After being sued by disability rights advocates, the state of New Mexico is making slow but steady progress on a series of foster care reforms, according to lawyers representing 13 children in a 2020 class-action settlement. They include placing foster children in the least-restrictive settings, expanding access to behavioral health services, creating a “trauma-responsive” system of care and following the federal Indian Child Welfare Act more closely.
The state was able to document that it has improved its record-keeping and increased access to medical care for foster youth. The state must also bar the practice of housing most children with developmental disabilities in residential treatment facilities.
“Frankly, being able to see what the problem is is key and central to being able to fix the problem,” said attorney Tara Ford, co-founder of Albuquerque-based Pegasus Legal Services for Children, which represented the plaintiffs. “It’s taken us a very long time to get there.”
The class-action suit, Kevin S. v. Blalock & Scrase, was filed by Disability Rights New Mexico, the Native American Disability Law Center, and 13 foster children in 2018. According to court filings, these youth cycled in and out of emergency placements like homeless shelters and government offices.
The case was settled in 2020, establishing specific goals that must be met in the state, which has more than 2,000 foster children, New Mexico data shows.
At the time, child psychiatrist George Davis praised the settlement plan as “the first ever attempt in New Mexico to systematically apply the science of child development and the current understanding of the developmental effects of trauma to children under the state’s care.”
But by 2022, New Mexico was already falling short, according to an independent review.
Since then, progress has been slow, but has improved, Ford said. One of the many requirements of the settlement is that the state must collect better data on foster care caseloads and barriers to foster youth receiving treatment or other health care services.
Ford said that achievement cannot be underestimated.
“Excavating what’s happening on the ground is one of the big benefits of Kevin S.,” she said. “We have incredible data about what is and isn’t happening for the first time since my 30 years practicing in New Mexico.”
Another area of improvement is the increased use of “well child visits,” a key requirement of the settlement. These visits allow foster children to be seen by a doctor and evaluated for services as quickly as possible.
“When a child comes into custody, it may be that not many people know much about that child’s well-being, so it’s really important to get the child to the doctor,” Ford said. “What we see with the well-child visits is that the state can make progress on these requirements under Kevin S. when it allocates the resources and focuses on getting the job done right.”
The department as well as other defendants in the Kevin S. settlement didn’t respond for comment before publication.
Therese Yanan is executive director of the Native American Disability Law Center, another plaintiff in the Kevin S. case. She has been an active member of the settlement’s implementation team since the beginning and believes the latest set of reforms will not be the last.
Yanan also said progress is still falling short in three areas: addressing case loads and staffing issues, the lack of community-based services and the lack of home placements.
One defendant vowed to continue following the requirements of the settlement, which includes collaboration between Presbyterian Health Plan, the Children, Youth and Family Department and New Mexico’s Health Care Authority.
In an email, a spokesperson for Presbyterian Health Plan remains committed to partnering with the state agencies “to improve timely access to health care services, facilitate coordination of care, and advance meaningful solutions that are improving outcomes for children in state custody.”
As the settlement’s arbitration process unfolds,“New Mexico has a very long way to go,” Ford said. But, she added, “success is possible if the government decides to put its muscle behind coming into compliance with these requirements.”
Despite the improvements in the treatment of foster children already in state custody, the child welfare system is now under fresh scrutiny for other failures. New Mexico Attorney General Raul Torrez announced plans to sue the Children, Youth and Families Department after results of a year-long investigation by the state’s Department of Justice were released last week. The report revealed significant child safety concerns and alleges that the agency took advantage of confidentiality laws to cover them up.
It also criticized New Mexico’s emphasis on keeping families together.
“Instead of safeguarding vulnerable children, the Department has prioritized family reunification at virtually any cost,” the Justice Department report states, “returning children to dangerous caregivers with histories of substantiated abuse or chronic neglect, and who refuse treatment or services to address those underlying issues.”
