New Mexico failed to meet deadlines on commitments in child welfare suit, filings say

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Aug. 31—Carmen S., 17, has moved at least 30 times in the roughly seven years since the state took custody of her away from her parents.

Throughout September 2023, she slept in a New Mexico Children, Youth and Families Department office visitation room. Caseworkers fed her reheated frozen food from a juvenile delinquency center, monitored her when she showered, and provided her little to no mental health treatment.

That's according to recent arbitration filings in the landmark settlement agreement in the Kevin S. lawsuit, which in 2020 laid out several goals for reform in the state's child welfare system. Years later, plaintiffs in the suit are arguing the state has continued to fail in meeting its commitments, resulting in cases like Carmen's.

"The harm is not hypothetical," attorneys wrote in an opening brief filed in July. "While Defendants may argue that fulfilling these legal obligations is hard, this is the responsibility the State assumes when it separates children from families."

The plaintiffs say the state has failed to make good on several key commitments in the settlement agreement and in a subsequent corrective action plan that laid out new requirements to help get the state back on track.

Among those are promises to bolster the ranks of foster families in the state, improve the caseloads of CYFD workers and complete mandatory wellness checks of children taken into state custody within 30 days.

CYFD Cabinet Secretary Teresa Casados has previously told lawmakers she was comfortable going back to arbitration, because doing so would allow the state to highlight all the progress it has made.

"All of the efforts in the Kevin S. litigation really go to good-faith efforts towards reaching the things that we agreed to," she said in an interview. "And I don't think anybody can say that the department hasn't made an effort to get there."

A hearing in the arbitration proceedings is roughly set for early November.

One of the top plaintiffs' arguments is that the state has failed to make progress in CYFD staffing and caseloads.

According to a February report by the suit's co-neutrals — who act as unbiased monitors of the state's progress — 34% of caseworkers had caseloads above the standard of their field, and 19% had caseloads above 200% of the standard.

The hiring freeze exacerbated CYFD's existing staffing issues and trickled down to workers' caseloads, said attorney Therese Yanan of Native American Disability Law Center, which is a party to the case.

"You can't just go out and hire somebody and they start the next day. And so the whole delay, again, just has an additional ripple effect," Yanan said.

Casados pushed back on the idea the hiring freeze worsened staffing problems.

"It really gave us the ability to look at Protective Services at a whole, and really figure out how we needed to streamline that process so that we could have individuals really focus on one area as opposed to several areas," she said.

In its opening brief, the state also argued that public characterizations of CYFD as being "broken," a "failure" and in "chaos" hinder the department's ability to hire qualified and motivated workers.

"The core problem is that people are hesitant to grow a career in an organization that is constantly maligned and denigrated in the media," attorneys for the state wrote.

The plaintiffs say the state has also failed to keep a commitment laid out in the corrective action plan for all young people to receive wellness checks within 30 days of entering CYFD custody by Jan. 1 of this year.

Bette Fleishman, who is one of the original plaintiffs on the case and still represents Kevin S., said those checks serve as an early line of defense in determining a child's basic needs.

As an example, she pointed to a child she represented years ago who, by all appearances, was deaf — only for his foster parents to find weeks later that his ears were just clogged by earwax.

"If you don't do this within the first 30 days, you're not going to know what's going on. They could end up being worse than they were in their other home," she said.

In a recent legislative hearing, the state Health Care Authority said those checks were now being completed. But that wasn't happening for many children last year, co-neutrals found in a February memo.

Casados said the state is making "every effort that we can" to schedule those wellness checks within 30 days of taking children into custody, but pointed to challenges of getting doctors' appointments in any capacity.

"Today, if I tried to call a doctor to get a visit just for my regular annual checkup, I am pretty certain they are not going to schedule me within the next 30 days," she said.

The state has also not kept commitments for recruiting new foster families, plaintiffs argue, citing co-neutrals' findings in 2022 that the state had made no progress in increasing foster care homes since 2021.

Over the last year, the number of relative and non-relative foster families has increased slightly, according to CYFD data. In July 2023, there were 941 families; in July of this year there were 1,062.

To help remedy the problem, the state agreed to immediately assign one placement worker in each of New Mexico's high-needs counties to focus on recruiting foster families.

But those placement workers weren't assigned until later, the state wrote in a March letter, and plaintiffs argue the lack of those placement staff "has inhibited children's placement in stable, supportive family environments."

It's not yet clear what the outcome of arbitration will be.

But Tara Ford, one of the plaintiff's attorneys litigating the case, said in an interview going back to arbitration came down to an ethical obligation.

"When it became clear that the state had also failed to comply with the corrective action plan ... the plaintiffs really felt an ethical obligation to initiate arbitration to make sure that the state would make progress on the reform that it's promised," Ford said.

Esteban Candelaria is a corps member with Report for America, a national service program that places journalists into local newsrooms. He covers child welfare and the state Children, Youth and Families Department. Learn more about Report for America at reportforamerica.org.

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