Copyright © 2018 Albuquerque Journal
Thousands of abused or neglected children in New Mexico are removed from unsafe conditions at home only to end up in a “broken” state-run foster care system that fails to treat their trauma and, in some cases, puts them in inappropriate or overly restrictive housing where they continue their downward spiral.
Some are locked in, drugged and physically restrained.
Those are among the allegations in a 95-page proposed class action lawsuit filed Saturday in U.S. District Court in Albuquerque against the state Children, Youth and Families Department, which runs foster care, and the state Human Services Department, which oversees Medicaid treatment for children in state custody.
“New Mexico has profoundly and consistently failed to fulfill the federal legal obligations it owes to the foster children entrusted to its care, with tragic and enduring consequences for the health, safety and life chance of a generation of the nation’s most vulnerable children,” says the lawsuit filed by a group that includes New Mexico child advocates and their attorneys.
CYFD spokesman Henry Varela on Saturday had no immediate comment about the lawsuit.
“We haven’t been served, and we’re not even aware of it, especially if it’s just been filed,” Varela told the Journal.
The lawsuit, which is filed on behalf of abused or neglected children in state custody, says that 4,737 children spent time in foster care in New Mexico during the 2017 fiscal year.
While a handful of tragic cases in which CYFD failed to take abused or neglected children into custody have made headlines in recent years, what happens when vulnerable children are removed from their homes by CYFD is less public, because their case files are confidential by law.
The new lawsuit contends that some abused and neglected children end up with foster families who lack the training, ability and support to care for them.
Some children taken into state custody are housed, at least temporarily, at CYFD offices and emergency shelters. Others end up in residential treatment centers – some of them out of state – where they can be subjected to psychotropic drugs and physical restraint. None of those placements is designed for long-term care or to help treat the child’s trauma, the lawsuit states.
The result: Children are situated in “overly restrictive environments, where they may suffer additional trauma from the effects of restraint, seclusion or even violence,” the lawsuit says.
“This grim pattern is the inevitable consequence of CYFD and HSD’s failure to recruit, license, train and support sufficient numbers of appropriate foster care placements and its failure to hire, train and support staff and services providers in sufficient numbers and with appropriate expertise,” the lawsuit states.
The lawsuit doesn’t seek monetary damages but asks for court intervention to ensure children taken into state custody “avoid retraumatization” by receiving timely and adequate mental and behavorial health treatment. And the lawsuit wants CYFD to ensure children receive “safe and stable placements that are the least restrictive appropriate to their needs.”
The lawsuit names as plaintiffs 13 foster children and two nonprofit organizations, Disability Rights New Mexico and Native American Disabilty Law Center. The child plaintiffs, who range from under 2 years old to 17, are identified by pseudonyms only.
For example, the lawsuit alleges:
• One child plaintiff named Diana D. has been transferred to at least 11 short-term, inappropriate placements over a two-year period, including emergency crisis shelters, treatment foster care, resident treatment facilities and multiple psychiatric hospitals.
• Plaintiff Kevin S. has had at least 11 placements during two stints in state custody. The second time in 2016, he was 12 years old and spent a week in an emergency youth shelter for residents age 16 to 21. After that, he spent two nights sleeping in a CYFD office, which had neither a formal sleeping place nor a shower.
“Due to the fact that CYFD staff are not equipped to securely monitor children in the office overnight, Kevin S. was able to run away and was found dodging in and out of traffic.”
CYFD then sent Kevin S. to a residential treatment center in Colorado, where he was repeatedly harmed by both staff and other residents.
• Plaintiff Olivia L.’s aunt became her foster parent and repeatedly asked for support services from CYFD but received none. After less than one month, the aunt requested her niece be removed from the home.
“When CYFD does place children with foster families … the agency fails to provide foster families with the support and trauma-informed training necessary to equip the foster parent to care for the child,” the suit says. “As a result, foster parents often feel they cannot adequately meet a child’s medical, mental health and behavioral needs and have no choice but to request a child’s removal.”
After Olivia L. was removed from her aunt’s care, “Olivia L. was then cycled through multiple short-term shelters and was raped by two adults at one of those shelters,” the lawsuit alleges.
The lawsuit alleges that HSD’s failure to adequately ensure timely medical, mental health and behavioral health services for children contributes to CYFD’s failed placement practices.
“As a result, the mental and physical health of children in CYFD custody deteriorates, placements become unsustainable, and children are unnecessarily removed and cycled through progressively more restrictive placements.”
“New Mexico has the highest rate of childhood trauma exposure in the country, with 18 percent of all children in the state having experienced three or more significant traumatic experiences,” the lawsuit states.
Under the current system, New Mexico’s child welfare practices “systematically re-traumatize vulnerable children. The predictable result of New Mexico’s failure to recruit an adequate number of foster care parents has been to subject children to a series of temporary placements in which any bonds they can form with caregivers are promptly broken.”
Children are placed in residential treatment centers “not because of medical necessity, but because no other placement options are available.” And residential treatment centers are among the most restrictive placements for children in state custody, the lawsuit states.
Moreover, CYFD is required by law to put a preference on placing Indian children with a member of their family or with their tribe but has not done so because it hasn’t recruited enough Native American foster families.
Compounding the problem, the lawsuit says, is that New Mexico “has failed to adequately train its staff and foster parents on childhood trauma or to help them in dealing with the secondary trauma that they themselves often suffer.
“Ill-prepared to understand and respond to trauma, those on the front lines of New Mexico’s child welfare system may inadvertently subject children in their care to additional trauma.”
Since 2013, the state Legislature has pumped nearly $6 million into CYFD’s Protective Services Division for additional investigators and permanency workers at a time when the majority of state agencies experienced reduced funding because of declining state revenues, according to a 2017 Legislative Finance Committee report.
Plaintiff Kevin S. was repeatedly restrained, often for over an hour at a time, in his residential treatment center in Colorado, the lawsuit alleges. As a result, he appeared at a court hearing with bruised eyes and other facial wounds.
Chemical restraints, similarly dangerous to children’s heath, are routinely used on children in CYFD custody, the lawsuit alleges.
“For example, staff at one of the largest residential treatment centers in Albuquerque routinely use or threat to use ‘booty juice,’ a sedative or other psychotropic medications,” the lawsuit states.
Once CYFD sends foster children outside the state to residential treatment centers, there is little to no monitoring of the cases, the lawsuit alleges.
Even though CYFD received multiple incident reports detailing how Kevin S. was repeatedly harmed at the Colorado residential treatment center, CYFD kept him at this placement for a year, the lawsuit says.
Afterward, due to CYFD’s inability to secure a placement in New Mexico, CYFD subsequently sent Kevin S. to another out-of-state residential treatment center in Utah.
Across his placements, the lawsuit states, the 14-year-old has received only phone counseling with his mother, inadequate counseling or no counseling at all.
Looking for a wake-up call
In 2005, the state resolved a 25-year-old class action lawsuit against CYFD that was filed over allegations that children were languishing in foster care instead of being adopted.
Now New Mexico joins a number of other states, including Texas, Oklahoma and Arizona, that have been sued in recent years over alleged state foster care failings, including the lack of proper placements for children.
Child advocates involved hope the New Mexico lawsuit will be a wake-up call to state leaders.
“This lawsuit exposes where many of the problems lie and sheds light on the steps we need to take as a state, as a community,” said F. Michael Hart, a longtime child welfare attorney in Albuquerque. “We can litigate about who is at fault and who has failed in fulfilling responsibilities. Other states have chosen that path. We believe that approach only wastes time and squanders limited resources when we all know what needs to be done and can start working together now.”
“The abused and neglected children of New Mexico will continue to suffer needlessly if we hesitate any longer.”
State officials are well aware of the failings in the system, the lawsuit alleges.
CYFD officials in recent years have touted improvements, but the lawsuit contends that federal court intervention is needed to overhaul the system before more children are harmed.
“CYFD and HSD know their broken child welfare system is inflicting harm on the children in its care,”the lawsuit states, “and they also know how to fix it.”