Advocacy groups sue New Mexico agencies, which claim foster care improving

September 25, 2018

The state’s Human Services and Children Youth and Families departments said in a joint statement Monday that a lawsuit accusing the agencies of essentially failing New Mexico’s foster children at every turn is “out of step with reality.”

The departments said they have made “significant [sic] progress in improving the foster care system and are constantly working to improve services for the children and families of New Mexico.”

The emailed statement came in response to a proposed class action filed Saturday in federal court by Disability Rights New Mexico and the Native American Disability Law Center against CYFD Secretary Monique Jacobson and Human Services Department Secretary Brent Earnest.

The complaint accuses the departments of “re-victimizing” children in state custody by shuffling them around, failing to provide proper mental and physical health care, and placing them in settings where they have been physically and sexually abused.

The advocacy groups sued on behalf of 13 children they say were failed by a “broken” system and seek to have it designated a class action on behalf of “trauma-impacted children” in state custody.

The 95-page filing was not a public document as of Monday, according to the U.S. District Court clerk’s office, but was being shared by the plaintiffs with selected news outlets.

It states that CYFD fails to provide the support foster children need to be safe and healthy, locking them in a “vicious cycle of declining physical, mental and behavioral health and increasingly inappropriate, restrictive and punitive placements and treatment.”

The plaintiffs say the state fails the children in its custody in three main ways.

First, the suit says, the state lacks a system to ensure stable placement in supportive home environments, meaning children are routinely cycled through numerous short-term shelters, foster homes, residential treatment centers and hospitals, making it difficult for them to form and sustain relationships.

Second, the plaintiffs claim, the state lacks a functioning system to meet the children’s medical and mental health needs while they are in custody, leading to a worsening of their physical and mental health and behavior, making it harder to find appropriate places to for them to live.

Lastly, the advocates say, the state lacks a system for screening for, diagnosing and treating the trauma experienced by most children who wind up in state custody — including physical and sexual assault, witnessing drug use and domestic violence, the loss of a parent — with the effect that it is worsened.

These three failures, the lawsuit says, combine to compound the children’s existing problems “with tragic and enduring consequences for the health, safety and life changes of a generation of the nation’s most vulnerable children.”

The complaint gives examples of the hardships suffered by the 13 children — ranging in age from one to 17 years — who are referred to by first name and last initial, in the complaint

For example, the lawsuit says:

— Kevin S., 14, cycled through “at least eleven placements during his two times in state custody,” including “two nights in a CYFD office with neither a sleeping space or shower” and a residential treatment center in Colorado where the lawsuit says, he was “repeatedly harmed by both staff and other residents,” and was “restrained multiple times per week for substantial periods of time.”

— Chris W., 14, of Torrance County has been in nine different setting since he entered state custody after his mom died of asthma in 2016 — including short-term youth shelters in Taos and Albuquerque— but has yet to receive grief counseling to help him deal with his mother’s death.

— Diana D., 16, of Farmington is an enrolled member of the Navajo Nation but none of her 11 placements have been with a Navajo family or other Native American care provider. Diagnosed with multiple mental health disorders, Diana has been prescribed nine different psychiatric medications in one year, including medications intended to treat “medication-induced tics.” In her current home, a residential treatment center, she is subject to “blanket search,” in which she must strip to her underwear behind a blanket every day after school.

— Jennifer H., 17, as been in nine different placements since 2016. After she reported being sexually abused by a foster father, the state was unable to identify a single placement that would accept her, and the department sent her to a residential treatment center “approximately one thousand miles away in Missouri.”

In their joint statement, the state agencies pointed to increases in the number of foster parents statewide — up by 330 since 2010 to 1,325 statewide — and 100 field workers added since 2015 — and a reduction in turnover — from 33 percent to 25 percent — as evidence that the departments are working to improve the state’s foster care system.

The departments also said they increased the daily rate paid for treatment foster care by 20 percent in July “to incentivize more high quality treatment foster care homes,” and are “piloting a high intensity wraparound program” for children with “serious emotional disturbance” and other risk factors.

The advocacy groups aren’t seeking money, but are asking the court to order the state to implement a “trauma-informed care system for New Mexico’s trauma-impacted foster care children.”

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