Editor’s note: On April 7, Gov. Michelle Lujan Grisham pocket-vetoed the bill that would have allowed the Attorney General’s office to launch a civil rights division dedicated to children’s welfare. Attorney General Raúl Torrez issued this statement in response: “I am disappointed in Governor Michelle Lujan Grisham’s decision to veto Senate Bill 426. This important legislation, which had broad bipartisan and community support, would have given the Attorney General’s Office powerful new tools to protect the civil rights of every New Mexican and the explicit authority to advocate for vulnerable children who continue to be harmed by government neglect and incompetence.” He vowed to continue working to protect the rights of children and citizens.
Almost immediately after being sworn in on Jan. 1, New Mexico’s new Attorney General, Raúl Torrez, began signaling his intentions of focusing his office on the state’s intractable problems with child welfare. His idea: Create a new civil rights division, a branch of the attorney general’s office dedicated to safeguarding children, addressing dysfunction at the Children, Youth and Families Department and protecting children’s rights.
The stakes are high, Torrez told lawmakers. A recent investigation by Searchlight New Mexico revealed that a 10-year-old foster child was allegedly sexually assaulted by another foster youth inside the office building of the agency charged with protecting children — CYFD. In the past two years, several children have been killed by abusers in the state, ranked as one of the worst in the nation for repeated child mistreatment. And news stories have revealed that Native American students are excessively disciplined in public schools.
In February, state Sen. Joseph Cervantes introduced a bill to codify the new civil rights division into law. It passed both chambers — one of the few child welfare bills to make it through the 2023 legislature. The measure now awaits Gov. Michelle Lujan Grisham’s signature.
The governor has not indicated support for the bill publicly. But she has spoken out on the need to overhaul CYFD and in February issued an executive order to reform the “fundamentally broken” agency, as she described it.
If the governor signs the bill for the new civil rights division — a decision due by April 7 — New Mexico will join more than a dozen states to have a branch of its attorney general’s office actively dedicated to children’s rights. Torrez said the bill was modeled after California’s Bureau of Children’s Justice, launched in 2015 by the state’s then-attorney general, Kamala Harris, now the vice president. As planned, the New Mexico office would be able to pursue litigation that, for private attorneys, would be prohibitively costly.
Torrez laid out his vision for the office during a recent interview with Searchlight New Mexico.
The following has been edited for length and clarity.
Searchlight: Let’s start by talking about what kind of issues your office could pursue. I reported on an alleged sexual assault against a foster child that occurred in CYFD’s office building in December. Would that kind of incident be a priority?
Torrez: Yes. You know, I got my start as a child abuse prosecutor, and so I have no tolerance, no tolerance for situations where government actors have placed children in a situation where they can be victimized in that way.
We are going to prioritize our conversations around immediate harm and immediate danger. And that doesn’t just involve kids in homes where there are clear patterns of violence, abuse and neglect, but also what happens to those kids when they’re in state custody and what level of protection should and must be afforded to them. I mean that’s, from my perspective, the most important thing — because that should never happen.
Searchlight: Can you lay out how the process would work?
Torrez: One of the key elements is what’s called Civil Investigative Demands, or CIDs. What a CID enables us to do is to open an investigation and send a request for information to a public entity — CYFD, for example.
[Departments receiving the CID] would then be mandated to comply with that investigative demand. It’s like a subpoena.
Then, once we have all that information, we’ll make a legal determination about whether or not the rights of these children have been violated in some way.
We would then go back to the department and — not unlike the U.S. Department of Justice — what we can do is present a couple of options. Option number one: We say ‘These are our findings and we’re prepared to file a lawsuit.’
Alternatively, we can negotiate a consent agreement. And we’ll have an independent monitor.
Searchlight: The consent decrees would include court oversight, and the agency would need to put reforms in place or risk litigation. What advantage do you see in this approach?
It gives a structured framework, under judicial oversight, to really start digging into these larger institutional issues that seem to plague a lot of these agencies. …We have certain agencies that are just really in trouble.
What this does is it gives us the power of potential litigation to change behavior. It’s a way to really speed up institutional change.
Searchlight: This state has seen a number of consent decrees to force reforms — and some of them drag on for years. I think you could argue that we have a tradition of reaching consent decrees, and full compliance never happens.
Torrez: Is it a perfect system? No. Are there other ways to get institutional change? Yes. I mean, one of the things that I think you didn’t see in this latest legislative session is a real step toward comprehensive reform of CYFD, right?
Now, I know the governor has issued an executive order and that there’s a bill that tries to memorialize some of the things contained in the executive order. But from my perspective, that doesn’t appear to be something that was comprehensively planned.
Searchlight: It sounds like you’re saying the CYFD reforms announced by the governor aren’t enough.
Torrez: I respect the fact that she’s trying to do something. I think it’s important. I think having her recognize that, in her words, the agency was dysfunctional is an important thing to acknowledge. Because you can’t fix any problem if you don’t acknowledge that it exists. But my sense is that it’s too early to tell if those structural reforms [in the governor’s directive] are going to be sufficient.
And this office will serve as an enduring check on whether or not those changes have the desired effect. If they work, great, right? If they solve the problem, that’d be wonderful. But if they don’t, then there’s an alternative path.
Searchlight: I’ve written stories with ProPublica showing that CYFD is warehousing foster teens in homeless shelters. Some kids attempt suicide, run away or get arrested; trafficking is also a risk. This isn’t supposed to happen. Under the settlement in the Kevin S. case — a landmark lawsuit — CYFD promised to provide safe homes and mental health services for all foster children. Could your office pursue issues like this?
Torrez: Yes. Yes. The people that have been intimately involved in the development of Kevin S. — they are the people I will go to. Or the people who’ve been strongly supportive of this [civil rights office bill]. I’m going to first talk to them, number one. My focus right now is on children’s rights and really taking the elements of Kevin S. and seeing where they’re falling short and how to correct those issues.
Searchlight: CYFD has expressed concern about whether the investigations by a new office would run afoul of child confidentiality rules. Would that be a problem?
Torrez: The confidentiality provisions of the Children’s Code were intended and enacted to protect the privacy rights of children. They were not intended to shield problems in the management and administration and protect adults from accountability and independent oversight.
We don’t know yet how the agencies will respond to our requests. …But the legislature is signaling very clearly that it’s their expectation that they provide information to us.
Searchlight: The Attorney General’s office represents state agencies when they’re sued. So in some cases, the civil rights division could be filing lawsuits against the same agencies you’re tasked with defending. Isn’t that a conflict?
Torrez: Traditionally, people in this position have been on the defensive side of litigation: We come in to try and defend state agencies and state governments. And that will continue to be the case in lots of different contexts, right? However, under this legislation, if the agency itself becomes the target of a civil rights investigation, they’ll have the ability to get outside counsel.
Searchlight: Do you have the governor’s support?
Torrez: I haven’t had detailed conversations with the governor about these issues. I know that she’s been a strong supporter of civil rights in general. And my hope is that she supports this as well.