Judge with 'highly antagonistic demeanor' must be removed from foster care case, 5th Circuit says
A federal appeals court has removed a federal judge from foster care litigation against the state of Texas, citing her “highly antagonistic demeanor” against the defendants during a December 2023 contempt hearing. (Image from Shutterstock)
A federal appeals court has removed a federal judge from foster care litigation against the state of Texas, citing her “highly antagonistic demeanor” against the defendants during a December 2023 contempt hearing.
Senior U.S. District Judge Janis Graham Jack of the Southern District of Texas was ordered removed in an Oct. 11 opinion by the 5th U.S. Circuit Court of Appeals at New Orleans, report Bloomberg Law, the Texas Tribune and Texas Public Radio.
Jack has become “too personally involved in the proceedings,” the appeals court said.
The 5th Circuit also reversed fines of $100,000 per day that Jack had imposed April 15, 2024, for the state’s alleged failure to implement two remedial orders.
The orders required investigation of allegations of child abuse and neglect in a timely manner for children placed in “permanent managing conservatorship,” which happens when the state cannot find adoptive homes or cannot reunify the children with parents within specified time limits.
The appeals court had stayed the daily fines. Had they been implemented, Texas “would be on the hook for $7.2 million” between the April order and a June compliance hearing, the appeals court said in a footnote.
The 5th Circuit saw the state’s compliance differently than Jack, saying Texas officials have made “significant remedial efforts” in the past several years. The state has already spent $150 million trying to comply with Jack’s remedial decrees and another $60 million on monitors.
As evidence of its compliance, the state said it was hiring more staff members, training them better and implementing policies to hold providers accountable for poor care.
Jack first ruled in 2015 for the plaintiffs, who had challenged the constitutionality of Texas’ foster care system. She awarded “expansive” injunctive relief, the appeals court said.
The 5th Circuit invalidated many aspects of the initial injunction in 2018 and did so in two more opinions after Jack made changes on remand. In its last decision, the 5th Circuit ordered Jack to implement the injunction without further changes, apart from the ones ordered by the 5th Circuit.
Jack has not yet “officially modified” the injunction, the 5th Circuit said. And even though the appeals court “firmly ordered” Jack not to modify the decree, she “imposed extraneous orders” on the state to provide information on COVID-19 vaccine refusals, to expand mental health care and to produce documents not related to the remedial orders, the appeals court said.
“Not only has the district court clearly indicated an intent to continue oversight well into the future,” the 5th Circuit said, “this contempt order seems a harbinger of even more drastic district court micromanagement.”
Jack has “indicated the strong possibility” that she will issue further contempt orders or even place the foster care system in receivership, according to the appeals court.
“As a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies,” the 5th Circuit said. “Nor, under the federalist structure created by the Constitution, is it appropriate for federal court intervention to thwart the state’s self-management, where the state is taking strides to eliminate the abuses that led to the original decree.”
The 5th Circuit said the December hearing happened after Jack “urged and instigated” the plaintiffs for several months to seek contempt. During the hearing, Jack “repeatedly questioned the defendants’ unwillingness to exceed the requirements of the remedial decree,” suggesting that she had “substantial difficulty” moving past previously invalidated remedial orders, the appeals courts said.
“It doesn’t hurt to go over and above” the remedial orders, Jack said during the hearing.
At another point, Jack interrupted a witness to complain that “the state contracts with these people that are not doing their job, and they still keep contracting with them.”
When the witness asked Jack to clarify her question, she replied, “I don’t know if there’s a question. It was more of an irritable rant.”
During testimony by another witness, Jack said, “I don’t know how the state sleeps at night with this. I really don’t.”
Jack’s statements at the contempt hearing and at other times show that she “exhibits a sustained pattern, over the course of months and numerous hearings, of disrespect for the defendants and their counsel but no such attitude toward the plaintiffs’ counsel,” the 5th Circuit said. “The judge’s demeanor exhibits a ‘high degree of antagonism,’ calling into doubt at least ‘the appearance of fairness’ for the state defendants.”
Graham was appointed by former President Bill Clinton. The author of the 5th Circuit panel decision, Judge Edith H. Jones, is an appointee of former President Ronald Reagan.
In a statement published by the Texas Tribune, the state’s heath commission and social services agency said they are pleased that the 5th Circuit recognized their significant efforts.
“We remain committed and are grateful to Gov. Greg Abbott and the Texas legislature for their continued support in furthering the well-being of our most vulnerable Texans,” the statement said.
Paul Yetter, a lawyer with Yetter Coleman, one of the attorneys for foster care children, said in a statement the decision was “a sad day for Texas children,” Bloomberg Law reports.
“For over a decade, Judge Jack pushed the state to fix its broken system,” Yetter said. “She deserves a medal for what she’s done. We will keep fighting to ensure these children are safe.”
The case is M.D. v. Abbott.
