A court-appointed arbitrator says New Mexico’s foster care, juvenile justice and child welfare programs remain out of compliance with a 2020 settlement.

Austin Fisher, Source New Mexico

This article was originally published by Source New Mexico.

New Mexico’s foster care, juvenile justice and child welfare programs have not made significant progress in the last six months toward complying with a landmark settlement agreement, a court-appointed arbitrator found this week.

The 2020 “Kevin S” settlement stems from a lawsuit filed two years prior against the Children, Youth and Families Department, along with the agency now called the Health Care Authority, which alleged state officials had failed to uphold their legal obligations to keep children in their custody safe.

Charles Peifer, the Albuquerque attorney appointed as the arbiter in the case, found in January that New Mexico failed to meet the settlement’s requirements. Then after hearing from both sides in July, Peifer on Monday issued a second order finding that the state still “has not made significant progress in its efforts to come into compliance” with the settlement’s terms.

Those terms include: hiring and properly training caseworkers to determine a child’s needs; finding foster families to care for them; and connecting children to services.

“The evidence and submissions provided to me establish that the State is preparing to make progress and has indeed obtained additional funding that will assist in future progress, but that, measured by outcomes for children, measurable and verifiable progress is lacking,” Peifer wrote. “Children and youth remain at imminent risk of harm and time is of the essence.”

The state Legislature in its most recent session created a new Office of the Child Advocate, attached administratively to the state Department of Justice, to provide more oversight of CYFD.

In a meeting on Tuesday with state lawmakers on the interim Legislative Health and Human Services Committee, Native American Disability Law Center Executive Director Therese Yanan, who represents one of the children in the initial lawsuit, said Monday’s order represents a measure of accountability for the state’s failures.

“This system is not working for our kids,” Yanan said. “We are also hoping that this committee and other committees can hold the state to account as well, because there needs to be some accountability.”

Dr. George Davis, a child and adolescent psychiatrist and former CYFD psychiatry director, said it’s impossible for the state to comply with the settlement so long as caseworkers are overworked, foster families turn over and children don’t receive the services they need.

Davis said many foster families withdrew from the system during the COVID-19 pandemic “and they have never, ever recuperated.” Even though the state brought on 134 new foster families in 2024, he said, approximately the same number left in the same period.

Without foster families to care for children, Davis said, authorities place them into either residential treatment centers or congregate facilities, which are “not a place to raise a child” and “not a substitute for foster care.”

“Beds are not what we need,” he said. “Families are what we need.”

Jesse Clifton, an attorney with Disability Rights New Mexico, which represented another plaintiff in the case, told the committee one of the main reasons his organization joined the lawsuit was New Mexico’s placement of children into residential and congregate settings, which he called “needless institutionalization of youth.” He said state officials continue to propose expanding congregate care in New Mexico, but doing so won’t solve the problem.

“It does stand to reason to expand that network of providers — especially if we’re not also making the same efforts and investments in community-based mental health services — that we’re going to see a return to that practice,” Clifton said.

Under Peifer’s order, CYFD and the HCA must make “continual and continuous progress” to comply with the settlement between now and Dec. 31. He will hold hearings in October and November to check their progress and will again determine whether they have complied in January.

A spokesperson for CYFD told Source NM on Wednesday that the agency is reviewing Peifer’s findings, compiling the requested data and will respond by the deadline imposed in the order.

“We are disappointed by these findings, some of which are troubling, but we intend to address them as best we can and continue improving the way in which we protect New Mexico children in vulnerable circumstances,” CYFD Deputy Director of Communications Jessica Preston said in a statement.

Austin Fisher is a journalist based in Santa Fe. He reports for Source New Mexico.