State faces new deadlines to fulfill the terms of key child welfare settlement

This is the fourth story in a series.

The Kevin S. lawsuit , originally brought by 14 foster children against the state of New Mexico, has been settled for almost five years. But even with corrective plans, change has stalled out.

An arbitrator last month found the state failed to comply with the original agreement. Now it faces new deadlines to live up to its promises from the settlement.

Many of the original 14 foster children have aged out of the system, and some have moved on to the Fostering Connections program, which extends supports up to 26 years old.

Attorney Therese Yanan said the plaintiffs were aware that coming forward would probably not help their situations, but they wanted to lift up other foster kids who would come after them.

“They were willing to be front and center, so that other kids would benefit from the results of this case and they could make it better so other kids weren’t treated the way they were treated,” said Yanan.

The lawyers and the state created a Corrective Action Plan – or CAP – in 2023 to work on meeting the settlement’s original targets. The focus was on several areas. Those included recruitment and retention of caseworkers to ease caseloads and building out family-based placements. It also included bringing home foster youth who were sent out of state, improving data reporting, and working with local communities to fill service gaps.

The plan was set to expire in January of 2024. But that deadline came and went.

The co-neutrals are experts in child welfare reform and oversee the progress of the settlement. They had alarming findings, even reporting that New Mexico’s Child Welfare System was in a state of chaos. Co-counsel for the plaintiffs, Sara Crecca, says there have never been more kids sleeping in offices of the Children, Youth and Families Department or CYFD.

“We got licensed foster parents who don’t feel supported, who feel retaliated against for advocating for kids,” said Crecca.

As the state’s progress lagged, the plaintiffs’ team filed for arbitration, alleging the state breached its obligations under the corrective action plan, and now were seeking specific performance targets.

The class of the settlement would also continue to shift, including new foster youth to continue to represent the need for reform, like Carmen S.

According to court filings, Carmen is 17 years old and loves to express herself through art. She’s been under the state’s care for over a decade and during this time she’s been assigned 13 different permanency planning workers. That has led to unstable placements, sleeping in offices, educational disruptions that left her many years behind in school, and a lack of services for a diagnosed mental health history and developmental needs. Crecca says Carmen is furious with these outcomes.

“Carmen two days ago was just in tears in court and really voiced, ‘this is so unfair. Let me go. Being in this system is not improving my life. Leave me alone’,” said Crecca of her client.

For eight long days last November, the plaintiffs’ team and the state came together to discuss the failures. There were almost 100 exhibits and 20 witnesses. The arbitrator, attorney Charles Pfeiffer, released his decision in January, finding that failure to comply with the CAP was evidence of a failure to meet Kevin S. obligations. He was blunt in his assessment, writing that, “children in the custody of CYFD are subject to irreparable harm”.

George Davis is former chief psychiatrist for CYFD, and is now a member of the Kevin S. plaintiffs’ team. He said the arbitrator was attentive and cautious.

“It gave me a lot of trust that he was going to look past distractions to the real issues,” said Davis.

The arbitrator found that while negotiating the CAP, the state was in a “hiring freeze” making it impossible to meet its promises, leaving caseloads climbing. He also cited the state’s failure to contract with a private provider to aid in building up foster homes.

Attorney Tara Ford is a member of the plaintiffs’ team. She said she appreciated his focus on funding frontline staff and his call for the government to assign staff to high-need counties to recruit more foster parents.

“He talks about how not a single person asked that it is a good idea for young people to be in offices and he is saying the government can no longer rely on taxing already overworked frontline staff,” said Ford. “And then of course making sure children get timely medical checks when they come into custody.

Current CYFD Secretary Teresa Casados said the decision from the arbitrator was a fair assessment.

“All along we’ve agreed those are important measures we need to ensure that we're doing those things at the department. but I think the frustration for me is it’s not an overnight fix. When I came on board a little over a year ago it really was to look at the foundation of the department and determine how are we delivering those services and do we have structurally set up,” explained Casados. “So, we’re in a really good position right now to really start moving in that direction.”.

Davis said the state's presentation during the arbitration process felt dismissive of the connections between the requirements of the settlement and struggles with funding, overburdened caseworkers, and not recruiting enough foster parents.

“If you defend a system that is clearly not working, then that in itself is dismissive of the needs of the kids that are supposed to be cared for,” Davis said.

In the arbitrator's opinion, the only step forward to see Kevin S. through to the end is for the Legislature to fund that change. He added that ordinary incremental measures may have worked in the past for other departments, but it won’t fix the challenges faced by overworked CYFD staff navigating administrative burdens.

Casados said there’s a distrust from lawmakers because in the past not all CYFD appropriations were spent.

“Some of it is just funding that’s not in the areas where we need it to be to really right-size the agency. And I know it’s hard to go in and say, ‘Trust us to be able to understand what we need to do and try and get it done,’ because they’ve seen that not happen for so many years. And so I understand their frustration,” Casados said. “But we really need to be able to direct where that funding goes right now.”

Bette Fleishman, attorney for one of the kids represented in the settlement, said there has been a mass exodus of professionals at the agency and she has urged many lawmakers to consider institutional memory.

“Knowing how things work, it’s just not there and it’s easy unfortunately to mismanage money. I don’t think it’s intentional, absolutely not. And I think, yes they need the money and there needs to be some accountability,” Fleishman said.

Tara Ford said the benefit of the arbitration decision is that there are clear and specific deadlines that hold the state accountable to the arbitrator.

“There is a process that allows a court to be involved to enforce an arbitrator’s order,” Ford explained. “So the plaintiffs would evaluate and make strategic decisions based on the situation as it unfolds, but we are committed to enforcing the settlement and now enforcing the arbitrator’s order.”

Casados is hopeful that collaboration among the executive, the Legislature, and even the courts can change the narrative around child welfare in New Mexico.

“If all of us could really mean it when we say, ‘We want the same thing’, and sit down at a table and figure out how we get there, I think New Mexico could have the best child welfare system in the nation,” Casados said.

Crecca said this settlement has the opportunity to become groundbreaking.

“If we implement it, it will be the first trauma-informed system of care really developed between advocates and the state. And it’s such a missed opportunity,” said Crecca.

Both CYFD and the Health Care Authority have upcoming deadlines beginning next week and running through the end of April to deliver status reports to the experts overseeing the progress of the implementation of the settlement. There must be a report to the arbitrator at the end of the legislative session on efforts to calculate how much is necessary to fund the child welfare workforce in New Mexico.

KUNM will continue to follow this story through the legislative session.