Many child advocates said they were caught off guard by the passage of a little-known bill in this year’s state legislative session. House Bill 46, once signed by the governor, will create a new model for the hiring and oversight of attorneys who represent parents and children in abuse and neglect cases.
The Office of Family Representation and Advocacy promises a major revision in legal representation for New Mexico: a centralized agency with five regional satellites spread across the state, each staffed with attorneys, paralegals, social workers and support staff.
But the bill wasn’t passed without controversy. Several child attorneys are on record saying that it won’t resolve any of the core problems that afflict New Mexico. They argue that the cost of establishing this new agency is prohibitive — and that there is no evidence it will improve the quality of representation.
On one thing all agree: There is a deep need for high-caliber and better-paid lawyers for child abuse and neglect cases, particularly in rural areas of the state. For two years, a task force met monthly and in public with the express mandate to improve the quality of legal representation in these matters.
Its members were composed of a veritable who’s who of child experts — among them, Children’s Court Judges Jennifer DeLaney and John Romero Jr.; Lewis Creekmore, executive director of New Mexico Legal Aid; and Mimi Laver, director of legal representation of the American Bar Association’s Center on Children and the Law. The list also included numerous representatives from the troubled Children, Youth, and Families Department, including, notably, Brian Blalock, the former secretary of CYFD.
Their report, presented to the legislature in 2020, was withering in its criticism of current practices. “Attempting to improve outcomes through legal services as currently provided is simply not working; child welfare advocates, scholars, and practitioners in New Mexico have tried for over 20 years.”
It continued: “There is too much attorney turnover and no good process for case transfers. There are issues of conflict because all attorney contracts are administered by the court system. There is little oversight and no quality monitoring. A new and independent agency with a practice model as described herein is needed. It’s time.”
But while legal representation has been the pretext behind the legislation, the backdrop is about something else altogether, advocates say.
“The real issue is that the whole system nationally has changed,” said Bette Fleishman, executive director of Pegasus Legal Services for Children, an Albuquerque-based nonprofit agency that supports the legislation. “It’s grown from a very punitive, anti-parent, yank-the-kids-out-and-get-them-adopted approach to reunifying — a more preventive approach before the case is even filed. That’s a huge shift, and we all need to catch up to that. This office will help promote that philosophy.”
The legislation has faced concerns from several organizations, including New Mexico Child First Network, a group that supports foster parents and caregivers; and the New Mexico Crime Victims Reparation Commission, which targets 25 percent of its budget for child welfare services.
Its most vocal opponent, however, is Advocacy Inc., a nonprofit collective of 21 lawyers whose clients currently number 633 children in Bernalillo County. All independent attorneys contract with the Administrative Office of the Court and are known as guardians ad litem (when they represent children under 14), youth attorneys (for kids 14 to18) and eligible adult attorneys (18 to 21). These lawyers often regard themselves as “the last stand” for their young clients.
Searchlight New Mexico recently talked with Alison Endicott-Quiñones, Advocacy’s legal director, about her opposition to the legislation, which is expected to be signed into law by March 9.
Endicott-Quiñones has been a practicing attorney in the child welfare system for over 10 years, and currently provides legal representation for young people as a guardian ad litem, youth attorney and eligible adult attorney. In the past, she was a Children’s Court Attorney for CYFD.
The following interview was edited for brevity and clarity.
This new agency, the Office of Family Representation and Advocacy, is the end result of years of discussions. Yet it got very little media attention during the legislative session and your office has risen up against it. What’s going on?
When they originally began talking about this, it was supposed to be a completely independent agency, similar to the public defender’s office. It would have been a free-standing agency, independent from the judiciary and executive branches, and would have required a constitutional amendment. They’ve changed it to an adjunct agency under the executive branch because it was faster to get through that way.
As written, it’s intended to give attorneys more resources and improve the quality of legal representation for children and parents in abuse and neglect cases. What’s wrong with that?
I believe that’s what they’re saying. I don’t believe it will play out that way.
Improvement of quality of representation is a good thing. There are a lot of broken pieces in our system, a lot of roads that need desperate repair. And a lot of those roads lead back to CYFD.
Another thing: This new agency is modeled after the Law Offices of the Public Defender. A recent study co-sponsored by the American Bar Association and New Mexico stated that the LOPD has one-third of the needed attorneys to meet the federal standard for representation. They have too high a caseload and too much turnover. And as a result, not everyone is getting needed representation.
So you’re questioning whether the state can build a first-rate bureaucracy when the applicant pool of attorneys is already limited?
That’s right. Children’s law is a highly specialized area, so if the idea is raising the quality of representation, you want attorneys with experience. If they have trouble with staffing, they’re going to have to lower the standard, they’re going to have to take people who are not qualified.
Right now, within our abuse and neglect system, CYFD has its own legal staff. And their attorneys turn over almost as fast as their caseworkers. CYFD has incredibly high turnover. They have unreasonable caseloads. They have low morale. How is this new office going to be any different?
This new agency — a large bureaucracy with offices around the state — is designed to combine services for children and parents. You’ve said that doesn’t make sense to you.
We are not opposed to improving things. But if you put children’s representation under the same roof and management as the parents’, there is a high risk for conflict of interest. Both legally and in terms of a policy standpoint.
When you put them together — put victims and perpetrators under the same roof with the same management — even just coming in and out of the same building, there’s going to be the sense, and maybe it’s by design, that everybody’s on the same page. That there is no true representation of the individual because everyone is mixed together.
This agency has garnered the support of many child welfare advocates. It’s also endorsed by CYFD, an agency that has opposed reforms in the past.
The endorsement by CYFD is concerning to me. Especially in light of the fact that they’ve opposed all other legislation that involves accountability. They fervently opposed the office of the ombudsman. To me, that sends a message: less transparency, less accountability.
How many children do you represent?
My number of cases currently is 39 and the majority are neglect cases. But even when it’s “just neglect” — which I believe is really being underplayed — it’s still a form of trauma. When you have a kid who doesn’t get food, who’s not getting any supervision or never going to school — that’s trauma.
And one of the things that’s very common is that kids come in for neglect — and in order to disclose some of the things that have happened to them, they need to feel safe and comfortable. So often you see additional disclosures made after the child has come into custody. The child hasn’t been eating, they’re coming to school dirty, the parents are not responsive — and then, later on, you find they have been sexually or physically abused by someone in the home.
Reunifying with the family in some of these cases might not be in the child’s best interest, I imagine. But this new agency is being referred to as the Office of Family Representation and Advocacy. That suggests a strong emphasis on keeping the family together.
Reunification is the goal as long as it’s safe. But now there seems to be a trend — that we need to lower the definition of what’s safe in order to have fewer kids in custody or returned to the family as soon as possible.
How does that policy play out in your experience with CYFD?
For example, you have a baby who was born drug-affected, and for whatever reason they couldn’t figure out a way to mitigate the circumstances so that the child can stay with the parent or a relative. I will fight for that child to have visitation every day because the bond with the parent needs to be developed.
But then you have a child who comes in with a skull fracture and a black eye and an old fracture to the leg. That child should be considered as a distinct individual with different needs. …They have been victimized. And we need to make sure they are safe and feel safe.
I have so many clients who tell me they have been forced to attend visitation.
I understand that CYFD has a written mission that workers feel obligated to follow… But when you have a child curled up into a fetal position underneath the bed to get away from even a video visit, that says something.
What? That’s a pretty shocking image.
We talk about trauma. Being trauma-informed. Yet by the same token, we start visitation on a child who’s had their bones broken by their parent. They start visitation right out of the gate, even if there are criminal charges pending. Because CYFD policy is about reunification and parents having the right to visitation.
For example, a parent who has a very serious substance abuse problem, who has been in and out of prison or jail, unable to maintain sobriety time after time. Then they come in and they’ve maintained sobriety for three months. And CYFD says okay, they have three months of sobriety and it’s safe for the kids to return.
You speak with any substance abuse professional and they’ll tell you: If you have a lifelong addiction, three months is almost nothing. Two months, sometimes we’ll see one month — and CYFD will stop drug testing.
The emphasis on reunification, that’s a whole national debate. A lot of states have signed on to reunification.
Don’t get me wrong, reunification is our primary goal — as long as it’s safe. But it’s something that needs to be done on a case-by-case basis and not as a matter of sweeping policy. Because New Mexico is different. We fluctuate between 48th and 50th in the nation for child welfare. And I don’t just mean neglect and abuse.
Could we go back to reunification for a second? Is the over-reliance on it something you see a lot?
I have seen it. So yeah. I mean, I see it more and more and more. I have a number of outstanding cases where visitation was forced and I was demonized for holding off on visitation because that’s what the child stated they wanted. Visitation is important, maintaining a family bond is important. But there are certain things that should preclude that.
There is just this push, so hard, to reunify that you see a lot of issues with children being returned early. It’s a policy shift within CYFD. I’ve had six or seven different CYFD workers independently tell me that their reunification cases were tied to their raises or positive evaluations.
You describe the guardian ad litem as the last stand for a child in CYFD custody. Isn’t that a little overblown?
In Bernalillo County, the guardian ad litem is sometimes the only person the child has known from the beginning of their case. The caseworker often changes four or five times. There are rare, rare occasions when that doesn’t happen. It’s so rare they’re even mentioned in court: “Holy mackerel, you’ve had the same worker since the beginning, how could that be!”
The one constant that many of these kids have is the guardian ad litem. And as a result, they trust us. My job, my training is to allow that child to feel safe, to talk to me, and to give me the information I need to represent their best interests. I sit there, I sit on the floor and play with them, I let them sit above me so they feel they have that control.
What happens if lawyers and guardians ad litem are all folded into this new state agency?
Look, if you work for a government agency, you generally work 8 to 5. I can’t remember the last time I — or any of my colleagues — worked 8 to 5. I work foster parent hours, I work children’s hours. If I have a child who’s scared, who calls me at 11 o’clock at night, I answer my phone. Tell me how that’s going to happen with a guardian ad litem in a government agency.