please the court and if they're not entitled to injunctive relief because they failed to meet the heavy burden of the elements of constitutional culpability causation and class wide harm first as to culpability the district court contravene supreme court and circuit precedent by effectively constitutional izing best practices and by substituting a negligent standard for the stringent due process liability standard of deliberate indifference to a substantial risk of serious harm second as to causation the district court improperly presumed the plaintiffs harms are directly caused by defendants policies as opposed to the horrific abuse and neglect the plaintiff suffered before entering foster care and third the district court or honestly found class wide harm by embracing a risk of being at risk theory that the supreme court has rejected by ignoring evidence the texas generally satisfies the federal government's demanding standards for safety and permanency in foster care and b evidence and thank you start if i may with the largest issue in the case that of case worker case loads it is hardly conscience shocking for a state not to adopt caseworker caseload caps based on  aspirational best practice standards that other states do not follow the federal government does not require and even the district court recognized are not constitutional minima the it strikes me that those case loads are sort of like our caseload there are cases that are easy to determine in cases that are more difficult setting and setting a flat number just doesn't doesn't seem to make any sense as far as i can see that's exactly right and not only are the cases different  the case workers themselves have some have more experience some have less some can take on have your lives and some may have for example a case load of very basic needs children who don't need as much attention can take a much heavier caseload  than a caseworker who has a caseload consisting of iron needs children doesn't it doesn't it also matter in terms of texas has some geographic areas where just to travel distances would indicate that it would make a large number of case loads more difficult to handle but if they're all in a local area they might be a lot easier that is also true and that is the very reason that the legislature pushed the f p s number of years ago to adopt the what we call the down there if you look at the numbers what happens is they they live maybe a year i have a percentage of all of the first year and it's constant turnover in fact the people that are in permanent management will only see a case worker a couple of times a year at best and then you have the see why the c u they see you category which is a filling in for case workers just to go in and check in to see that the child is still there so you have children going through that be one of the large difficulties here and to be clear we're not saying that case loads are not a problem we're not saying that some caseworkers are not overloaded they are we have worked very hard to bring case worker case loads down and we recognize the very problems you're on right what have they don bring down the caseload they've hired additional case workers they've also had a number of steps that have been implemented to retain case workers because as you point out the problem is not just that you know we can hire case workers but if we don't keep them that's also a problem with the is entitled to two very much the same standard but brit child who is not there voluntarily becomes the custodian of the state because you've terminated their print were right then you owe that constitutional duty and that so our question how anyone can say they were deliberately indifferent to the case law issue all states struggle with with cases like it's an all state struggle with turn over a case that it's a very difficult job to do and it's emotionally draining job a lot of people do system like you have twenty three thousand kids but in it you have as they go from that from the temporary to the permanent that reduces but then when they come out at age eighteen you have like forty seven percent of the females come out of their present in the first year and a higher percentage of those come right back into the system again let me be clear about that the forty seven percent statistic you are is not forty seven percent of that of people it is that it's the when you look at the age operation is forty seven percent of of children of females who are aging out but plaintiffs did not say that texas is out of line with other states in terms of the number of people who age out all states have that problem and you may have a correlation in terms of system who are the children of people who have come through the system every state your honor i would say has that problem then let's not let's talk about this one for a moment they are they do you agree with that there certainly neglect the people we're describing and have been for years the children have been for years in your system and they have been seen by caseworkers only a handful of times so if a self perpetuating it's happening while it's there in your system very i disagree that the evidence in this case shows that these children are being seen by caseworkers only a handful of times and if well completely dickensian system you know where nothing was was going right in caseworkers were so overwhelmed they couldn't do anything how is it possible that texas would be satisfying the federal government's rigorous standards ambitious national standards  for maltreatment and and permits in foster care and i know they claim that the statistics for the maltreatment they say well you know we've been deployed those somehow that's not true but even if it were that doesn't explain how we're doing so well on the permanent keep track of child on child abuse we do keep track of it but not in the centralized method that don't support it i'm sorry reported it is captured in this way judge clement when we're looking at when our c c l is going out to investigate  child of reported abuse in a licensed facility what they're looking to do is to see as has the facility done something wrong and so they're looking to see did obviously did one of the caregivers themselves where they abusing the child tha reported were they negligent in their supervision of the children in their care because that's the only way if if something happened were they weren't negligent then that does that may not get recorded in terms of abuse neglect statistics but it does get recorded in the files of the individual children both in their common application in the files of the c p a that the child placing agency maintains but it doesn't reflect anything against that institution if there was not if it was if there was not a finding made of neglectful supervision that is there not be a finding of neglectful supervision if you're having child on child it would be is within the facility because there are the way that that would happen for example sometimes children have reported to be sexually aggressive or otherwise require heightened supervision contractually that the caregiver is required to for example if they have a lack of impulse control or something like that in their can correct when they're to be known problem if there's a known problem and it's in the record then and then if something happens at night for example then they would be neglectful for having failed to monitor the child but if there's no indication of that in the record then effectively you're just holding the facility strictly liable just because kids don't fortunately the reality is sometimes do engaging in some problematic conduct particularly if they have been themselves they call it sexualized by by prior abuse and that's an unfortunate reality but again that happens in every state that's a problem and i don't think that there's a practical solution to that i mean that is reported suggested well everyone should have their own individual his placement in a single home but again you can't you can't make people be foster parents and you can't how do these numbers ever going to work out if you if you're hiring their caseworkers but you're also taking in more foster children how is that ever going to be resolved and i know you've gotten millions of dollars from the state legislature and and that's a problem that texas has been dealing with this is that we do go out we work hard to solve the problem we we ask for more money from the legislature they give us money when they have it we have great programs to try to retain more caseworkers but then what more kids come into the system and the reality is with the demographics texas has one of the highest child poverty rates in the country we have one and we are responsible for most of the child growth in the country over the last decade and so basically the question is remember is the delivering a different standard or it's not are there problems that were twenty five to thirty percent of the of the are foster system go back into extended foster care so you don't have a problem with your honor the fact that we make extended foster care available to them after eighteen i think is a good thing i mean we wish that not every child needed to do that but the fact that we're not just cutting everyone loose at age eighteen as the plan you suggest we have a variety of programs including extended foster care we have a program of sort of supervised independent living that that foster children can participate in after they've technically aged out of the system and other things that they can do up to age twenty one and sometimes beyond precisely because we do care deeply about these children we recognize that the long state children the children have had the most difficulty in obtaining permanency through satisfactory placements they do need help and we do our very best to give them that help but the question is is our actions so arbitrary to satisfy that really tough stringent subsume due process standard and i just don't think how anyone can look at these defendants for example that the main defended in this case at the time of trial was former commissioner speech and everybody the plaintiffs of which is the district court said mr species a wonderful man is due he's dedicated his entire career professional career to protecting children he's done everything that anybody possibly could and you're not going to read anything bad about what he's done but that's what in the end the district court had to say well i guess somebody had to be deliberately different it must be him but the district where there's the same time recognize the commissioner's speech and his staff have the best intentions of of running an effective foster care system of the district court did make some specific comments claiming that the state was unresponsive in cooperating you probably need to respond to those but i would love to respond to that judgment with what the district court said in its final injunction let me take a step back and it's twenty fifteen order the district court ordered texas to establish an implement policies and procedures to address these problems and we tried to appeal that water and this court said no that's really not on the table yet because it's the special masters who are going to advise the district court in addition court's going to tell you what this policies and procedures are everyone agreed about that and then in his final order the district court came back and said well we're being recalcitrant because since twenty fifteen we have not been working to establish those policies and procedures but everyone told us we had to wait for the special masters to tell us what they were through the orders of the district court and so i just don't see  special district court said on the record in its order we were cooperating wonderfully with the special masters they said the parties that means us have made tremendous accomplishments in what we are working to do in terms of improving the system and then we're surprised to find out when the anticipated remedies meaning you weren't doing what the district court hadn't yet already told you to do which i'm not aware of any case all that says we have to comply with the orders that are not effective yet and even the plaintiffs themselves recognize that the only order that was effective prior to the final order was not awake night supervision order a very narrow order that this court had confirmed in its i believe the twenty fifty will be trying to take that appeal and the court said that's the only thing that's really live at that point and we said ok we're on caseworkers a lot of it a big chunk of it in both this session and in the last session obtain from the legislature large amounts of money to hire additional caseworkers and they have done that they have brought the case loads down and they  below twenty children per case worker since the time of trial in the last year or two i think they've been in one thousand or eighteen and really i mean when when the district court is saying i miss you know the question yes is it a money b five million dollars this was the time of trial if you requested that in the twenty thirteen legislative session you got another twenty five million i believe in the next session say i'm out of time if i may answer your question to do what we have to to upgrade the impacts system and to improve the way it's able to store information and allow caseworkers to enter it more easily and reduce paperwork and those kind of things so yes improvements are being made on that front right thank you mr hughes you say time for abo thank you i mean if he's a court trial the then commissioner of the department emitted quote if you don't define measure and evaluate a problem you can't fix here one of the core issues is is that the state knows the chronic safety risks in its system yet consistently his chosen not even to measure them and has never fix them for example just climate you see you ask about child on childhood abuse the state refuses to track child on child abuse so as of today the state could not tell you which placements have more incidents of child child and child abuse which areas of the state they simply refused to do that thus the trial judge in the trial  twenty fourteen repeatedly urged the state why don't you track this and here we are four years later they still don't track it judging about him you are asked about case loads one of the one of the main problems that the state has who has had this for decades and what the state said and what that evidence was a trial is that the state had refused to do a workload study for case workers so that they knew how many children they could handle now after the verdict for the liability in twenty fifteen and twenty sixteen the state actually did a case worker workload study and it's and the trial court and mention this in her remedy order what the state found is that  caseworkers can handle physically handle up to fourteen children on average across the system so that's all that was a remedy phase piece of evidence but it is absolutely consistent with what the the liability phase of this case showed is that caseworkers are chronically overburdened in the state so judgment to get to ask to get to one of the points that you made about caseload being different across for different children this case was not about individual children or individual placements this was a case about a system the texas child welfare system and we on behalf of the plaintiff's children fall though this court certification order and both in  sixteen order on denying the step and those two cases from anderson griffith of the fist circuit said that foster children have the constitutional right to personal security the state has taken them into custody and these children have a constitutional right for the state to make sure they have personal security and reasonably safe living conditions that's exactly the legal standard that the trial court followed she repeated the court repeated it many times in her li is the conner be case in massachusetts is so similar and in that case the district court and the court in the first circuit denied denied relief but in fact in connor b they had caseload standards and caseload caps so what the district court in this case has ordered is in fact something that a that when you have a chronically overburdened understaffed system can make sense now what the district or didn't do is it didn't rush to judgment on remedy this was a two phase process we had a two week forty witness trial on liability and then the district court we believe using classic restraint by a district court waded and invited more and appointed to special masters and invited more input by experts and by the state itself and one of the things some of that one of the things that we believe the district or pointed out in bothered the district court below was that when the court was looking at remedies and invited the state to provide input on how best do we fix what is an admitted problem overworked caseworkers understaffed system has been around for a tour at least twenty years judging about them and the state  provided data and the district court lauded the state for cooperate in providing data but the state refused to do over and over again in the district or points out her order is provide solutions for a potential enemy in the in the district or said this is without prejudice we're not saying you're waving anything but we're trying to find the best remedy for caseworkers so what the district court one of the solution in his case were when you're sending case loads that's just that's just overly mechanistic it seems to me that the focus should be on the on the results not on particular numbers i'm thinking of by analogy cases that we have on prison medical care where the standard is also deliberate indifference standard isn't how many patients a doctor supposed to see the question is whether whether the the inmates are getting adequate medical care at the end of the of the process so when when the district court sets  these these limits on the placement or raise in the foster group homes and sets a maximum number of case files per per worker it may be that looks good on paper but it it it has little to do as far as i can see with the a question highlights that we have to the court has two issues here liability which we proved through strong showing the deprivation an unsafe system unsafe system that was known and cause and the state was consciously indifferent and the appropriate remedy and that is subject to a matter of discretion for the district judge the district judge heard input from lots of sources including outside experts shall recognize child welfare experts and looked at national standards and coming up with these with these with the remedy the district  did not make up these remedies herself she did itself the district court looked at what other states and what national states look to and judge higginbotham yes the remedy has to tie to the constitutional violation or not these are  workers were the responsible adult to keep track of foster children and keep them safe they were called critical and crucial the bedrock the lifeline the district court said caseworkers and this is a poor analogy but in a prison system what keeps the prisoner safe from each other are the guards and if you have inadequate staffing like in brown versus platter you will have disarray and and and physical harm another one in a prison in the foster care system what keeps the children sa undisputed testimony or the case with the primary case where you're from but what was safe use of other inmates and what else safe from physical sexual and psychological harm so in the foster care system how do we know what inspection system joad up seventy four seventy five percent error rate with regard to the reporting of you so my question is what do we know about just what that doesn't mean that there is that me of seventy four percent too low are an accurate to two things jurors are no one every witness in the case testified that having caseworkers that are chronically overburdened puts children at risk safety risk and in fact the texas appleseed two thousand and ten study of the system which is an independent study said almost every stakeholder interviewed for that study this is two thousand and ten just a few years where the trial said that caseworkers in the texas system are so overworked they can't do their jobs their primary job is to keep the children safe on the investigation judge him bottom what the what the evidence was a trial is there was a seventy five percent error rate alone that would be concerning these are supposed to investigate reports of abuse physical sexual abuse or negligent care by caregivers but what the district court found is they underreported one of the a very very quickly the state has  a has a system of investigators that are supposed to check every report of abuse a child a teacher somebody reports abuse of a of foster child the state also has a group within itself that does audits of those investigations and what we found was shortly before trial just a couple years before trial that audit group looked at a section all of the physical abuse investigations that resulted in a certain finding of unable to determine and and  the state's own section said sixty five percent of those were wrong that means some should not have been unable to determine some should have been that abuse actually occurred and some should have been that reviews did not occur so they fundamentally sixty five percent wrong this is internally within the state the state then did another audit of the same information and more information and this second audit was done by the head of this investigative unit at the state again all this is within the state not something that the plainest it the second audit turned out that the error rate was actually higher it was seventy five percent because they actually looked at both physical abuse for investigations sexual abuse investigation and negligent care investigation so chicken bottom what it means is if you if you don't have a system in its foster care system in which reports of abuse physical or sexual abuse which is the safety issue that we're talking about here are not properly investigated you cannot then take remedial action you may and and in this case that's exactly what happened eleven children actually they determined in god it had been sexual had been physically abused and nothing was done about it but the air in the first and then the second one eat had been physically or sexually abused and nothing was done about it and what the district court was perhaps most upset with which reflects directly to conscious and difference deliberate indifference is that with these findings of this tremendously inaccurate investigation process the same investigators using the same flawed process were coming to a category of unable to determine what the state  was even worse because the state then didn't look at the ninety percent of determinations that they do which rules out abuse so one of the state's own expert witnesses said a trial ninety percent ruling out and ninety percent of the reports is very troubling to me she said i think it raised questions with me other have other witnesses said where is the state rules out ninety percent in texas other states typically maybe sixty to seventy percent reports all this terrible bad behavior by an institution you know it's going to happen somebody's going to close down the foster home the institution so all of a sudden everybody's going to be reported for bad work and they're going to be shut down so they're not going to be places to send these foster children people who don't want to be caseworkers i don't blame them so if that is that what you think is happening it's clear that we we  defects in the system are interrelated they're not separate effects because what you just highlighted to comment is that one of the things the state does when they do find a violation in a in a in a facility is it almost this was a trial almost never enforces it almost never penalizes the facility so what we found is six thousand violations right before trial and one of the of those two thousand and thirteen right before trial six thousand violations the state issue d only twelve corrective actions that's something like putting someone on probation twelve out of six thousand and one more decisive penalty like a revocation of a license six thousand and the reason you just come in as you just said is the state has such a defective placement already so many gaps in its placement that we believe although they did not and there's no they did not admit this at trial that we believe one of the problems is the state simply is saying we can't properly enforce our find is a violation because we then made loose facilities and what then the the sunset commission again not in the litigation outside the litigation shortly before the trial but the sense that commission found that sort of conduct promotes more violations and that there was a seventy nine percent i believe the number seventy nine percent recidivism rate for residential facilities in the state because they perceive that they're not going to be held accountable all of these defects respectfully come together in any kind of a perfect storm of constitutional harm for these children because the state won by by knowing the problem but refusing to measure it and never fixing it is did these children go into a system we're not talking about homes specific homes for specific children the children as a whole are going into a system that is unsafe for them because there's not proper investigations there's no follow up to in adequate staffing the case completely overburdened and there's huge gaps in the placements because the state is not in fact the state has never even studied one of the piece of trial never the state has never even studied what placements the children need the then commissioner said if you don't measure you can't fix and what the state knows that they have a huge placement problem and yet they've never done a study a placement needs study the district or pointed this out to her liability fine in the remedy finding she's she can order it but the placement study tells you across the state what where do we need facilities and by not studying we believe that's substantial proof of conscious indifference if you consciously willfully turned a blind eye to known chronic problems over decades that's conscious and different this case we proved we believe we presented this case to the district court and the discord adjusted in the traditional three step approach deprivation was a deprivation of a constitutional harm and there's only one constant there's only one set of constitutional rights personal security and recently safe living conditions number two was there culpability deliberate indifference this record didn't adopt a lower cope ability standard of departure from professional standards the difficult looked at that more stringent standard of deliberate indifference and found frankly sadly substantial evidence of that and then in a second step went to remedy and in the remedy phase just a court decided to liability only on the trial record in the remedy phase as i mentioned earlier the district court inviting more information some pieces of the information with the district court got on remedy were very telling in the meantime after the verdict and for the remedy order between two thousand and fifteen and two thousand and eighteen the state's own top officials were telling the legislature we have a crisis a crisis in foster care that has been at least a decade in the making the then commissioner of the new commissioner said he was shocked one of the standards is just shock the conscience the new commissioner said he was numbered in our state by child abuse what the district court then did on the remedy phase is is we believe a very prudent step of bringing and rather than try to figure something out are they are as is every single one of them necessary in order to achieve constitutional standards a district court faced with a system in such chronic with such chronic problems has a difficult choice the state is not saying it's too expensive today the state has in fact the state is promoting that they have many hundreds of millions of more dollars which the district court said is may well pay for all of the roadies with money just seems to me that the district courts that  the injunction is really unnecessarily cluttered with things that aren't necessary which makes it a lot harder to focus on the things that are at least from our perspective i'll give you any an extreme example which is the requirement of driver's education for for kids that are aging out they may be a perfectly good best practice but how can that possible be mixed in with with with requirements  of of constitutional standard here not suggesting that the and it's it wasn't the district court's burden to order remedies that were constitutionally required the district court is entitled under this court's pre present once it finds a constitutional harm which he did in the remedy phase to order remedies to address the harm that may be beyond what the constitution specifically requires that the driver's education judge smith is really related to this issue and we and to take him on some pointed out of the children aging out thirteen to fourteen hundred children every year age out of the system this is part of that these are children that were part of this class eight out of the system and are sent into the world with the discord found with the evidence was they are completely unprepared to to function on their own in fact with what the state does is these children of that one of the studies was these children are the children that have been in and you're exactly right just with it is a concern but the children are being put at risk the state is putting the children at risk by sending them into the world completely unprepared without even the ability to drive they have no driver's license they have no functional skills they don't know how to take care of themselves and so what the the children that age out of the texas foster care system are at much higher rates of alcoholism drug abuse incarceration unwanted early pregnancy is judging by them said forty nine percent of the young girls these are girls eighteen years old they're pregnant before their nineteenth birthday seventy percent of the children of these young girls that are pregnant before the one nine hundred first they go back into foster care and so it's just with it would be nice in an ideal world to think that in texas the children come out with an education in fact they don't they're moved around so often that they don't have any sort of an education and these children simply what the district court found is the children that age out here you're you're overstating it and you don't need to overstate it maybe to prevail on some of your points it is not true that they get no education and it's not true that they age out totally unprepared you know that that's an overstatement it may be that the state hasn't done everything that it should or could have done under difficult circumstances but it just seems to me you your your your credibility is high here but you undermine it by making absolutist statements like that that you know the record doesn't support judge smith i don't i do not mean to overstate the record there were there were witnesses at the that are in fact that the head executive at the state in charge of making sure that caseworkers have adequate or not excessive caseload she said i don't even keep track of what professional standards are around the country i don't know that much about that she said she we've dealt with investigations and enforcing violations the should this should sounds like it should there should be an easy remedy if you just get enough investigators and have a process that they do it right and so that their investigations are reliable and then you enforce your findings of violations so you don't encourage repeat violations that would true that we believe that we tremendously help improve the safety of the system we are you you mentioned the foster group homes you're talking about foster group homes with how  children this is a this is a you need to texas institution and what they basically did is take foster family homes that can have up to six children combined i logical or adoptive children with foster children no more than six with a with a foster family parent or two and they supersized and in texas they said because of the lack of placements again these are interrelated issues because of a lack of place and say said we're going to make these group homes we're going to call these foster group homes but they didn't add to the rules or regulations or at any significant material training or any other of the safeguards that whoop homes have show shots have you have about how many children in a follow up to the twelve with this cab the of the state say you have to count the biological or adoptive children in the family as well and the state doesn't and so and and the evidence at trial was so that you have foster group homes that can have twelve foster children and any number of adoptive or biological children so the same one to two parents depending on how many are in the in the foster group home are literally watching over an indeterminate number of children we did one of the things the state is taking us to task force we didn't do a case three which is a generic stool to find out what the problems are what we did is and narrow investigative data reads in on for example of lost or group homes we had our expert look at all of the data for all the children at foster group homes for a three year period two thousand and twelve thirteen fourteen and she looked and our expert looked at all of the investigative reports for foster group homes in two thousand and twelve so it wasn't self selected and what she found were that these are investigative reports of abuse in foster group homes some seventy different cases what she found time and again is the state either ruled out any abuse mistakenly iranian sleep or that the that the of abuse physical or sexual abuse that occurred could have been prevented or mitigated by just simple precautions that a group home would have had so i don't mean to overstate over a focus on foster group homes but there are a dangerous place for these children and the district court that was where the discords first order was  get to get back to your question to check in bottom mancino midsized very important the placement or a is a difficult problem we knowledge that it is not impossible other states have had have have taken steps to fix it the first step in this case that we think is an easy steps of for the state to to do is to do a study of what the children's placement needs are but again it's as the commissioner said if you don't measure it you can't fix it and so one run i don't know off the top my head but i can certainly get that information for you and i may ask you if my council knows that i'll ask if they can research that while i'm up here and hopefully get units are right now if we can't we can try some of that for you like you would know i apologize the a couple points about foster group homes one is the foster group home study that was rich or did she admitted this under cross examination she looked at her foster home study was based on a group of foster homes that were investigated for abuse and neglect and when she was confronted with the fact that this was a biased study for answer was literally it wasn't meant to be unbiased that's what she said and she said well it was  confirm my preexisting conceptions about foster group homes or to her testimony and this was pure idiocy dixit they don't like the line drawing that the legislature has done in terms of the size of the group home they say for example that they want been not being attended a couple points on the edge of chicago first of all the district court's comparison on that she looked at one other state and said that our rate of sibling separation was higher than any single other states and if you look at the rate of siblings separated in texas i'm sorry what is it is in texas i think it is the rate was in the can we have this in our brief eighty one percent i believe at least two siblings are kept together out of a group and i think a sixty four percent of also brings are kept together in texas out of in sixty four percent of sibling groups also brings are kept together to present art and that begs the question of so your question was why is that happening and plaintiffs in the plainest in the district court can tell you because they didn't look at any individual circumstance and it was undisputed at trial by both the plaintiffs experts and the district court they recognize that there are some that there are instances in which it is in the child's best interest to be placed out of their home country surely but then the question is what is which you would separate them if there are such a turkey that's now suspect they maybe and again our policy is to keep them together whenever it's possible and if they want to complain i understand that the policy but what i'm suggesting to you and according to th at record that policy is failing miserably but the district court doesn't know whether it's failing miserably if it has no idea whether the sibling separations are occurring for good reasons or not for good reasons and there was no you don't have the data because the because the plaintiffs failed to examine any individual cases if they had looked if they had done a case study and and wanted to criticize for example and say well we're going to take a random representative sample and look at these children to see why they were separated from their siblings and then criticize and say we can see that  eight percent there wasn't a good reason that would be fine that's what that's what plaintiffs have done in all of these other class action cases in connor b in cassy in baby neal kenny a marital all these other cases a random representative sample of children's case files were they did a case reading on and then they were able to look and make determinations of are these problems being caused by the policy or is it something else because everyone acknowledges it's really hard to run a foster care system you're dealing with and the council mentioned commissioner whitman's a comment that you know our caseworkers are up against that the enemy of these these mounting problems i mean there's a lot of drug use out there and these children are coming into our care they're they're worse off than they used to be texas has a very what's called a very low removal rate and so chilled a community our system they're in worse shape compared to kids in other systems it's it's a hard it's a hard thing to do i would point out it in conner be a council mention that he said their w casting kind of a it's because in conor b the state that was the result of a collective bargaining agreement it wasn't something that was judicially imposed on the state the state had to decide to do it for itself that's fine if the state wants to impose keystone caps great but our state and the vast majority of others don't think it's a great idea and the due process clause doesn't require it and i would say it's undisputed if you look at the data about the massachusetts foster care system in common be they were they were at the absolute bottom of the barrel in just about every statistic texas to look at our  yeah we're not the best maybe but we do pretty well and if we're satisfying the federal government with their demanding national standards for performance it shouldn't be the case that the district court could come along and just say what i choose to disagree with that i choose do even if the federal government's happy with you i'm going to say your system is terrible and these attentional mr hitter says that and in texas these these children age out with with absolutely no preparation for independent living as adults aged eighteen and over what what what does the record reflect on that in your view what the record reflects your honor is that all children upon any age sixteen that are in the p m c receive these preparation for adult living i don't know why that is either we offer code without without a caseworker that some of their given counseling they don't know what's good they are the children have a strong incentive we have to offer them financial incentives if they complete the program to help them transition to adult living they can get  waivers if they want to go to college we incur absolutely encourage to children to take these preparation for the living classes and unfortunately some children the reality is don't make great decisions and it's hard to tell a teenager if they really don't want to do some hard to make completely free tuition at any state or community supported school community community college state university whatever that's exactly right two percent of take it up  about i had to spend the money in front and set of picking up these kids coming back into the criminal justice system and feeding back into the same system but a substantial percentage of your intake come from are just  genetic flow flow right back you know now that that's the overall picture that is presented here as legislation appears to be the one some money out about to their to their credit of the real problem here i judging about now i agree with you about these you know these circular systems in the problem but everybody's trying to deal with this in trying to do it in different ways and we get criticized the district court criticize us for trying to be innovative for example with our foster care redesign the district court said well that's not a program other states miller in some of the other experts on the players side who work in kentucky in tennessee if you look at the c s of our numbers they said we did all these wonderful things and i agree i'm sure they made great improvements in the systems but look at the data the federal government is measuring law and that's in the record for the caps on the caseload because it would a lemonade a considerable number of students who would not be quote they would not have the opportunity to have a caseworker part of it is that if you can't control the number of kids that are coming to the system to draw a hard cap it's pretty in practical because what are you going to do are you going to just tell them to say no to that kid who needs who needs care the other part of his we just think it's not a very looking at  caps just a rigid caseworker cap or the number of kids for caseworkers a very crude metric and it doesn't take into account individual abilities of the caseworker it doesn't take into account the situation of the kids that may have if you're in t m c the temperate conservatorship with their families  we don't make it one hundred percent of the time but i think the record says it's about time and we do use the i c u workers to help us accomplish that requirement but again there's nothing wrong with that policy choice it's either case worker or an i  know if the if the federal government is happy with what we're doing we don't think it should be up to the district i see i see you if i found or stand the record is far different from a caseworker and they've got a feel and do that not a caseworker that's just somebody covering to be sure for people again the problem if you have anecdotal testimony of one person saying well they only do this i mean to invalidate the entire system based on a little bit of anecdotal testimony when they failed to do a case reed of