Child welfare advocates condemned the state of New Mexico this week, saying its lack of progress on court-ordered reforms fails “to meet the mark” on its moral and legal obligation to children in foster care.
“For too many children, this lack of progress means they continue to languish rather than thrive,” said Tyrik LaCruise, a staff attorney with Public Counsel, in a press statement released Wednesday.
LaCruise called on New Mexico’s Human Services Department (HSD), the Children, Youth and Families Department (CYFD) and Democratic Gov. Michelle Lynn Lujan Grisham to better support reforms required under a 2020 legal settlement in a case known as Kevin S. The lawsuit resulted in a promise to improve conditions for children removed from their parents, no matter how challenging, but a recent independent review of the state’s progress found significant change to be lacking, advocates say.
“As the recently released report makes plain, New Mexico is failing to meet the mark,” LaCruise said. “We call upon the heads of HSD and CYFD to ask for what they need to meet their obligations under Kevin S., and we ask for the governor’s full commitment to this long-needed reform.”
In a statement emailed to The Imprint today, the heads of the state child welfare agencies defended their progress on the reforms, stating that they have expanded access to behavioral health care and worked on improving the supply of foster homes. Officials also noted that many changes have been made this calendar year that were not included in the latest report from the court monitors.
“We’re proud of the meaningful work and accomplishments that our staff and partners have achieved throughout the last two years — but we are continuing to push hard to make every change needed to ensure that every New Mexico child in the Children Youth and Families Department system receives the very best care possible,” said Cabinet Secretary Barbara Vigil. “While we have more work ahead, I am certain we are on the right path.”
State officials say improvements made this year include enhanced grievance procedures and new assessment tools that more accurately measure crisis situations and children’s needs and strengths.
The March 2020 Kevin S. settlement established an agreement between the state and child welfare advocates that created specific benchmarks for the coming years.
Issues raised in the case are systemic and wide-ranging, including an inadequate number of caregivers in the foster care system as well as poor medical, mental and behavioral health services for children.
The lawsuit Kevin S. v. Blalock & Scrase was filed in 2018 by the Native American Disability Law Center and Disability Rights New Mexico, joined by 13 children in New Mexico’s foster care system. The suit sought better protections from a system that the plaintiffs described at the time as being “among the worst in the nation.” The state has roughly 2,000 to 2,600 kids in its system, according to state data.
Three independent child welfare experts — Kevin Ryan, Pam Hyde and Judy Meltzer, also known as the “co-neutrals” — are tasked with helping the state reach target goals. The four areas of reform include: creating a system of care that is “trauma-responsive;” prioritizing the least-restrictive foster care placements; providing behavioral health resources and services and adhering to the Indian Child Welfare Act. The reforms are subject to continuous evaluation until they’ve been met for 24 months minimum.
The three independent experts overseeing the case assessed the state’s performance through data analysis and public feedback before issuing a status report on the Kevin S. initiatives in December. Those findings were made public on Wednesday.
The Albuquerque Journal reported that the state has made some progress in reducing the number of children in foster care overall, among them, creating plans for better recruitment and retention of foster parents. But progress has been plodding, advocates insist, and too many foster children who should be in family homes remain in unsuitable settings such as offices, shelters and group care facilities.
The state agencies met seven of the 16 target benchmarks that needed to be completed by Dec. 31, 2021, according to the recent report’s authors. They noted, however, that “in many areas, the State has made efforts and progress in 2022 that are not fully detailed in this report because they extend beyond the period under review.”
Critics remain wary.
Chief Executive Officer Gary Housepian of Disability Rights New Mexico said the report “reflects a troubling lack of progress toward providing children the care they need to heal from traumatic experiences and grow into happy, healthy adults.” Disability Rights New Mexico is part of the team that surveys the state’s progress on the settlement’s provisions.
Housepian added that the promised relief isn’t coming soon enough to New Mexico families, noting that the settlement is supposed to guide a “trauma-responsive” framework of care that ensures children have appropriate support and are placed in secure family settings.
The 13 plaintiffs in the Kevin S. lawsuit circled in and out of emergency placements including government offices, homeless shelters and residential treatment centers, according to their lawyers. Under the agreement, none of these types of placements are permitted unless “extraordinary circumstances” call for it.
But the independent review found that the state failed to meet that performance standard. In 2019, 83 children experienced one unacceptable placement, including a hotel, motel, office or out-of-state facility. Those emergency placements increased in 2021 to include 4% of foster children, or 102 kids. Roughly half of the children who slept in offices spent one day in those settings but 33 kids spent at least three days in offices, and 19 for over six days, the court-appointed experts found.
The Kevin S. case cites the experiences of a 16-year-old Diné or Navajo foster youth, identified as Diana D. who had been in the child welfare system since 2016. Court documents noted her eleven different placements, all of which fell short of federal Indian Child Welfare Act protocols that prioritize tribes and close kin. Diana D. was also poorly cared for, her lawyers allege. She was given nine different medications for a variety of mental health challenges stemming from trauma.
Diana went months without orthodontic care that she needed, the suit alleges, and among her many placements was a residential treatment center where she was subject to daily strip searches, according to court records.
In the Wednesday press statement from the foster children’s advocates, Therese E. Yanan, attorney and executive director of the Native American Disability Law Center, highlighted a fundamental obligation that New Mexico has to its 23 federally recognized Indigenous sovereign nations that reside within its borders.
The 1978 Indian Child Welfare Act is a key part of that relationship, requiring that Indigenous children remain within tribal communities whenever possible in the case of foster care or adoptive placements. But without state agency compliance, that relationship can’t succeed.
“The State continues to fail to meet its commitments to provide culturally appropriate services to Native American children in their custody,” Yanan said.
The independent experts’ report did find that one of New Mexico’s successful endeavors centered on better treatment of its Indigenous children: the collaboration between New Mexico, sovereign communities, Pueblos, and Tribes that led to the enactment of the New Mexico Indian Family Protection Act. The law codifies state provisions of the Indian Child Welfare Act, known as ICWA, which is now being challenged at the U.S. Supreme Court.
The state child welfare agency has also been working with tribal partners to eliminate barriers to foster parent licensing for Native American families, a representative stated. Those efforts include broadening access to tribal homes by assisting with upgrades and eliminating requirements that precluded Indigenous community standards, like homes with dirt floors, from meeting licensing requirements.
Bette Fleishman, executive director of Pegasus Legal Services for Children, pointed to the high stakes involved in caring for kids in New Mexico’s child welfare system.
“Our children cannot wait — many have aged out, some are incarcerated, and some are no longer with us,” Fleishman said. “Our state has a moral obligation to do better.”
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