CYFD on the defensive during arbitration hearing

Nov. 10—Carmen was on her way to her "forever" home in late 2021. Or so the 15-year-old hoped after she completed treatment foster care.

Instead, her life in New Mexico's child welfare system became more uncertain and even perilous. She realized there was no such forever home waiting.

The teenager cycled through a stint with a newly licensed foster family who called 911 to remove her. She spent weeks sleeping on the floor of a state Children, Youth and Families Department office; tried to live with friends' families; and was moved to Española, where her uncle was eventually arrested for drug dealing and her aunt reportedly beat her.

The story of Carmen, who ended up running away last year and is now living in Georgia, punctuated an unusual dayslong hearing last week in Albuquerque that focused on whether the state has failed to comply with a settlement agreement designed to improve the lives of abused and neglected children and youth in state custody.

Back in 2018, Carmen's attorney, Sara Crecca, was one of the lawyers involved in a federal lawsuit filed against CYFD and the then-state Human Services Department on behalf of 14 foster children in New Mexico. They were joined by Disability Rights New Mexico and the Native American Disability Law Center in alleging the state's "broken system of child welfare" was violating the rights of children in its care. The lawsuit demanded systemic changes.

By 2020, plaintiffs dismissed the lawsuit — referred to as the Kevin S. case — after reaching a final settlement agreement with the state.

But implementation of the reforms, such as decreasing caseloads of CYFD staff, has faltered, especially with the recent increase in the number of abused or neglected kids taken into custody and high staff turnover.

The plaintiffs and two national experts hired to monitor compliance have found serious performance failures, leading to a memorandum of understanding between the parties; mediation to try to resolve disputes; and now, arbitration that could lead to the arbitrator finding the state has breached the agreement.

"This is an important proceeding, not just for the people of New Mexico but particularly for the children of New Mexico. For many, many years, New Mexico has been dead last in child welfare; that hasn't been a secret," said longtime child welfare attorney F. Michael Hart during an opening statement at the arbitration on Wednesday. The proceedings continue next week.

Hart argued that it's time for the state to be held "accountable" for the lack of progress in meeting its obligations, such as increasing the number of foster families and conducting wellness checks for all children coming into the state's custody. Once the standards are met, the state is supposed to be ensuring compliance for another two years. But that hasn't happened yet.

"We're very unhappy to be here," Hart said. "We should be winding this down now."

Eric Loman, a lawyer hired to represent the state, said there have been "good faith" efforts to comply with the "goals," which he said were "aspirational."

"We all want to have the best outcomes," Loman said in his opening statement. But he said some outcomes depend on factors beyond CYFD's control.

For example, he said, "The state cannot force people to apply for jobs."

Before testimony began, lawyers for the state objected to the proceedings being open to the public. However, the arbitrator, Albuquerque attorney Charles Peifer, granted the plaintiffs' request to open the hearing except when confidential matters arise.

Then attorneys for the state tried unsuccessfully to remove Peifer from the case, claiming he had a conflict because an attorney in his office was planning a wrongful death lawsuit against CYFD. Plaintiffs argued a recusal wasn't warranted and would delay the proceedings while a new arbitrator could be found.

Peifer, a former chief assistant state attorney general, noted that it was well known that his private law firm has been involved in child welfare issues. He said he personally screened himself off from any such litigation after he was recruited as arbitrator for the Kevin S. case by then-CYFD Secretary Barbara Vigil. She left the agency in early 2023.

By Thursday, Peifer found no cause for recusing himself, adding that his research showed the attorney in his office notified CYFD Secretary Teresa Casados and a CYFD general counsel of the potential case in late May and the recusal issue was never mentioned in subsequent pre-arbitration hearings. He told the state's attorneys: "It's a little late in the game for this issue to come up."

He added, "I intend to be fair to everybody in this case."

As an independent arbitrator, if Peifer finds there's been a breach of the agreement, he has the authority to issue certain orders. Those include orders of injunctive relief against the state.

Therese Yanan, executive director of the Native American Disability Law Center in Farmington, testified that she was "highly disappointed" with the state's progress and would personally like to see sanctions imposed.

"We thought we were entering into an agreement that was enforceable. The state would not agree to a consent decree or a court order, so we agreed to dismiss the case. But we did not release claims for any money damages for any of our clients," Yanan said.

The settlement agreement "is workable and reasonable," she added. "It's just not being implemented. They don't do the most basic things. There's a total disconnect between what is said in Santa Fe" and what is happening in San Juan County.

The lack of compliance "affects our clients every day where kids in acute care facilities stay for months beyond the time they should be transferred out ...or trying to get counseling for an 8-year-old boy in McKinley County, and nothing is happening. There's a lack of staffing," she said. "It just continues."

Crecca testified that Carmen, a pseudonym, had been placed by CYFD in treatment foster care, in which parents are specially trained to care for kids with more serious emotional, behavioral, or social challenges because of past trauma. The girl had made progress and was ready to live with a regular foster home or be adopted but endured even more trauma with the lack of a proper placement by CYFD, Crecca said.

Now nearly 18, Carmen told the Journal in a phone interview Friday that she has no plans to return to New Mexico. The Kevin S. case is important, she said, to ensure that "every kid that's out there gets what they need. They (the attorneys) are bringing up a lot of stuff that I believe will make a lot of difference."

Hart recalled during his statement last week how the state "immediately responded from the highest levels of state government" some months after the Kevin S. case was filed.

Then-CYFD Secretary Brian Blalock said, "let's sit down and talk about this," Hart said. "I think we quickly figured out that we were all on the same page, and they made it clear they had the full support of the governor."

Over the next 11 months, both sides hammered out a plan for reform, Hart added. "This largely came from them. It was their ideas, their commitment, their targeted outcomes and performance standards."

Blalock, who was appointed by Gov. Michelle Lujan Grisham in 2019, stepped down as Cabinet secretary in August 2021. Casados, the governor's former operating officer, has led the agency since 2023.