The Austin Chronicle

Exoneration for Child Counselor Targeted by Strayhorn

By Jordan Smith, August 22, 2008, News

On Wednesday, Aug. 13, exactly four years after officials with the Texas Department of Family and Protective Services raided the primitive therapeutic camp in Smithville known as Woodside Trails and removed nearly 40 boys, camp administrator Betty Lou "Bebe" Gaines settled a federal lawsuit against nine DFPS employees. In her suit, Gaines charged the officials had deprived her of due process rights in branding her neglectful of her wards, closing the camp, and effectively ending her career.

After two days of testimony, and less than two hours before the case was to go to a jury in the federal district court of Judge James Nowlin, lawyers for the DFPS defendants (sued individually, as required under federal law), including former agency Commissioner Thomas Chapman, reached a settlement with Gaines, awarding her $300,000 – the maximum indemnity for state employees in a multiple-defendant case (any greater award would, in essence, require an action of the Legislature). The state also agreed to reinstate Gaines' license as a child-care administrator, removing any trace of the past investigations that resulted in her legal action.

Gaines' trouble with DFPS began in Sep­tem­ber 2003, shortly after then-Comptroller Carole Keeton Strayhorn announced she would be commencing an investigation into the Texas foster care system. By spring 2004, when Strayhorn released her report "Forgot­ten Children" on the system overseen by DFPS, Woodside Trails and Gaines, who had worked at the successful camp for some 20 years, were suddenly in Strayhorn's cross­hairs. Stray­horn's high-profile crusade against the foster care system had inevitable political overtones – that standing in support of defenseless wards of the state could bolster her gubernatorial ambitions (Strayhorn lost her bid for governor in 2006, placing third in a four-way race). Her report and subsequent headline campaign specifically targeted the kind of rustic setting offered by just a handful of therapeutic providers, and in particular she lashed out at Woodside Trails.

The camp provided relationship-based counseling to mostly adolescent boys at risk of spending their lives in prison: They had been severely abused, and many had already been identified as sexual predators. They were "some of the most disturbed kids I'd ever seen," testified psychologist David Poole, who has worked as a contractor for Child Protective Services since 1975 and had done evaluations of several Woodside children. Children were referred to Woodside mainly by CPS or by county juvenile probation offices, although a few were placed at the camp by their families.

Unique to Woodside's approach was that the kids lived outside all year in permanent camping structures, with slab floors and stretched tarp roofs. The "primitive" nature of the facility was purposeful, Gaines testified last week. "They are responsible for their quality of life in their social group," she said, "so they have a lot of say in increasing their quality of life." Strayhorn disagreed; she railed against the therapeutic camps, including Woodside Trails: "I saw filthy living conditions ... in so-called outdoor camps where children must sleep in sleeping bags – no walls, no fans, no heat – for months and months, and in many cases, year after year," she announced in an April 6, 2004, press release. "That's not care. That's cruelty."

Strayhorn (obviously not the outdoorsy type) called for the closure of all such facilities. Woodside Trails, and Gaines personally, became the subject of a string of DFPS investigations (a number of them, somewhere around 40, prompted by specious complaints allegedly called into the DFPS abuse hotline by employees of Strayhorn's office). Among the complaints were two alleging that a former employee of Woodside Trails had sexually assaulted a teen living there and that Gaines had been "neglectful" in protecting that child. As it turns out, the child – a seriously abused boy who had a history of lying and of being a sexual predator – recanted his allegation, claiming he'd made it in an attempt to get preferential treatment at the facility to which he'd been transferred in June 2004. Although there was ample evidence that no sexual assault had occurred (including that the teen recanted his allegation) and that both the former employee and Gaines had done nothing wrong, DFPS investigators returned findings that there was "reason to believe" the allegations (equivalent to sustaining the allegations). On Aug. 25, 2004, they sent a letter to Gaines informing her that she was considered an "immediate threat" to children and could no longer be near them.

The first Gaines ever knew that she was being considered a possible "perpetrator" of abuse was when she received the Aug. 25 letter. None of the DFPS investigators bothered to tell her she was the subject of an investigation (as is required by DFPS policy, Gaines' lawyer Susan Henricks pointed out in court). Gaines was never even formally interviewed about the allegations against her until Aug. 26, the day after the "reason to believe" letter was delivered. Moreover, in concluding that the teen had been abused, DFPS investigator Darla Jean Shaw did not mention any of the teen's conduct that might contradict the agency's finding that abuse had occurred. For example, Shaw did not note that he'd been assigned to an extreme intervention known as the "permission to lie" program, reserved for children who lie so frequently that nothing they said could be believed without independent corroboration, or that he'd previously threatened to falsely accuse the same camp counselor. That information, Shaw told the court last week, wasn't important enough to report. It would be impossible to "include every tiny piece of information," she testified.

Gaines sought administrative review of the decision – a supposedly independent assessment of the investigation, performed by a DFPS staff member outside the original investigatory chain-of-command; the reviewer upheld the agency's findings. Gaines appealed, requesting a due process hearing from the State Office of Admin­i­strative Hearings; after a hearing in 2006, she was exonerated. The administrative hearings judges overturned the DFPS decisions related both to Gaines' "reason to believe" finding for neglectful supervision and the alleged sexual assault by a former counselor, which the judges concluded DFPS had not proven, not even by just a "preponderance of the evidence."

Despite her exoneration, Gaines has been unable to find work in her chosen profession, one for which witnesses testified she had a clear gift. Gaines was "ravenously protective of the kids and their well-being," Poole testified.

The aggressiveness and shortsightedness of the DFPS investigations shocked Gaines, who said they were unlike any dealings she'd had with the agency in nearly 30 years of working with children in Texas. She suspects that the exaggerated scrutiny applied to Wood­side Trails was generated by the pressure Strayhorn and her staff had placed on the perennially beleaguered DFPS. In August 2006, Gaines filed suit against Strayhorn, two of her staff members, and the nine DFPS staffers. Ultimately, Strayhorn and the other comptroller office defendants were dismissed from the suit (the court found that Gaines' claim that they violated her constitutional rights was legally insufficient) – but not before Strayhorn got a polite but savage scouring from federal Magistrate Judge Andrew Austin. "It is worth noting here that the Court is not saying that its eyebrows have not been raised by the treatment of [Gaines] in this case," Austin wrote in a report to U.S. Dis­trict Judge Lee Yeakel. "No doubt much of [Strayhorn and the office's employees] behavior in this case ... is untoward and petty. No doubt much of the behavior is less than one would expect from an elected official or her staff."

Four years and several court appearances later, Gaines has been cleared – though it is unclear how soon she'll be ready to resume counseling at-risk youth. (In addition to the monetary award and the expunging of her DFPS record, Gaines scored a win for many Texas youth: a pledge from the DFPS that it will comply fully with the federal law guaranteeing freedom of religious practice for American Indians, a law the department did not appear to be honoring, at least not when it came to the kids in the care of Woodside Trails.) Gaines may return to the Woodside Trails property to start a facility for former foster kids, who at 18 age out of the state system, to help them learn skills that will positively impact their adult lives. Or she may try to help the system from within, by applying for the job of DFPS commissioner. "Somebody's got to get [in] there and make some changes," Gaines said. "They can't keep doing things the wrong way."

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