Governor's 'bold' directive for substance-exposed babies draws mixed reactions

Seemingly overnight, Gov. Michelle Lujan Grisham has upended New Mexico’s flawed approach to protecting high-risk substance-exposed newborns.

But the new approach, which provides for court review before the infant can go home, already has its critics. They say the urgency to keep newborns from harm is laudable, but what the governor touts as “bold” action may make matters worse.

Lujan Grisham’s directive last week bars hospitals from sending home high-risk newborns exposed to fentanyl or methamphetamine or with fetal alcohol disorder. Instead, they will be placed in the custody of the state’s Children, Youth and Families Department for 72 hours and ultimately a judge will decide their placement. If the infant goes home, a state health worker will conduct safety monitoring, and family services will be provided.

“We believe it will make a real difference. We are shifting the presumption that with voluntary supports, that the family is safe,” Lujan Grisham told the Journal last week. “This is the reverse — that the family is not safe until they get into behavioral health care, until they get into treatment, until they do something different.”

In a state with more than twice the rate of newborns exposed to drugs than the national average, the conventional wisdom of keeping families together at any cost is “a bridge too far,” Lujan Grisham said last week. “They never anticipated guns, fentanyl and meth, all in the same household.”

The state had the third-highest rate in the U.S. of substance-exposed newborns in 2022, 14.7 per 1,000 compared to a national rate of 5.4, according to the most recent federal data available.

The governor’s new policy could cover some 390 high-risk substance-exposed newborns a year in New Mexico, state officials estimate.

Some child welfare advocates worry that the new approach will discourage mothers with substance use problems from seeking care at a hospital because they fear losing custody of their children. They also contend that separating a mother and baby could traumatize both.

“I feel like this approach reinforces a punitive model of care,” said Micha Bitsinnie, policy manager for Bold Futures, a nonprofit that works with addicted women. “It risks deepening cycles of family separation and criminalization. They know it means being investigated and losing their child.”

In 2019, New Mexico enacted the Comprehensive Addiction and Recovery Act (CARA) law that took a public health strategy rather than a child protective approach by treating drug and alcohol use during pregnancy as a disorder. Hospitals have been required to develop plans of care for substance-exposed newborns, referring families to voluntary treatment. As a result, CYFD’s removal of infants from families fell below the national rate.

But two out of three families placed on plans of care were not directed to or weren’t accepting substance abuse treatment services, according to a Legislative Finance Committee evaluation in October 2023. The state’s birthing centers were also under-identifying drug-exposed babies by up to 40%.

So the Legislature earlier this year voted to put more teeth in the law by next summer that will move the primary responsibility for the program to the state Health Care Authority. Families that don’t follow treatment plans will be reported to the CYFD for a “family assessment.”

Since CARA was enacted in 2019, 22 babies have died from maltreatment, according to legislative testimony earlier this year. That doesn’t include a 4-month-old and 10-month-old, whose deaths in June have triggered a CYFD investigation and public outcry.

“I think we have to do all we can to try not to lose any more children,” said state Sen. Linda Trujillo, D-Santa Fe. “I applaud the governor for taking a strong stand.”

Trujillo, one of the sponsors of the latest CARA legislation, said the 72 hours provided by the governor’s new directive will give a team that includes the DOH and CYFD enough time to thoroughly investigate living conditions in the homes where drug use may be prevalent.

Within three days, the findings are to be presented to a state Children’s Court judge, who will decide where, and with whom, the newborn should live.

The judges would be alerted to prior CYFD cases involving the family, if any. If the infant is sent home, CYFD would ask the judge to issue a court order requiring the caregivers to obtain necessary treatment to mitigate the substance-abuse risks.

The plan relies on the resources of several state agencies, including the chronically short-staffed CYFD, which experienced a 39% turnover rate among protective services staff, according to the most recent data. The state is also struggling to retain foster families and recruit more.

“I’m deeply concerned about the lack of capacity (within the system),” said child welfare attorney Sara Crecca of Albuquerque. CYFD investigators already have high caseloads, there are too few foster homes, and service providers often have wait lists, she noted. “That is not to say there shouldn’t be state intervention to protect children. But our administration has failed to develop the capacity to serve every kid in the state that needs to be served.”

Success of the directive also relies on the cooperation of the state’s hospitals, which must report to the state while the baby is still in the hospital and cannot discharge the infants until CYFD assumes temporary custody. According to a July 7 memo to CYFD protective services staff, there will be no exceptions.

Officials at the state’s largest hospitals said this past week they were studying the directive but offered little additional comment.

A Presbyterian Healthcare Services official said the state’s largest hospital system is studying the directive and intends to work with the state.

“We are still learning the details of the Governor’s newly announced initiative, but we fully support efforts that protect infants, connect parents to the services they need and foster healthier outcomes for our communities,” said Holly Muller, Presbyterian’s senior vice president and chief nursing officer. “We look forward to learning more about the directive and are aligning our discharge planning practices to support this important goal.”

University of New Mexico Hospital officials said through a spokesman that they are studying the policy but offered no additional comment.

Kari Armijo, secretary of the Health Care Authority, said hospitals and birthing centers are required under their licensing agreements to provide safe-discharge planning for every patient, including newborns.

“The Health Care Authority is going to actively insist that the health care systems do something different to ensure the safety of every baby that is born,” Armijo said Wednesday.

Former Sen. Jerry Ortiz y Pino, D-Albuquerque, said the state appears to have taken the action without consulting with hospitals and child-care providers.

“They keep making plans that don’t involve the people who know what’s going on and who can give them some good ideas,” Ortiz y Pino told the Journal.

Most of the high-risk children in New Mexico are born in a few large hospitals in metro areas equipped to handle complex births, Ortiz y Pino said. The new policy is likely to discourage mothers from seeking care at those hospitals, he said.

“If you start off by putting every kid in state custody, you’ve made instant enemies of every one of those families, and you made the work of treating them much, much harder,” he said.

Teresa Casados, CYFD secretary, said the state has good alternatives for providing treatment to addicted mothers without breaking up families. Some treatment facilities allow an infant to remain with its mother while she receives drug treatment.

“We also would look for kinship caregivers within that family, if that were a safe alternative,” Casados said. “If not, then the option would be a temporary fostering situation.”

Lujan Grisham said the recent deaths of babies in June added to “this sense of urgency and bold shift.”

“This is really about interrupting the status quo and changing the way in which we assess and deal with this risk.”