A foster mom and her foster child and other children at a preschool playground in Albuquerque. / Photo by Don J. Usner

Newly settled agreement establishes better road map for New Mexico’s foster children.

New Mexico has reached a settlement in a years-long lawsuit that accused the state of failing to protect many of its most vulnerable children.

The accord, released March 26, sets out a multiyear plan for New Mexico’s Children, Youth and Families Department and Human Services Department to work together and assure that kids in foster care receive the supportive living environments, medical services and behavioral treatment they need. It is the culmination of a legal case brought by 14 foster children and two nonprofit organizations in September 2018.

“It’s a dream come true, or a nightmare over — one of the two,” said George Davis, a 23-year veteran of CYFD, who served as the agency’s director of psychiatry from 2007 to 2016. Davis was a consultant to the plaintiffs in the suit.

The allegations were indeed the stuff of nightmares. 

According to the complaint, one foster child spent two nights sleeping in a CYFD office, from which he escaped — he was found dodging cars in the street. When he was sent to a residential treatment center in Colorado, he was attacked by other children, sustaining black eyes and other wounds. Another child was raped twice by adults when she lived in short-term shelters. She was younger than 14.

Under the settlement, CYFD and HSD will collaborate with a variety of community organizations to make sure that foster kids receive appropriate care. Many, if not all, of those children have experienced trauma, in or out of CYFD care.

CYFD Secretary Brian Blalock, who took over the agency in January 2019, said that he already has begun moving the agency in that direction, and that many of the plaintiffs’ goals are part of his strategic plan.

“When we sat down with the plaintiffs, I think we figured out pretty quickly that we were on the same page,” Blalock said.

Nancy Koenigsberg, senior attorney at Disability Rights New Mexico, one of the plaintiffs, mirrored his language in describing the settlement.

“We are really pleased about the same pages that we ended on,” Koenigsberg said. “We’re all really pleased by what the outcome is.”

The plaintiffs and the state are still hashing out exactly what needs to happen next. They’re working under the supervision of three experts in child well-being, one of whom is Pamela Hyde, a former HSD secretary. 

By December 2020, the state must draft a plan setting out how it will measure progress toward the goals enumerated in the settlement. Those goals are detailed and measurable, spelling out how the foster care system must change and take better care of children affected by trauma. 

Documents pertaining to the settlement — including the December 2020 report — are to be made available online at a website that has been set up by the plaintiffs. 

The collaborative process stands in stark contrast to a separate pair of high-profile state lawsuits over the quality of New Mexico’s educational system. Those suits, filed in 2014 and known collectively as Yazzie/Martinez, resulted in a broad court order to fix New Mexico schools — not a specific agreement with measurable markers of progress.

“One reason we are confident in the settlement [compared to Yazzie/Martinez] is that we came to the settlement together,” said Bette Fleishman, executive director of Pegasus Legal Services, who represented one of the children in the suit against CYFD and HSD. “This is not imposed on [the] state by a judge. We all agree.”

Blalock said the initiatives agreed upon by the parties shouldn’t cost taxpayers any additional money — his agency already has budgeted for the programs.

“Everything that’s in the settlement agreement, we agree that we need to be doing,” Blalock said. “We plan to be doing much more than that.”

One of the major issues addressed was the relationship between CYFD and HSD. The two agencies play complementary but distinct roles in the lives of children who are under the care of the state.

While CYFD has legal custody of the kids, HSD plays a large role in determining what medical care they actually receive. That’s because HSD runs the state Medicaid program, which covers most children under CYFD care. If HSD decides not to pay for a particular service, CYFD has limited funds available to make up the difference.

Because HSD runs the Medicaid program, it has the most immediate access to data about what kinds of medical treatment the kids are — or are not — receiving.

In previous years, an ineffective relationship between the agencies made it difficult for the state to effectively care for the children — and, in some cases, put kids’ lives in danger.

Davis, the former psychiatry director, pointed to the state’s bungled oversight of doctors who prescribed psychotropic drugs to kids in state custody. That was a “perfect example” of what happens when the two agencies failed to cooperate, he said.

Searchlight New Mexico investigated the issue in 2018, detailing the case of one doctor who was criminally investigated in the overdose deaths of 36 patients.  

Other programs have been damaged by this historically sour relationship as well. 

“There’s some fundamental infrastructure at CYFD that suffered greatly because of the lack of communication between CYFD and HSD and the lack of collaboration,” Blalock said. 

Since taking over last year, he said, he has started to fix some of those problems. And he says he has enjoyed a solid working relationship with the current HSD Secretary, David Scrase — a characterization that an HSD spokesperson affirmed. 

The settlement also mandates that HSD exercise stricter oversight of the private health care companies, known as MCOs (managed care organizations), that actually provide Medicaid coverage. That’s important because the MCOs decide, by and large, which health care providers are able to treat Medicaid patients.

It’s all well and good for CYFD and HSD to require that kids receive specific types of care. But those requirements only mean something if the MCOs have contracted with health care providers in the community who actually offer those services.

Separately, the settlement commands the two agencies to work with the Administrative Office of the Courts, as well as with tribes and pueblos, to draft a state version of the federal Indian Child Welfare Act. That law, known as ICWA, helps keep Native children in Native communities.

The federal law is often challenged in the courts, and having a state version would ensure that Native children will retain these protections regardless of what happens federally, according to advocates. 

The plaintiffs know that all of these efforts are going to take time. But they have confidence that — with the help of state leaders and independent experts — they will be able to improve the system. 

The longest road, Davis said, may be just ahead.

“Getting this agreement is going to look like cake compared to doing this agreement,” he said.