NEW MEXICO
Kevin S. settlement was a blueprint to change child welfare but progress has stalled
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This is the third story in a series on child welfare in New Mexico.
Attorney Therese Yannan had represented children in state custody for many years before she sued New Mexico in 2018. She was seeing a pattern of resources just not being available.
“A court can’t order services that don’t exist. It was impossible to get appropriate services,” said Yanan, who works for the Native American Disability Law Center.
Attorneys Bette Fleishman and Sara Crecca encountered the same obstacles. So the three of them joined forces to go to court. Fleishman is executive director of Pegasus Legal Services For Children, which is a plaintiff along with Yanan’s organization. Crecca is her co-counsel.
Together they joined 14 foster children in the class action suit seeking to improve the child welfare system. The suit was named for one of the children, Kevin S.
“We needed to do something bigger to change the situation. Because kids were getting harmed then and they're getting harmed now,” said Fleishman.
Crecca said the faults in the system have been well-documented for decades. But the Kevin S. team found three significant failures.
There was no strong system to ensure that temporary placements or foster homes were stable. That meant children were sleeping in state office buildings.
Also, the state was failing to meet the medical and mental health needs of children. And there was a complete failure to implement any sort of trauma-informed practices for those in state care.
“Letting them rot in the office, just sitting there, no school, no attempt to engage them, no placement. That all felt kind of new. The outcomes we were seeing were getting worse, more dangerous for kids, violating all kinds of state and federal laws that existed,” Crecca said.
The 14 kids, who were in foster care at the time, agreed to become main plaintiffs and were chosen to represent the diversity of the state whether it was race, sexual orientation, or even geography. Together they would also represent the many more kids experiencing the same inhumane conditions.
Crecca said that what drove a lot of the suit was one question: Where are the foster parents?
“What we were doing to these kids to re-traumatize them was just astounding. They would come in even more traumatized than previously,” said Crecca.
Current Cabinet Secretary for the Children, Youth and Families Department, Teresa Casados, explained staff turnover is a huge problem nationwide in child welfare.
“We can’t do the work that’s expected without the people to do it. I can’t lower caseloads if I don’t have trained people to give the cases to,” Casados said. “I can’t recruit more foster families if I don’t have workers to go out there and do the recruitment. So, when they’re stretched too thin, foster parents don’t feel supported.”
Casados said another contributing factor to retention issues is people don’t realize how difficult this work is for caseworkers and social workers alike, especially with the lack of support from outside the agency.
“They’re doing this work because their heart tells them to do this work. Not because of the paycheck that they get, I guarantee that,” she said. “Can you imagine being there and something horrific happens? You’re with that family when that tragedy happens. And then you read the next day about how horrible you are and how you dropped the ball and how you didn’t do your job.”
One way CYFD has tried to address the staffing shortage was to lower requirements and focus on recruiting caseworkers who may have a degree in social work, psychology, or education, but are not licensed.
Right now, out of the 250 employees with a degree in social work at CYFD, only 129 are licensed.
Fleishman said the other issue was New Mexico sending many foster kids to out-of-state facilities. She said she was able to visit every single facility that the kids she represented had been placed in, but a lot of attorneys can’t necessarily do that.
“They're just throwing these kids out of state and kind of dumping them there,” Fleishman said. “There’s no way for the parents to visit in a meaningful way. They did not check the facility before the kids were sent there. They didn’t even make sure they were even licensed or had any write-ups.”
Native children are four times more likely to be placed in foster care than their white peers, according to a national study, which cited issues with systematic bias.
This led Gov. Michelle Lujhan Grisham in 2022 to sign a law that codifies the federal Indian Child Welfare Act (ICWA). That law also would amend the New Mexico’s Children Code to include specific provisions for Native children in custody like affirming a child’s tribal affiliation, working with families to reunite children with their tribe, and providing tribal courts the option to assume jurisdiction.
Yanan said under the Indian Child Welfare Act, there’s an imperative when helping Native children.
“Maintain placement with Native families so that they maintain those ties is essential,” said Yanan.
The Kevin S. parties reached a settlement in 2020, and it was a blueprint, Crecca said. It was the first step in building a foundation before jumping into the harder problem solving.
“We felt so incredible about this agreement, about what was in store for our clients,” Crecca said.
The settlement outlined several goals: creating a trauma-informed system, keeping foster children connected to their own culture and families, meeting the requirements of the federal Indian Child Welfare Act, and delivering timely access to medical appointments.
Yanan said not having these resources isolates foster children from their families and communities.
“Foster homes across the board are a huge issue and remain a huge issue,” Yanan said. “And so these kids get sent to these facilities and service providers because they don’t have home settings as in foster care for these kids and they don’t have community-based services that these children need.”
But for Casados, it has been frustrating stepping into implementation of the agreement because of the established timelines for reaching certain goals and targets.
“There’s just not enough time to do that and time is what is really what is needed to fix this system,” Casados said.
Casados was first appointed by Gov. Lujan Grisham as interim cabinet secretary in April of 2023. A few months later, the governor appointed her the permanent secretary. Lujan Grisham said, “Teresa Casados has left an indelible mark at CYFD over just a few months…she has already delivered results, and I have no doubt the momentum will continue from here”.
Since the 2020 settlement, however, Crecca said the excitement has stalled, leading to new dangerous outcomes for foster youth.
“Immediately this administration turned its back on its agreement and has done that time and time again,” said Crecca.
The settlement agreement named two neutral experts to oversee implementation of the outlined goals.
In updates from 2022 and 2023, they pointed to ‘dangerous’ conditions including high caseloads, inadequate numbers of family-based placements for foster children and problems with CYFD’s on-call shift system not having appropriately trained staff.
“Every year their report tells us what our clients can tell you, which is not only has it not changed, it’s gotten worse. One of their warning shots to the defendants was that your system is in a state of chaos” Crecca said.
The experts also noted problems with children accessing the ‘well-child checkups’ that are mandated by law to happen within 30 days of a child entering into state custody.
Casados said one problem is the state’s health care worker shortage and that CYFD is working alongside the Healthcare Authority to bring in out-of-state organizations to provide services.
“I know as a normal citizen, if I were to call right now to my physician and say, ‘I need to come in for my sore throat’, they probably would say, ‘we can see you in a couple of weeks’. And so, we face the same situation when we try to get appointments for these kids,” Casados said. “Providers are in short supply and they have other clients that they are taking care of and sometimes those appointments can’t be booked within 30 days.”
The Healthcare Authority, formerly the Human Services Department, declined to comment.
When it comes to the office stays, Casados said there are numerous foster families available, but they lack the training to deal with very challenging cases.
“What do we need? Is it just more families? And the answer is no. It’s more appropriate families” said Casados.
She said children have been coming into the system with complex problems that demand intensive support, and that means office stays to supervise them.
“It’s less than 1% of the population that we serve, it’s a small number,” said Casados, “but even one child that doesn’t have appropriate placement is not ideal for us; it’s not how we want to run our system.”
In 2023, the state and the plaintiffs’ teams came together to create what’s called a Corrective Action Plan to help the state get back on track.
Crecca said that some of the kids represented in the lawsuit have aged out and are angry and disappointed. She added that in her experience, CYFD is a system shrouded in secrecy and lacks transparency.
“There’s a confidentiality law that protects families from having their identities revealed when they’re involved, but really, the agency has used it for many years to shield its own negligence, its own wrongdoing, and its own corruption,” said Crecca.
And she said the 2,150 children in New Mexico’s foster system are paying the price.
“These young people are incredible, and they deserve our investment because they’re human beings,” said Crecca. “Leaving by the wayside an entire generation of children in foster care is a terrible idea for our society.”
And Casados agreed.
“I believed then and I still believe that the issues that were raised in the Kevin S. case and the outcomes and the targets that they implemented have to be met for a better child welfare system,” she said.
However, Fleishman, Yanan, and Crecca all said they have seen no justice in the system for their many clients and when these young people age out of care, they become survivors.
This story was also funded in part by the USC Annenberg Center for Health Journalism. Support for this coverage comes from the W.K. Kellogg Foundation.
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