Children's Advocates Seek Contempt of Court Finding Against New Mexico Foster Care...

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Latest independent review shows agency still failing to find permanent homes for foster children languishing in child welfare system.

(October 21, 1999, Albuquerque, New Mexico) Children's Rights, a national advocacy organization for children, and Albuquerque attorney Robert Levy today filed a motion in federal court seeking a contempt of court finding against the New Mexico Department of Human Services (DHS). The children's advocates charge that DHS's Children, Youth and Families Department (CYFD) has continually failed to comply with a court order to find permanent adoptive homes for children in foster care. Filed in U.S. District Court for the District of New Mexico, the motion offers as evidence of non-compliance a series of reports on CYFD by a court-appointed neutral third party. Those reports show the agency is refusing to address long-standing violations of the rights of children and is failing to provide required services to children in its custody. Children's Rights and Levy are calling for the court to appoint an outside expert with the authority to plan and take steps to ensure that the Department comes into compliance.

"Children in New Mexico cannot wait any longer for the state to make permanency plans and get them adopted," said Marcia Robinson Lowry, Executive Director of Children's Rights. "I've never seen a state fight a lawsuit as hard as New Mexico. If they had used half that energy to improve the system and help the thousands of foster children find permanent homes they could have exited from the lawsuit by the end of this year. But the state has been defensive every step of the way and is unwilling to negotiate solutions. Now we're asking the judge to intervene to force compliance and bring real change for children."

"I have concluded that the executives of CYFD have turned their backs on their agreement," said Robert Levy, of the Albuquerque firm of Geer, Wissel and Levy. "I no longer believe they are supporting their own workers, much less the children in their care. Our only recourse is through the United States District Court."

The review of CYFD was part of a plan to help the state exit from a consent decree in a 19-year old class action lawsuit, Joseph A. v. New Mexico Department of Human Services, et al. The state agreed for the first time in February 1998 to allow a neutral third party to determine the quality of its progress in meeting provisions in the consent decree. To exit the lawsuit, the agency must show at least 90 percent compliance over a nine to 12-month period in six areas: Training; Planning and Review; Adoption; Information and Records System; Staff Qualifications; and, Citizens Review Boards for Substitute Care.

The neutral third party, Sheila Agniel, has been working with a three-person Exit Review Team over the past 20 months conducting regular reviews of children's case records and interviewing CYFD workers to assess the agency's compliance with the exit plan requirements. Agniel's reports reveal that the state has failed to reach the standard of 90 percent compliance of many of the court-ordered requirements.

Key statistics in the review in the areas of Planning, Review and Adoptions include the following figures for the first quarter of 1999:

Planning and Review:

*Only 40.3% of children's cases had written assessment plans developed during the assessment planning conferences approved by a supervisor and determined appropriate by the reviewer;
*Only 58.6% of children's cases had an appropriate written treatment plan, a timely treatment planning conference, and supervisory approval;
*Only 29.6% of children's cases had an appropriate, current treatment plan reviewed every six months.


*Only 40% of the children who needed and were referred for adoption recruitment services actually received those services;
*Only 6% of potential adoptive homes had an adoptive home study completed within 150 days;
CYFD does not even maintain an accurate count of the number of children freed for adoption who do not have an adoptive home.

Computer System

Although the state has implemented a new, vaunted computer system, the neutral third party expert has found the system to be inaccurate and unusable.

Because the state has been unwilling or unable to act to address these problems, the plaintiffs are asking the court to "appoint an expert overseen by the court with the authority to institute necessary changes."

History of the Joseph A. Lawsuit

Children's Rights and Robert Levy have been fighting since 1980 for the rights of foster children in New Mexico. Using the class-action lawsuit Joseph and Josephine A. v. New Mexico Department of Human Services, et al. to force reform of the state's child welfare system, the suit focused on those children needing adoption but for whom little effort was made to secure permanent adoptive homes. A key goal of the consent decree in Joseph A. was to keep children from languishing for years in the foster care system by requiring timely, appropriate planning and establishing procedures to free children for adoption and match them with adoptive homes.

When the consent decree was first signed in 1983, it precipitated significant improvements in the Department and increased adoption efforts in a system in which they were virtually non-existent. The pace of progress slowed, however, and a 1994 study by the state's Children, Youth and Families Department's Social Services Division found that children were languishing for longer periods of time in care without being adopted. Despite these findings, in 1994 the district court terminated the consent decree. But Children's Rights and Levy appealed that decision to the Tenth Circuit Court of Appeals, which found insufficient evidence to prove that the state was complying and sent the case back to the District Court for further proceedings.

State defendants had previously claimed they were in compliance with the consent decree and were fighting to end court jurisdiction. In January 1997, a court-appointed special master issued a report stating that the 2,000 children in the state's foster care system were not receiving the services they needed and that the state should be found in contempt of court. The parties prepared for trial but agreed to try an "exit plan" to help determine whether CYFD has instituted real change and, if so, to permit the case to end, but if not, to lay the groundwork for further court action.

Children's Rights works throughout the United States in partnership with national and local experts, advocates and government officials to document the needs of children in the care of child welfare systems. Children's Rights helps develop realistic solutions and, where necessary, uses the power of litigation to ensure that reform takes place.
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