New Mexico Foster Youth Sue State for Lack of Services, Adequate Caregivers

Advocates in New Mexico filed a lawsuit Monday on behalf of 13 children and youth in foster care against the Children, Youth, and Families Department (CYFD) and the Human Services Department – the state agencies charged with their care.

Kevin S. v. Jacobson was filed in federal district court in New Mexico by Disability Rights New Mexico and Native American Disability Law Center. The 95-page complaint alleges that the state has failed to provide adequate caregivers and placements for youth as well as the medical, mental and behavioral health services children in foster care are entitled to receive.

“After suffering unspeakable trauma in their homes, New Mexico’s foster children need and deserve a foster care system that provides opportunity, rather than one that subjects them to further trauma,” said Grant Davis-Denny, co-lead counsel and attorney at Munger, Tolles & Olson, in a statement. “The clear violations of law detailed in this case are unconscionable and must be remedied as soon as possible.”

Also raised in the lawsuit is the state’s lack of appropriate foster homes for American Indian children and youth under the Indian Child Welfare Act (ICWA), resulting in, “among other problems, the cycling of Native children in custody through multiple, nonpreferred placements,” the complaint reads.

According to Therese Yanan, executive director of the Native American Disability Law Center, “New Mexico does not have enough foster families to meet the intent of the Indian Child Welfare Act. As a result, the state fails to meet its obligations to Native children in custody who, like all children, need family settings to thrive.”

The complaint cites the example of 16-year-old Diana D., a youth enrolled in the Navajo Nation who has been in foster care since 2016. In that time she has moved between 11 different placements – none of which meet the preferred placement requirements of ICWA – and has been prescribed nine different medications for diagnoses of Post Traumatic Stress Disorder, complex neurodevelopmental trauma, depression and borderline personality traits.

Diana’s mental health and education have both suffered as a result. She is being taught in a segregated classroom without a clear Individualized Education Plan in place, the complaint says. Because the state has nowhere to put her, she is stuck in an overly restrictive residential treatment center where she is subject to a form of strip-search on a daily basis. She also went without adequate orthodontic care for more than six months, resulting in cuts in her mouth and other issues.

The complaint outlines the steps plaintiffs believe are necessary to remediate the state’s alleged failings, including: screening for trauma and providing related services in a timely manner, consistent monitoring of children’s health and treatment, implementing a holistic wraparound service model that emphasizes sustaining relationships, and a commitment of resources to better train caseworkers, mental health professionals and foster parents.

CYFD did not respond to a request for comment. The agency’s spokesman, Henry Varela, told the Albuquerque Journal  on Monday that the state had a net gain of 258 foster parents since 2015.

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