CYFD Sec. Barbara Vigil
Copyright © 2022 Albuquerque Journal


A new report assessing the state’s efforts to improve the care of abused or neglected children in state custody notes a few achievements, but advocates say overall, the data reveals a troubling lack of progress.

For instance, children taken into custody by the state Children, Youth and Families Department were still spending nights in offices, shelters, congregate settings and other placements in 2021 because of a lack of non-relative foster homes. Such temporary housing is supposed to be for extraordinary circumstances only.

The annual report made public Wednesday came from a neutral group tasked with measuring state compliance with a settlement agreement signed in March 2020 by child advocates, the state Children, Youth and Families Department and the state Human Services Department.

The report covered the calendar year 2021, just a few months into the new leadership of CYFD Cabinet Secretary Barbara Vigil.

The agencies failed to meet the majority of the targets assessed in the report that were supposed to be completed by Dec. 31, 2021. It says the state still needs to continue to strengthen and stabilize the CYFD and HSD workforce, increase foster family placements, expand behavioral and mental health services and strengthen the collaboration and communication with the state’s pueblos, tribes and nations.

In many areas, the report added, the state has made efforts and progress in 2022 that aren’t reflected in the report because it focused on the year 2021.

But the report found CYFD did develop plans for recruiting and retaining foster families, created a “warm line” for foster parents who need help with the behavioral needs of children in their care, published a guidance prohibiting retaliation against foster parents for raising concerns, and collaborated with New Mexico’s tribes, pueblos and nations to pass the New Mexico Indian Family Protection Act.

“These are significant accomplishments,” the report stated. “The parties understand they are not, by themselves, nearly sufficient to realize the full intent” of the settlement agreement of a federal lawsuit filed more than four years ago, the report stated.

The lawsuit was filed by representatives for 13 foster children, including the lead plaintiff child identified as only Kevin S. Two nonprofit groups, Disability Rights New Mexico and Native American Disability Law Center, were also plaintiffs.

Vigil in a statement said she was proud of the “meaningful work and accomplishments” achieved so far. “While we have more work ahead, I am certain we are on the right path.”

New Mexico Human Services Secretary David Scrase

David Scrase, head of HSD, said his agency had made significant efforts to expand health care access for children in state custody.

The report showed the number of children in foster care or other state custody was the lowest in years, dropping more than 19 percent from 2,212 at the end of 2019, to 1,781 children by Dec. 31, 2021.

Forty-five percent of those were ages birth to six years old. Some 35% had been in state custody less than a year, with 25% in state custody for more than three years.

The so-called Kevin S. lawsuit alleged the state’s “broken system of child welfare” failed to provide stability and support to foster children who were locked into “a vicious cycle of declining physical, mental and behavioral health and increasingly inappropriate, restrictive and punitive placements and treatment.”

Gary Houseplan, CEO of Disability Rights New Mexico, said in a press release the new 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. For too many children, this lack of progress means they continue to languish rather than thrive.”

Sara Crecca, co-counsel in the legal case, said Wednesday, “We’re at this critical make or break point where I want the community and the government to know we can still do this. It’s hard, but it’s worth it.”

The settlement agreement in part requires the creation of a “trauma-responsive system of care” for children in state custody. It also mandates the least restrictive and appropriate placements of children in custody.

According to the new report, the data for 2021 shows the “importance of placing children with kin is ingrained in CYFD practice. At the same time, there was a significant shortage of non-relative resource homes for children who cannot be safely placed with kin, likely worsened by the pandemic.”

By December 2020, under terms of the settlement agreement, no child under 18 was to be placed in any hotel, motel, out-of-state provider, office of a contractor or state agency unless there were extraordinary circumstances necessary to protect the safety and security of the child. And such housing was supposed to be approved by the CYFD secretary or protective service director of the agency.

But the new report states such placements occurred in 2021 at CYFD offices and out-of-state without meeting the extraordinary circumstances standard and without consistent approval of the designated CYFD top officials. The state didn’t meet the performance standard as a result.

The fact that there may have been a lack of alternative placements at the time isn’t considered extraordinary, the report noted. Some 83 children or 2% of those in state custody in 2019 experienced at least one such placement, specifically a hotel or motel, office or out-of-state facility. That increased in 2021, when 4%, or 102 children, were housed in such conditions.

Nearly half of the office placements lasted a day, but 33 children spent at least three days in an office setting, and 19 of those stayed more than six days.

This year, the report stated, under Vigil’s leadership, CYFD took steps to require certain rooms within CYFD offices to be available for children to have a comfortable and private environment if they had to remain overnight. Rooms needed to be furnished with beds, linens, clothing and access to a bathroom with showers.

Tyrik LaCruise, staff attorney with Public Counsel, co-counsel in the case, said the Kevin S. settlement is a “blueprint to transform the New Mexico child welfare system, and we knew that change would be difficult.” LaCruise called upon “Gov. Michelle Lujan Grisham and the state legislature to catalyze these reform efforts. Tomorrow is too long to wait.”