Youth who sued New Mexico are still waiting for changes called for in settlement

Yesterday we heard about the origins of the Children, Youth, and Families Department, and the state’s decades of struggle to provide care for New Mexico’s most vulnerable children. CYFD improved for a time under a consent decree. But advocates say since then those gains have gone away. KUNM’s Taylor Velazquez picks up the story in the second part of a series.

This is the second story in a series looking at child welfare in New Mexico.

Diana D. was 14 when she entered foster care in 2016. She enjoyed watching movies, playing the clarinet, and reading mystery books. But when she went into foster care, she struggled to receive access to continuous education and health care.

Diana became one of 14 plaintiffs in the Kevin S. lawsuit filed in 2018 against the Children, Youth and Families Department (CYFD) and what was then the Human Services Department. It sought essential care, stability, treatment, and support for New Mexico’s foster children.

At one point, Diana was prescribed at least nine different psychiatric medications in just one year. She’s Navajo, and none of her placements have been with a Navajo foster family or other Native American care provider, in violation of the federal Indian Child Welfare Act.

Therese Yanan, an attorney for the Kevin S. kids, said the state needs to do better.

“Working with New Mexico’s tribes, nations, and pueblos, to ensure that those children are getting services that they need, both the general services that all kids need but more specifically culturally appropriate services to maintain their ties with their communities,” Yanan said.

She said that because these services are not available, the state puts children in higher levels of care, like residential treatment centers. Yanan said that’s ineffective and expensive.

The issues raised in Kevin S. include a lack of placements for foster children – the same issue raised in a class action lawsuit against the state from 1980.

That earlier suit resulted in a federal consent decree. State Rep. Eleanor Chávez, D-Albuquerque, said even as the state moved forward on child welfare under that decree, CYFD slipped backwards on compliance.

“I’ve heard comments made that one management person said ‘Well we’re out from under the consent decree now, we don’t have to do those things anymore’. So I think the department saw it as a burden to have to comply with all the things the consent decree brought with it,” Chávez said.

The state continued to see horrific child abuse and murders, including 9-year-old Omaree Varela in 2013, and 10-year-old Victora Martens in 2016. Both families had numerous contacts with law enforcement or CYFD before their deaths.

Also in 2013, then-Gov. Susana Martinez froze Medicaid funding for 15 behavioral health agencies, alleging potential fraud for overbilling.

All the  agencies were eventually cleared of any wrongdoing, but the damage was done, said former State Sen. Jerry Ortiz y Pino.

“The behavioral health system was pretty much destroyed, which really hurt the children’s programs a lot. There was no place to send kids,” Ortiz y Pino said.

He added most residential treatment centers and group homes, which house kids with nowhere else to go, closed down.

“I don’t think the department has ever fully recovered from that,” said Ortiz y Pino.

That upheaval, and the COVID pandemic, left only two residential treatment centers operating in New Mexico today and just one psychiatric hospital that treats children.

Staffing turnover is a constant problem at CYFD as well. Current CYFD Secretary Teresa Casados blamed some of that on Medicaid managed care organizations or MCOs, which provide trained social workers with other opportunities.

“We’re competing with hospitals, with MCOs, with schools for that same population of workers,” said Casados.

The majority of states nationwide use the MCO structure. But Ortiz y Pino explained it’s had a detrimental effect here because many experienced social workers who were burned out at CYFD left to work with the organizations. They were paid better and had less pressure in decision making.

“They’re bottoming out,” he said of CYFD. “They can’t hire enough good people and keep them long enough.”

Ortiz y Pino added this has left less-experienced professionals to make tough decisions, ultimately, and likely unconsciously, creating instability for foster youth to find permanent homes.

“Everytime you move a child, the child doesn’t blame the parents that may have been abusive or the foster family that already had four kids and just couldn’t put up with another one; they blame themselves,” he said. “‘There’s something wrong with me that makes it impossible for me to live with other people in this home. I’m unlovable’. And so, you just exacerbate the problem with that kind of a pattern.”

Diana’s lawyers said before she entered into CYFD care she was a vibrant teen who liked to crack jokes, but now she’s mostly uncommunicative and blames herself because she and her siblings entered into foster care.

Ortiz y Pino added there’s a lack of both experienced social workers and foster parents. He attributes this to neither group being paid enough.

“They can’t hold onto enough workers long enough to change the image of the department and you can’t attract enough foster families and support them well enough. Then you got this catastrophe that we have going on,” Ortiz y Pino explained.

Yanan said there are good people working in local CYFD offices.

“They are really trying. It's not an individual person in the office who can fix this because it is a system-wide issue” said Yanan.

Former chief psychiatrist for CYFD George Davis said New Mexico has also struggled to keep up with advancements in psychiatric care.

“These children aren’t bad. They don’t have bad genes. They don’t have psychiatric diseases,” David said. “They’re trauma victims.”

Davis said this contradicted the conventional standard at the time of CYFD’s creation in 1992 of medicating youth, like foster children.

Davis added that CYFD is also subject to political whims. Each election cycle, new governors can appoint new cabinet secretaries leading to difficulty maintaining any momentum towards positive change.

“You lose institutional memory, you lose agenda, you lose so much everytime that cycle grinds again,” Davis said.

Over the past 13 years, CYFD has seen five cabinet secretaries. Their experiences have ranged from social work to tourism.

Current secretary Teresa Casados has a background in leadership and business, previously serving as Gov. Michelle Lujan Grisham’s chief operating officer. She disagreed that cabinet secretary positions are subject to politics and pointed to her professional experience with the transition team when Lujan Grisham took office.

“Some of the cabinet people that we interviewed, actually many of them, the governor didn’t even know prior to them joining her administration. We really were looking for the right people to do the job,” Casados said.

Casasdos said she was tapped for her experience in managing change.

“When I came into the department it really was to operationalize and organize the department, to look at it structurally and determine what needed to change in order to have a structure that could meet the needs of the families that we serve,” Casados explained.

But Ortiz y Pino said this job requires knowledge of the field and a special skill set.

“The current secretary is working hard, she is working her tail off. But she’s learning as she’s going. She’s trying to build the airplane as it’s flying through the air,” said Ortiz.

The 1980 class action suit accused the state of failing to develop permanent plans for placing foster children. Fast forward 45 years and children in CYFD custody still regularly sleep in office buildings and youth homeless shelters because of the lack of appropriate placements and foster parents.

Davis said if the state provided full supports to help keep families together, it would know which kids should be in state custody.

“There’s a certain percentage of families that cannot be fixed, they cannot be helped. Few people admit that but it’s true,” Davis said. “And then there’s kids that would be better off if they have never seen CYFD at all.”

In 2020, the Kevin S. plaintiffs reached a settlement agreement where the state was given a series of targets to meet, including more caseworkers and more behavioral health services.

But Davis said, just like the children in state care, those goals have also languished.

“The department and the state has a history of starting things and not finishing. The point was to create a system but they had a hard time making it into a system,” Davis said.

Attorney Tara Ford is on the plaintiff’s counsel team for the suit and helped form the agreement. She said it’s a blueprint, regardless of changes in government.

She added that while the state has historically struggled with funding, it currently has record revenues.

“New Mexico has money right now and so the fact that we haven’t been able to put the resources to bear to lift this system up is really tragic,” Ford said.

The Kevin S. suit went back to arbitration last year. A recent report by the mediator in that arbitration had harsh words for CYFD, finding that children in department custody are subject to quote “irreparable harm.”

Davis said even after all these years, there’s still a pressing need to create and sustain adequate services and staffing, appropriate foster placements, and a foundation in understanding the needs of children.

For the children in the care of New Mexico, the stakes couldn’t be higher.