Judge’s dissent casts needed light on Texas’ foster care system

He saw a message from a state appellate court.

After 15 years as a Houston defense attorney who handles hard-to-prove appeals, he didn’t get his hopes up.

Then he saw something he’d never seen before.

“I literally ran down the stairs and grabbed my wife and said, ‘You’re not going to freaking believe this. I got a dissent!’ ” Brown said. “Of course, my sweet wife, she patted me on the head like ‘that’s nice, honey.’ ”

Brown hadn’t won. The majority of a three-judge panel in the Court of Appeals for the First District of Texas had affirmed a lower court ruling sending his client to prison for 10 years. But one justice, Terry Jennings, had written an eloquent dissenting opinion.

Normally, that sort of development doesn’t make the local newspaper.

But Jennings’ dissent is relevant not just because it’s rare. The jurist, elected in 2000, looked at the broader picture.

He saw a young woman whose experiences growing up in foster care appeared to have left her without the skills and support to make it in this world. He saw a court system that didn’t take those experiences into account. He saw injustice. And he said so.

It’s an opinion that should make all of us think. Lawmakers made a decent effort last session to reform foster care in Texas. Yet the ramifications of a longbroken system, which has been found unconstitutional, play out every day.

Brown’s client, Nadia Williams, was charged in 2014 with felony assault of a public servant for striking a security guard with her hand. She pleaded guilty, and the trial court placed her on community supervision for three years.

But prosecutors eventually moved to revoke the agreement, alleging numerous violations by

Williams, including failing to report to her community supervision officer, to pay fines and to attend an anger management class, according to court records. The records also indicate Williams tested positive at least once for marijuana.

The trial court found some of the allegations true. Williams was sentenced to 10 years in prison, the maximum allowed by law.

At issue in her appeal is whether an earlier attorney failed to present “critical” evidence to the judge considering her punishment. Namely, a letter Williams had sent to the court detailing her struggles.

In the letter, she described raising her two children as a single mother, her battle with depression after being diagnosed with breast cancer, and most importantly, the fact that she had been raised in foster care and therefore had virtually no support system.

She pleaded for an opportunity to be better than her mother and for a chance at life with her kids. The state, in its brief, did not dispute the assertions in the letter. Finds ‘support system’

At a hearing, Williams testified as her only witness. She explained that she had struggled to report to her supervision officer because of her health problems and those of her daughter, who had undergone surgery. The only evidence presented as to why she shouldn’t go to prison was that she had a newfound “support system,” a godmother who had begun to help her with the children, so she could go to work.

The letter. The foster care. They never came up.

In his opinion, Jennings argued those facts could have changed the outcome for Williams, who had no previous criminal convictions.

“Sadly, in seeking ‘the higher end’ of the punishment range in this case, the State not only made it virtually impossible for appellant to ever overcome her disadvantages related to growing up in Texas’ foster care system, but it has also essentially condemned her two children to the same awful fate,” Jennings wrote.

Jennings cited numerous newspaper and law review articles to describe the “extraordinary social and psychological problems” that children suffer from having been placed in a foster care system where they often come out worse off than they went in.

He quoted research showing that youths who “age out” of foster care, meaning they were never adopted, are more likely than peers to suffer homelessness, poverty and unemployment, to be involved in criminal activity or be unemployed.

In this context, it appears Williams was doing reasonably well. In a letter she wrote to the lower court judge in August, she said she was “really good at doing hair” and had operated a shop for four months. In jail, she said, she’d been reading and trying to focus on making something of herself.

She begged for a reduction of her 10-year sentence. “I am not a bad person,” she wrote. “I am asking you to be reasonable with me and don’t take me from my kids.” ‘A powerful message’

Williams’ fate now is grim, but not final. She and Brown haven’t yet discussed another appeal. Regardless, he said, Jennings’ opinion took courage, time and research. It shows he paid attention. It sends a powerful message.

“He’s saying foster care people are different, and they should be treated differently,” Brown said.

Jennings told me he couldn’t comment on the facts of the case, which technically is still pending before his court. But he said he hoped his dissent would encourage the state to study how former foster care children are faring in the criminal justice system. He suggested their circumstances may be worthy of special consideration, such as military personnel receive in veterans court.

“Part of the role of the criminal justice system is not just to punish people, but to rehabilitate people,” Jennings said. “How can you rehabilitate people if you’re the state of Texas and you’re part of the problem?”

Couldn’t have said it better myself.