Jun. 7—New Mexico’s child welfare agency is headed back to arbitration over a landmark settlement that stemmed from a lawsuit filed years ago alleging the state was failing to adequately care for young people in its custody.

The Kevin S. settlement — which followed the class-action suit filed in 2018 by 14 foster children against the state Children, Youth and Families Department and Human Services Department — set out a number of goals for reform, including developing a “trauma-responsive” system of care, building out a strong behavioral health services network and addressing the needs of Native children in foster care.

Sara Crecca, an attorney for plaintiffs, said Friday her team has worked in recent years to come up with achievable ways for the state to meet the settlement’s standards — even in some cases agreeing to scale back those goals to allow for incremental progress.

“None of it has been accomplished,” Crecca said Friday, addressing state lawmakers on the Legislative Health and Human Services Committee during a meeting in Albuquerque. “We encourage you to hold this agency accountable to what it has already promised.”

CYFD Secretary Teresa Casados told lawmakers “structural change doesn’t happen fast.”

State leaders are in some cases rebuilding structures that were “improperly structured” to begin with, she added.

“If we were just doing this fast and just worried about meeting those numbers, we wouldn’t be doing all the work that we’re doing to make sure that we’re setting that strong foundation,” Casados said. “… We’re doing it methodically, we’re doing it slowly and we’re doing it so that it can be sustained.”

The update on the Kevin S. case came as the legislative committee embarked on a three-day dive into all things child welfare. Lawmakers heard about rising instances of children hospitalized from drug exposure, concerns about CYFD’s investigative approach from former foster children and an update on the agency’s efforts to end the practice of allowing children to sleep in CYFD offices.

Casados said she’s “very comfortable” heading back to arbitration to show what progress her department has made in recent months and said the state government is still committed to the Kevin S. settlement.

“There’s nothing in those agreements … that we disagree with as a department,” she said. “We really feel like those are all measures that need to be met.”

The department is trying to bring a more bite-sized approach to meeting the goals, she said.

“I think for the last year, we tried to do everything at once, and I felt like we accomplished nothing at all,” said Casados, who took over leadership of the department on an interim basis in April 2023 before being confirmed earlier this year. “We’ve taken a different approach to … try and reach those deliverables on a smaller scale.”

Casados said she plans to point to progress, not completion, in meetings with the arbitrator.

“I feel like we can show the requirements in Kevin S. were not that we would get to that standard, but that we would make good faith efforts towards doing that,” Casados said. “If you look at where we were a year ago versus where we are now, I think we can honestly say we made a lot of effort and a lot of progress.”

Workload and turnover

The twin problems of heavy workloads and high rates of staff turnover are major hurdles for the agency, leaders and advocates agree, and are targeted for improvement in the settlement.

Casados said the “ideal caseload” for a CYFD investigator is 12 cases.

“Some of the cases are much harder than others,” she acknowledged.

The department set an initial goal of getting investigators’ caseloads down to 200% of the overall goal, or 24 cases — a goal she said is being met in some areas of the state.

Part of the challenge of easing the workload is hiring and holding onto staff members. About 1 in 5 fieldwork positions is unfilled, Casados said. The agency needs to hire about 58 investigators, based on the number of open investigations.

The agency has been hiring over the past year, she said, but it takes about six months for a new staff member to take on a full caseload.

Rep. Liz Thomson, an Albuquerque Democrat, said she doesn’t see achieving 200% caseload as a cause for celebration.

“I guess it’s better than 1,000% or 500%,” she said. “We’re not even there for the whole state. So, of course we’ve got turnover.”

The level of vacancies and turnover take a toll further downstream.

Bette Fleishman, executive director of Pegasus Legal Services for Children, said she’s had foster cases delayed in the court system sometimes for years due to CYFD’s high turnover. Sometimes a brand-new staffer will show up for court on the day of a hearing and ask for a delay to get up to speed. Other times — including twice this week, she said — nobody shows up in court at all.

“You can’t have a hearing if the worker who is the legal guardian of this child isn’t there,” Fleishman said. “Then it creates delays in permanency for the children, and it’s harmful while these children linger in care, often for years, unnecessarily.”

Sen. Jerry Ortiz y Pino, an Albuquerque Democrat and the committee’s chairman, said turnover at the leadership level has made it hard for lawmakers to get information. Casados is CYFD’s third Cabinet secretary under Gov. Michelle Lujan Grisham’s administration.

“Every six months it’s a completely new group of people,” Ortiz y Pino said. “… I hate to say this, but I’m not sure I want to learn their names because the last group whose names we learned, they’re all gone.”

Gary Housepian, CEO of Disability Rights New Mexico and a member of the Kevin S. plaintiffs team, agreed that’s a concern.

“As we talk about achieving reform, one of the things that has prevented or been an obstacle is that this change requires stable and sustained leadership,” he said. “That has been a problem.”

Foster family shortage

Maintaining enough foster families — including those who can handle the more challenging youth and children — is a challenge, as is finding providers to complete home studies. The agency is putting on a series of recruitment events around the state.

Casados said CYFD also is looking for ways to better support foster families with training and resources.

Dr. George Davis, a child psychiatrist and consultant for the Kevin S. plaintiffs, said he hasn’t seen any figures that indicate growth in foster families and hasn’t seen “a systemic plan for how to carry out that recruitment or that retention.”

“By almost any measure, CYFD is grossly short of adequate foster parents,” he said.

It’s a crucial problem to fix, Davis said, especially when the alternative is a group home.

Casados told lawmakers Thursday the state has opened a new home for boys 12 and older to cut down on the number of kids sleeping in offices — a development she called a win for the agency.

“Residential care is not a good place to raise a kid,” Davis said. “It’s great for an emergency and it’s terrible for the actual conditions that promote normal development.”

Inadequate medical network

Access to medical care also continues to be an issue.

The Kevin S. settlement outlines that every child who comes into state custody should get a “well-child” check within 30 days. Casados said when her team started looking at that number a year ago, it was meeting that requirement with fewer than 30% of children.

“Right now we’re at about 50%, maybe 55% of those kids getting their visit within 30 days,” she said. “That’s incredibly hard to do right now with the lack of providers that we have, especially in some rural areas.”

Housepian agreed the medical network, particularly providers who accept Medicaid, is inadequate. He said the plaintiffs are looking to the Human Services Department — the agency that oversees the state’s Medicaid program and another defendant in the original Kevin S. case — to hold to account insurance companies contracted to manage Medicaid care.

Human Services Cabinet Secretary Kari Armijo has spoken publicly in recent months about wanting to pressure those companies to do more to solve New Mexico’s provider shortage.

Housepian said that has to happen.

“I’ve looked at those contracts,” he said. “They have great provisions in it, but they’re meaningless unless they’re enforced.”