Jul. 5—It’s been some six months since an outside arbitrator stepped in to require more accountability from the state Children, Youth and Families Department in its protection of abused and neglected children.
And in that time, CYFD convinced state lawmakers to spend $100 million more over last year’s budget to shore up protective services staff, increase training, implement ways to decrease caseloads and cut office stays for children in custody.
But in that same period, three children in state custody have died, progress has been delayed by bureaucratic snags, and on Thursday, independent arbitrator and lawyer Charles R. Peifer ended a three-hour compliance hearing with a sobering assessment.
“I am not yet seeing any measurable progress from six months ago,” Peifer said, “which means to me, the state must do more.”
Peifer is overseeing the state’s compliance with the Kevin S. settlement agreement created five years ago by CYFD and attorneys representing 14 foster youth who contended their constitutional rights were being violated by conditions created in state custody.
As part of the agreement, two national experts, called co-neutrals, are being paid by the state to collect data, conduct interviews, assess compliance, advise the state and make recommendations for reform.
The experts, Kevin Ryan and Judith Meltzer, appeared via Zoom at Thursday’s hearing, with Meltzer telling Peifer, “For us, this has been a frustrating five years. We would have hoped by this point that the system would be in a better place than it is right now.”
Ryan, with Public Catalyst Group of Iselin, New Jersey, said he and Meltzer, of the New York-based Center for the Study of Social Policy, have made “numerous, numerous recommendations” over the past five years as to what CYFD’s priorities should be. CYFD has supported those in many instances, he said.
“The challenge has been the implementation,” he said.
During repeated interactions with “hundreds and hundreds of (CYFD) workers and in field visits,” Ryan said, “one of the challenges we confronted is workers increasingly saying, ‘Why are we still talking to you and nothing’s changed? Why are caseloads so high? Why are children still being housed in offices?'”
“The credibility of this effort is so seriously undermined by the number of years that have passed without meaningful change in the offices that we really need to integrate a sense of profound urgency into the implementation of stabilizing a well-trained workforce,” Ryan said.
CYFD Secretary Teresa Casados told Peifer that her agency is making strides, such as reducing the average number of children staying in agency offices from about 17 to 18 statewide to 12. The Legislature this year approved funding an extra 25 positions to work in offices, requiring specialized training of the employees to deal with crisis response and suicide risk assessments.
Ryan said none of the states that have substantially improved their systems for children and families have done so without creating a well-trained, stable workforce with reasonable caseloads.
The two experts have worked as federal court monitors and advised states such as Oklahoma, New Jersey, Michigan and Texas.
“Three things were always key (to success),” Ryan said.
“First,” he said, “there was an ‘accountability agent,’ such as a federal judge, who engaged with the parties, holding hearings and receiving expert reports to ensure compliance.”
That hasn’t happened in the Kevin S. case because there is no federal judge overseeing the progress.
As part of the out-of-court settlement, the parties first tried negotiations and dispute resolution. Peifer was selected last year after attorneys for the foster children asked for binding arbitration, contending CYFD’s continuing failure to meet its goals was unacceptable.
The second element, Ryan said, “is there was a very committed governor in all these instances … who was very focused on implementation and made sure that the executive branch was working full throttle; then thirdly, there was leadership at the agency, focused on the commitment and driving that forward with a master plan that was designed to essentially achieve compliance.”
“We do think there needs to be ongoing outside accountability through you, Mr. Peifer,” Meltzer said.
Tara Ford, an attorney and child welfare specialist with Public Counsel of Los Angeles, urged Peifer to continue holding CYFD accountable by instituting remedial orders like he did in January. At the time, he directed CYFD to request adequate funding from the Legislature for caseworker hiring and retention. He also implemented deadlines in areas of staffing for foster family recruitment and reporting of well-child checks for children coming into state custody.
“Plaintiffs understand that three children have died in foster care (so far this year) and so many others have been living in unsafe congregate care settings and not getting the care they deserve,” Ford said. “The result of CYFD’s broken promises is tragic and absolutely intolerable.”
She was referring to the suicide in April of a 16-year-old boy living at a group home licensed by CYFD in Albuquerque; the suicide on May 16 of a 17-year-old girl in state custody; and last month’s death of a 10-month-old child in foster care, which is still under investigation by CYFD.
“This is very hard work,” said Ryan, who urged New Mexico to look at what can be accomplished in the final 18 months of Gov. Michelle Lujan Grisham’s term in office. Casados is the third Cabinet secretary to head the agency since Lujan Grisham took office in January 2019. The governor was re-elected in 2022.
Casados told Peifer she wants to concentrate for the next 18 months on workforce training and stabilization. “I think that is really key to all of the other areas that need to be addressed,” she said.