By Ed Williams, Searchlight New Mexico

New Mexico’s child welfare system has devolved into a “state of chaos,” leaving foster children in dismaying and dangerous conditions, according to a scathing assessment from independent monitors. 

“The situation is worse than last year, deteriorating, and requires effective immediate action to protect children’s safety,” the monitors wrote in a Sept. 18 letter to the acting secretaries of the Children, Youth and Families Department and Human Services Department. 

The monitors’ assessment offers their harshest critique yet of the state’s failure to reform its foster care and child welfare systems in keeping with a legal settlement in a landmark class-action lawsuit known as Kevin S.

This story originally appeared at Searchlight New Mexico and is republished with permission.

Upon receiving the monitors’ letter, plaintiffs’ attorneys in the Kevin S. case followed up with concerns of their own. 

“We are in a state of emergency,” the attorneys wrote in a Sept. 24 letter to CYFD and HSD, the two agencies charged with implementing the reforms.  

The state has “utterly failed to perform,” the attorneys stated. “Children coming into the state’s custody are entering a system that is even more broken than it was last year.”

Taken together, the two letters detail a litany of risks to foster children and new challenges for HSD and CYFD, the agencies responsible for their welfare. Both departments were targeted in the 2018 Kevin S. lawsuit, brought by 14 foster children on behalf of all others in the state. 

New Mexico settled the case in 2020, agreeing to sweeping reforms overseen by three independent monitors, or co-neutrals. Among the improvements, the state vowed to place every foster child in a safe and appropriate home; create a new system of behavioral health care to help traumatized children; and stop its routine practice of housing foster kids in CYFD offices or homeless shelters.

A 2022 investigation by Searchlight and ProPublica found that rather than put all children in foster homes as promised, CYFD was continuing to warehouse its most vulnerable youth in shelters or offices, where the kids lacked proper care and experienced one mental health crisis after another. This practice has resulted in serious harm to children, including an instance in 2022 in which a teenager with a history of sexual misconduct allegedly assaulted a 10-year-old foster child in CYFD’s Albuquerque office. 

CYFD did not immediately respond to requests for comment. 

Not ‘rocket science’

Advocates have expressed frustration at the slow pace of reforms, which were hammered out and agreed to by both sides more than three years ago. 

“This isn’t rocket science,” said Tara Ford, one of the attorneys for the Kevin S. plaintiffs. It’s hard work and takes focused attention, she added. “But these reforms have been successful in other states. The fact that the parties agreed to a roadmap for reform and we can’t even stay on that roadmap is very distressing.”  

The recent letters, as well as interviews with attorneys and records from CYFD, show the scope of the problems. Data obtained through a public records request show that foster youth were placed in agency offices at least 29 times in June and July of this year alone. While there, they “are not being provided with basic safety, privacy, or even minimally nutritious food,” according to the letter from the Kevin S. plaintiffs’ lawyers.

“CYFD simply does not have the human capital to perform what is required by law and basic human rights,” Marron Lee, a children’s attorney currently representing foster youth, told Searchlight New Mexico. “Children and youth are stranded in situations that are untenable and create unnecessary lasting scars.”

The independent monitors largely blame the failures on massive staffing shortages at CYFD. The department has been hemorrhaging staff in recent years, losing two cabinet secretaries, two deputy secretaries, several bureau chiefs and hundreds of caseworkers. Despite the shortfall, CYFD instituted a hiring freeze in May, the monitors said.

In past interviews with Searchlight, staff have described crushing workloads and hostile work environments. The letters from the monitors and attorneys detailed many of the same problems — and some alarming new ones. Among them:

—CYFD’s Santa Fe office does not have a single “permanency planning worker,” essential employees who are directly responsible for the safety and well-being of foster children.

—CYFD workers sometimes go more than 24 hours without sleep because of the work volume. The sleep-deprived workers then have to drive foster children to and from appointments or placements because CYFD doesn’t have enough transportation aides. “This practice is a serious safety concern,” the monitors wrote.

—To fill the staffing gaps, CYFD supervisors and other higher-ups are managing foster children’s cases themselves, shouldering up to 40 cases at a time. “In our work with other states, we have never seen so many children’s cases being managed directly by supervisors,” the monitors stated. 

—HSD had not provided “any meaningful assistance” for children needing behavioral health care. In their letter, attorneys specifically accused HSD of mishandling placements for treatment foster care, a type of specialized foster care for high-needs children.

If the state does not make specific plans to take corrective action by Oct. 6, plaintiffs’ attorneys said in their letter that they will request arbitration, stepping up pressure on the state to honor its promises. 

The state has struggled to comply with the Kevin S. settlement from the outset. As of mid-2021, the monitors found that the state had met only 11 of the agreement’s 49 targets.