CYFD violated reform agreement, says arbitrator

Jan. 23—The state Children, Youth and Families Department has breached its obligation to implement reforms aimed at improving the lives of children taken into state custody, according to an independent arbitrator who has imposed new remedies to combat the "irreparable harm" created by the state's noncompliance.

The 34-page decision issued on Tuesday by Albuquerque attorney Charles R. Peifer comes after he listened to testimony last fall on whether CYFD and the state Health Authority violated a 2020 joint settlement agreement touted as a "groundbreaking" way to help the state "solve systemic problems that developed over not just years, but decades," he wrote.

"The systemic problems facing CYFD appear to stem primarily from a need to have an adequate and stabilized workforce and an adequate and robust network of placement options for children," wrote Peifer, a former chief assistant state attorney general.

The agreement, known for one of its foster youth plaintiffs, Kevin S., settled a 2018 federal class action lawsuit that alleged New Mexico was depriving children in state custody of their constitutional rights. Both sides agreed to settle to avoid costly litigation and potential federal oversight of the agency, wrote Peifer, and CYFD agreed to meet a set of performance standards.

But compliance with the agreement has been elusive for the agency, despite mediation, a corrective action plan and recommendations from two national experts hired by the state. The appointment of Peifer to act as an arbitrator on the case was the next step.

"The State has not taken 'all reasonable efforts' to achieve the workforce and caseload standards of the agreement," Peifer wrote. "It can and must do more..."

"Measures that in other circumstances, in other Departments, and in other contexts might be sufficient (hiring of consultants, asking for more money, fast-track hiring events, jobs fairs and reorganizations and the other steps CYFD cited in the arbitration) have proved, in the case of the challenges facing CYFD, inadequate to fix a problem that cannot be addressed by ordinary efforts."

A CYFD spokesman said in an email to the Journal on Thursday, "CYFD will continue to hold itself to the highest standard and will use the Kevin S. remedial order to target and prioritize improvements that best help children and youth in its care. While the report contends CYFD is not meeting its deadline for deliverables, it also notes progress in addressing problems highlighted in the arbitration's outcome."

Lawyers and advocates who filed the request for arbitration considered the decision a "vindication," said Albuquerque attorney Sara Crecca.

"This is really a breakthrough decision, particularly given the governor's and the Legislature's interest in addressing issues with CYFD," said Tara Ford, an attorney who works for Public Counsel in Los Angeles. And the remedies set forth by Peifer are legally enforceable, she said, so that children's attorneys can go to court and sue if the state fails to comply.

"I find, based on the evidence presented at the arbitration," Peifer wrote, "that the children in the custody of CYFD are subject to irreparable harm arising from the State's failure to comply with the Kevin S. agreement as detailed in this decision.

"That harm arises directly from excessive caseloads for CYFD caseworkers and the persistent failure of the State to hire and retain an adequate number of caseworkers, and a failure by the state to develop and maintain an adequate supply of foster homes leading to the State sending children to be housed in group settings, including CYFD offices, and children being deprived of their right to timely medical checks, that if performed, would identify medical and behavioral conditions for which the state has a legal obligation to provide treatment."

Attorney F. Michael Hart, who was among the lawyers and two nonprofit advocacy groups who filed the class action lawsuit in 2018, said the order helps create a path to compliance for CYFD.

Peifer is requiring CYFD to take specific actions and meet certain deadlines in the coming months.

For instance, he wrote, CYFD must "take all steps necessary to request adequate funding from the 2025 Legislature." The agency also must submit a plan by April 30 for creating a new classification of worker to help handle on-call, emergency and overnight work, such as taking care of children who are staying in CYFD offices because of a lack of suitable foster homes.

CYFD officials say progress has been made, including better training of employees, a department reorganization and the ongoing development of a new foster family program aimed at children who need more specialized care.

The children's attorneys proposed a range of remedies to Peifer, such as appointing a receiver to manage the state's child welfare system. But Peifer concluded that wasn't "appropriate or necessary at this time," in part because the parties have expressed a willingness to work together.

But Peifer wants to hear from the two child welfare experts involved in the case as to whether CYFD and, potentially, the state Health Care Authority, would benefit from the creation within CYFD of an Office of Ombudsman — an idea that Gov. Michelle Lujan Grisham has opposed in the past.

Peifer said the office could focus initially on identifying barriers to workforce development, retention and foster home retention and development.

"An ombudsman could investigate, for instance, the source of bottlenecks in the pipeline of available foster homes, so that effective solutions could be implemented by Department leadership. An ombudsman could also identify and help develop strategies to remove frustrations identified as barriers to retaining caseworkers and foster home families," he wrote.

The "positive steps" that have been taken by CYFD, such as holding job fairs and enhancing training of new child welfare workers, aren't enough to lead to "meaningful progress" toward stabilizing the CYFD workforce, Peifer wrote.

"In this arbitration, the stakes for the beneficiaries served by the Kevin S. agreement are the highest possible: the failure of the State to have an adequately trained and staffed workforce means the State is failing children whose lives and emotional well-being are wholly entrusted to the State. The children cannot advocate for themselves, they are already in most cases the victims of abuse and neglect and therefore already traumatized when they come into state custody," he wrote.

"The problem of hiring and retention of qualified workers, moreover, requires many things to be fixed at once. A piecemeal or incremental approach that addresses problems serially will not work. The Legislature must fund change. Workers must be recruited, they must be onboarded and trained before they find and take another job; they must be supervised and be supported."

-This story has been corrected to reflect that arbitrator Charles R. Peifer is a former chief assistant attorney general