Attorney: 'Lack of buy-in from the top levels of leadership' hinders CYFD

Jan. 24—A pair of veteran attorneys who have filed a slew of lawsuits against the New Mexico Children, Youth and Families Department told legislators Wednesday a proposal to remove the troubled child welfare agency from the executive branch may not necessarily lead to better outcomes.

Michael Hart and Andrew Schultz didn't take a position on a constitutional amendment being proposed by Sen. Jerry Ortiz y Pino, D-Albuquerque, to place the department under a new, three-person independent commission. But they did say they see a path where the system can improve through a years-old class-action lawsuit known as Kevin S. The lawsuit alleged the child welfare system's practices "systematically re-traumatize vulnerable children."

"We've been hearing for quite some time that the requirements imposed by this lawsuit are too onerous. They're too time-consuming. They take too much effort," Schultz told the Senate Judiciary Committee.

"And they should, but none of them are needless," he continued, adding it was important to point out the settlement was agreed to "not just by the lawyers on this side of the table" but by the former secretaries of CYFD and the Human Services Department.

In 2018, lawyers representing 13 children in the state's care sued the state. The parties settled the lawsuit in 2020, with representatives saying the agreement provided needed reform to transform New Mexico's child welfare system.

"They agreed that these necessary elements could be met and should be met, but unfortunately, that has not yet worked out," Schultz said.

Advocates and others have previously called on Gov. Michelle Lujan Grisham to give her "full commitment" to the settlement agreement.

"Tragically, New Mexico's children continue to suffer from the state's delays and failures," George Davis, a child psychiatrist and former CYFD psychiatry director, said in a statement last year after a blistering status report from the so-called co-neutrals charged with overseeing the agreement's implementation.

Maddy Hayden, a spokeswoman for the governor, said the administration does not support removing CYFD from the Cabinet.

"Cross-collaboration between state agencies is critical to serving the most vulnerable children in our state," she wrote in an email. "The commission structure would slow down decision-making and action, when the needs of this department must be met with urgency."

Amid multimillion-dollar lawsuits and horrific and sometimes deadly cases of neglect and abuse, CYFD has been under increased scrutiny as lawmakers propose reforms they say the executive branch of government continues to resist.

Rachel Mercer Garcia, the Legislative Finance Committee analyst for CYFD, told lawmakers settlements for CYFD claims over the last few years total roughly $12 million.

"Within the executive budget request, there is a special appropriation request for $20 million to address legal settlements," she said. "It is our understanding in speaking with risk management at the General Services Department that there are currently about $17 million in pending liabilities associated with seven cases."

The numbers could be even higher.

Mercer Garcia said General Services reported instances in which CYFD represents itself and doesn't go through risk management.

"Some of those things aren't ... reported on the Sunshine Portal, and so we are not certain about all of the potential outstanding liabilities," she said.

During this year's session, lawmakers are poised to consider a constitutional amendment asking voters whether to remove the agency from the governor's oversight.

Sen. Joe Cervantes, a Las Cruces Democrat who chairs the Senate Judiciary Committee, organized Wednesday's presentation, which was titled "Children, Youth and Families — The Cost of Inaction and Silence."

"Too many of us have heard for many, many years, 'We're going to reorganize. We're going to restructure. We've got a new plan. We've got a new team. We've got new ideas.' And as Mr. Hart pointed out, the results are the same, and the outcomes are the same," he said, directing his comments to CYFD Secretary-designate Teresa Casados.

"The patience is thin," said Cervantes, who noted Casados has been on the job only seven months, though she has been key part of the Lujan Grisham administration since the governor's first term, serving for years as the governor's chief operating officer.

"I assure you the patience is very, very thin," Cervantes said.

Casados declined an interview request after the hearing, but an agency spokeswoman wrote in an email CYFD has "serious concerns that moving CYFD to a commission puts the voice of the state's most vulnerable population on an island of its own."

"This would severely limit the coordination and collaboration with other critical departments," Jessica Preston wrote. "It removes CYFD from Cabinet-level conversations at the executive level, limits participation in statewide strategic planning and establishes a bifurcated process for the executive director, creating more bureaucracy."

Child welfare advocate Maralyn Beck, founder of the New Mexico Child First Network, said she and other advocates are indebted to Cervantes for creating a space to discuss one of the most pressing issues in the state.

"Yet, unfortunately, it went to waste," she said after the hearing.

"I am so disappointed that all we proved is that these children and this crisis really are not a priority," she said. "The governor won't add CYFD to her call [of legislation to consider during the 30-day session]. The agency refuses to follow the Kevin S settlement agreements and three [Republican committee members] couldn't even be bothered to show up to committee and hear solutions. It's demoralizing."

Though not a member of the committee, Sen. Crystal Brantley, R-Elephant Butte, sat in the audience and listened to the discussion.

Hart said the challenges CYFD faces are "enormous."

"I think everyone in this committee and everyone in this building knows that they are enormous challenges that take a lot of focus, a lot of dedication and a lot of thought and professionalism," he said.

Hart's law partner, Kelly Sanchez, said it's the firm's goal "to do whatever we can" to get CYFD into a place where abuse and neglect cases are a thing of the past.

"Mike and I often talk that we would love nothing more than to have to change our area of expertise and shift gears and write wills from now on," she said.

Schultz echoed the sentiment.

"I would love nothing more for the rest of my career to never see a plaintiff's foster abuse case again," he said. "But the truly sad part is that we have discovered that no matter how many lawsuits we file, no matter how many injured and deceased children we have represented, no matter how much money we are able to recover to hopefully improve their lives and the lives of their families — sadly, those lawsuits in and of themselves have not been able to adjust the system that we have been suing."

Schultz said he and Hart are hopeful CYFD and the Human Services Department "will continue to work with us and, most importantly, to work with the co-neutrals." He called them nationally recognized experts who have successfully transformed child welfare departments in other states.

"It is time for the state of New Mexico to listen to their leadership and to take heed of the very, very specific recommendations so that they can put Kelly, Mike and I out of business," he said.

Asked the difference between New Mexico and other states that have had success, Schultz said he was reluctant to speak on their behalf.

"If you were to talk to the co-neutrals, I think what you would hear is they simply have never experienced the lack of buy-in from the top levels of leadership," he said.

Follow Daniel J. Chacón on Twitter @danieljchacon.