheriff's deputies.
But, ultimately, the sheriff’s department said the incident didn't result in an arrest, and the investigation has been closed.
TPR was unable to speak directly to J.D. for this report. Because of this and also the lack of publicly available details, TPR will not publish the man’s name.
But the questions remain:
Could the state of Texas’ foster system — challenged by the lack of beds and services that render high-need youth veritably homeless — be so far gone as to invite these scenarios or ones like them?
What about grown men with spotty criminal records applying to become foster parents — ones who also may be predators? Children being housed in hotels around so-called prostitution hubs? A lack of structure in hotels that results in higher incidents of running away?
And, in the end, how hampered will children who were touched by CWOP be?
Given the many documented instances of youth going unsupervised and the resulting outcomes — at what point does the state of Texas become culpable in their continued exploitation?
The case highlights the confusion, malaise and concern around the long standing CWOP problem.
Coming into this June hearing, J.D. had been running away from the hotel he was stowed at for weeks. According to testimony in a previous hearing, in a 14-day period he had been missing for a significant amount of time, more than 10 days. Many nights the boy would walk out of the hotel and not return until the following morning. He walked out, ignoring case workers and paid security guards who were powerless to stop him and who did not follow. (Texas spent nearly $30 million in security contracts to two firms over a two-year period to be present at CWOP locations.)
J.D. returned a morning earlier in the summer and said he had been sexually assaulted.
“I have a client who regularly elopes and comes back saying he was sexually assaulted,” said Irene Cadena, one of J.D.s five attorneys.
Two sources told TPR they suspected the boy was trafficked for sex from the hotel paid for by Texas taxpayers.
In previous hearings, Judge Mary Lou Alvarez reprimanded DFPS — asking why they continued to fail to supervise the child. Case workers were grilled.
“What is the department doing to hold adults responsible who have lost this child and been unable to care for this child?” she asked.
“I am not aware of any actions, judge,” said a nervous DFPS worker.
Trafficking children in Texas care
The concerns about children in CWOP being in danger and the culpability of the system echoes across the state from judges and lawyers.
“Having a child client categorized as a Child Without Placement (CWOP) is one of the most distressing experiences for me as an attorney,” said Emily Miller in a September letter to three judges in Central Texas who take CPS cases.
Sleepless nights were spent worrying about physical and sexual harm coming to her clients. Much of that concern was over the hotels that DFPS chooses to put kids up in.
They are on the interstate with high visibility and in many cases prostitution hubs, she wrote.
“My child client was able to walk out of the hotel room and hotel itself and was immediately able to sex traffic herself within the hour,” she wrote.
Staff again could only watch as she left. Weeks later, they found her two counties away, having been sexually assaulted. The men who assaulted her client were arrested.
Responding to the letter, the judges decried the ongoing placement crisis to DFPS administrators and asked for a meeting about the CWOP system of unsafe and unlicensed placements leading to trafficking, injury and youth running away. In the Austin-region eight foster children were missing at the time, two who had been sex trafficked previously.
At the meeting, one newer administrator said they thought coming into DFPS there would be some easy fixes around CWOP that could be addressed, but that turned out not to be the case. According to notes from the September meeting TPR has reviewed, CWOP posed a massive challenge to the agency, requiring long-term, systemic change.
DFPS said they were changing how youth in CWOP would be watched and managed with the hope of addressing this. They would increase mobile crisis teams and placement team staff. They would better coordinate with the Department of Public Safety to address staff safety concerns and missing or exploited kids.
“The health and safety of youth and staff is of the highest priority,” said Jennifer Sims, deputy commissioner of DFPS, in a letter to the judges after the meeting.
The response was less than enthusiastic from the judges.
“We are frustrated that DFPS has not communicated their intentions on how they are going to work with judges and lawyers to comply with the law,” said Aurora Martinez Jones, judge of the 126th District Court in Travis County.
She said the response was unimpressive and at times offensive since it implied judges and lawyers expressing concern didn’t “understand the law.”
The state neglects its kids
When a child is in CWOP, it can mean that they were just removed from a home, another placement didn't work out, but often the rights of the parent have been terminated, making the state its parent.
The challenge that CWOP poses for judges specifically is that if parents behaved the way DFPS does with CWOP kids (a lack of supervision, not enforcing school attendance, etc.), multiple judges TPR spoke to said they would remove its kids.
“I think the state has a duty to hold themselves at least to the same standard, if not a better standard.” Martinez-Jones said.
So the children continue to live in hotels overseen by CPS workers who, according to federal reports, had full caseloads for many months and are working overtime.
“There have been times where I have walked into a room where the workers were engaged in other activities outside of watching the child in their care. And I sat down and engaged and spoke with the child for ten minutes plus before the workers looked up and said, ‘oh, who are you?’” said Artessia House, a guardian ad litem, representing multiple CWOP youth, including J.D.
She described the youth as being warehoused without many needs being served. They lack programming or therapeutic support in hotels. Kids are asked to participate in online school, but they don’t have the required glasses. Youth sleep through classes because CPS staff don’t wake them up and they don’t have an alarm clock. Medications go undistributed.
“It's not only inconsistency in supervision. I mean, I think it's risen to the point where it's gross negligence,” she said.
Federal court monitors agreed. “DFPS assigned untrained and contract staff members as caregivers in CWOP settings and did not provide them with consistent and clear instruction to inform how staff members were expected to care for children,” said a January federal court filing in the long-running litigation.
The state said it has taken action to address some of these concerns.
“As of September 1, 2023, only those caseworkers with a caseload of 17 or fewer children are eligible to work Child Watch. In addition, caseworkers are limited to 16 overtime hours of Child Watch per week,” wrote attorney Allyson Ho in a federal court filing.
While the move undoubtedly mitigates some risk, the court and experts still consider CWOP to likely be “an unreasonable risk,” as federal monitors wrote earlier this year.
But there is no other body for judges to remove them through, and no other place to take these kids. Some judges have attempted to court-order the department into taking better care of a child — attempting to treat the state as they would a parent. It hasn’t worked.
Alvarez has ordered that J.D. have multiple lawyers (five) in addition to CWOP youth, often as a matter of course, being scheduled for hearing every week. This means every week, lawyers and staff from the state are brought in to defend why the youth still doesn’t have a placement. The judge is known for pugilistic tone and dogged questions.
These court orders inevitably end up in appeals court, with DFPS arguing that the judicial branch cannot administer the executive branch. DFPS often prevails.
Several of Alvarez’s court orders in the J.D. case have previously gone to or are currently before the 4th Court of Appeals.
Who is in CWOP
Children in CWOP are some of the most vulnerable and most challenging cases, according to state data. In general, they are older, have been jarringly moved between more placements in the foster care system, have been subject to serious trauma, and/or have many needs.
Federal court monitors said almost all of the 465 kids they evaluated this year showed physical aggression and had a mental health diagnosis. Three quarters of them had an intellectual or physical disability. Two-thirds of them had been involved in the juvenile justice system.
J.D. has been in multiple placements this year, including treatment placements as well as a trial placement with an aunt in another state. He ran or was returned from all of them. According to testimony at one hearing, he was removed from one for issues around sexual aggression.
In short, they can be tough characters to care for, and the ad hoc nature puts overworked staff in danger as well.
“I personally think the state is asking too much of its employees,” said Meredith Chacon, an attorney who represents multiple CWOP children. “Caseworkers have been assaulted. Caseworkers have been accused of things right or wrong. It just puts them in a horrible spot, and they have no choice because they're the boots on the ground that are being told 'this is what you have to do.' ”
The problem persists despite years of federal litigation, investments, and attempts.
CWOP origins
For most of the last decade staff at DFPS have been short placements, especially for kids with high needs. News reports highlighted how the state stowed children in state office buildings with CPS staff. The practice was outlawed in 2021 but has merely changed to a more expensive and possibly less safe practice of using hotels. The state has paid more than $7 million on hotel rooms since that practice began.
DFPS leaders have argued that the shortage was caused by the federal court actions, which forced them to raise standards and hold accountable failing operations. They have said in the past they lost 1,000 beds overnight.
“While the District Court has explained its remedies are designed to improve care and safety for children, providers nevertheless say they are afraid of heightened monitoring and what it means,” wrote Jamie Masters, former commissioner of DFPS, in a 2021 letter to legislators.
Reform advocates have argued the placements closed were unsuitable, with many having multiple serious infractions over years.
One major problem with CWOP, data showed, was that youth were far more likely to end up back in CWOP after one experience — 40% according to one court filing. A child like J.D. tasting a complete lack of structure, guidance, and accountability may not want to go back to the constraints of a “normal” foster home.
The incidence of running away from CWOP is much higher than a foster home, group home or residential treatment center. One in five youth entered CWOP from a runaway event, according to an expert panel in January 2022.
In most cases, it isn’t possible to detain a runaway for being a runaway in a secure facility.
Running away is a “status offense,” which means they can’t be held for it.
“When the standard for emergency detention is if you are a danger to yourself or others to be put in a mental hospital, then if I have a 14-year-old child who insists that what she wants to do is run off with 40-year old men and exchange sex for methamphetamines, why is she not a danger to herself? Why are we told we cannot hold her and save her life?” Chacon asked.
It wasn’t a hypothetical question. One 16-year-old female CWOP client of hers was on the run for weeks. Law enforcement, including the U.S. Marshals, searched for her. When they did find her, she was court-ordered to get a medical evaluation. She was hooked on methamphetamines and had many indicators of a sex trafficking victim.
“She just walked right past us. And it was just gut wrenching because she went right down the street and was headed straight back to the bus stop,” she said.
Ultimately the incarceration or detention of youth for runaway behaviors is unlawful (in many cases) and unpopular with social scientists. In Texas, which has state hospitals with months of backlog, a juvenile justice system under federal investigation for among other things abuse allegations, and a private provider system often excludes the most vulnerable, change would be needed.
Back to court
CWOP is one of the reasons the state of Texas is in federal court this week trying to avoid contempt fines in the long-running foster litigation over its foster care system. The state has argued in the past that it has made several changes to increase capacity and completed recommendations from an expert panel. More recently, the outside attorney for the state said the CWOP kids made up less than 1% of the 8,000 children under the lawsuit.
J.D. is still one of those youths. Six months after the June hearing — he is also now 17 — his impermanent status with CWOP and his bouts of running away have left him in jeopardy of not being eligible for services when he turns 18.
That means the unmoored existence he has lived since becoming a ward of the state could become permanent — lacking treatment, housing and support.
“That is what we are working so hard to prevent,” Alvarez said. “There are more days than not it feels like our work is in vain.”
DFPS declined TPR's request for comment.
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