AUSTIN (KXAN) — Less children in Texas are spending nights in unregulated places while waiting for foster placement, according to a new report. Still, a federal judge

The report marks the latest released by the court monitors, who were appointed to track the progress made by the Texas Department of Family and Protective Services during a years-long federal lawsuit over the treatment of children in the agency’s care. The monitors’ most recent update noted other improvements made in the last year, including more manageable caseloads for DFPS employees and more accurate investigations.

It still highlights some shortcomings of the system, such as an increase in wait times for people trying to report abuse or neglect to DFPS and the number of children who were unaware of how to report abuse or neglect.

The monitors’ update comes ahead of a hearing on Friday in U.S. District Judge Janis Jack’s courtroom. In 2015, Judge Jack ruled that Texas had violated the constitutional rights of foster children by placing them in unsafe homes and residential treatment facilities. She issued a list of reforms, and since then, has found the state in contempt multiple times for not meeting those ordered reforms.

By 2021, the system faced more criticism after it was discovered hundreds of children had spent time sleeping in state office buildings, hotels and other unregulated places because DFPS had no available beds in foster homes or treatment facilities to place them — also known as Children Without Placement, or CWOP.

According to the monitors’ most recent update, an average of 60 children were without placement on a given night from January 1, 2022 through November 30, 2022. On June 20 that year, 81 children were without placement — the maximum this year.

That is down from July to December 2021, when the average on a given night was 86 children. However, some nights saw far more children without placements — even after lawmakers prohibited overnight stays in DFPS offices in June of that year.

DFPS has called CWOP the “last resort” but cited a shortage of beds at foster providers — particularly for kids with complex medical or behavioral needs — as the reason for having to utilize it. A DFPS report released in September 2021 blamed the pandemic, stricter regulations and heightened monitoring under the federal lawsuit as the reason providers stopped offering placements, or even shut their doors entirely. The same report claimed some children had been offered placements but either refused treatment or were placed on waitlists.

At a tense hearing that same month, the judge told former DFPS Commissioner Jamie Masters, “I’ll remind you, the state has closed these facilities because they were not safe…I’ve watched your PR campaign that the court, COVID and, most egregiously, these children in your care are to blame.”

Governor Greg Abbott appointed new leadership at DFPS shortly after. Stephanie Muth assumed the role of Commissioner this year, while Anne Heiligenstein returned as a Senior Adviser at the agency.

Muth appeared before Judge Jack at the most recent hearing, where the judge echoed familiar concerns about CWOP — focusing on two cases, in particular, where the kids ran away from an unregulated placement and ultimately died in shootings. She reminded the agency that any unlicensed placement leaves the child at risk.

“These children are dying,” the judge said. “They are getting raped, and they are running away.”

While the judge commended the agency for eliminating “egregious group homes” in the years since her ruling, she continued to scold them for failing to come up with safe, alternative placements for every child. She compared Texas’ situation to the response in Oklahoma, which she said was more prepared to handle the closure of some troubled group homes and treatment facilities in its state.

Erica Bañuelos, a director for Child Protective Services, told the judge right now 99.7% of children are in licensed placements, but explained that the agency is “pouring lots of resources” into the .3% of children without placement. The judge responded by grilling agency officials over how much funding and resources they have requested from the legislature, so far.

In their most recent report, the monitors also flagged that around half of children in the system were not aware of the hotline available for reporting abuse, the Foster Care Bill of Rights and the Foster Care Ombudsman. In her original ruling, Judge Jack ordered that, within 30 days, caseworkers provide children with the appropriate point of contact for reporting issues of abuse or neglect.

Judge Jack told agency officials years have passed since she issued these specific orders: “Somebody is not getting the urgency of this.”

Muth said they are about roll out more capacity, specifically for high risk children without placement.

“I see a sense of urgency,” Muth told the judge of her agency’s work on the CWOP problem. “It’s just the systemic issues that take a little bit longer to address.”

The judge noted that at an upcoming February hearing, she would considering holding the agency in contempt of court or calling for sanctions for some of the specific shortcomings to her orders. By June, she noted that she would consider holding the agency in contempt if any child is still without placement.

According to the judge, the court will still monitor the state for three years, even after it has met all of her orders.

“We need to get a move on. This is getting critical,” she said. “I just don’t understand while we are still here… There’s really no excuse for this.”

KXAN’s Avery Travis will be following Friday’s hearing and will update this article with more information.