Albuquerque, NM – On March 26, 2020, a landmark and innovative settlement was reached between foster children, disability rights advocates and the State of New Mexico which comprehensively and collaboratively creates a system of child welfare built around the principle of trauma-responsiveness. To meet this aim, the settlement calls for integrated child welfare and Medicaid systems, and expansion of the state’s commitment to Native American youth.

The settlement resolves a lawsuit that began in January 2018, when  fourteen foster youth, joined by Disability Rights New Mexico and the Native American Disability Law Center, lodged a complaint against the State of New Mexico’s Children, Youth and Families Department (CYFD) and Human Services Department (HSD) – then under a previous administration. That case, filed in the U.S. District Court for the District of New Mexico, is now entitled Kevin S. et al. v. Blalock, et al., No. 1:18-cv-00896. The lawsuit sought to compel the State of New Mexico to fulfill its legal obligations to provide the state’s foster children with the essential care and stability that they need to grow and thrive.

Children in or entering the foster care system are overwhelmingly likely to have experienced complex trauma. Medical and social science research has established that exposure to trauma has significant impacts on brain activity, function and development, particularly in the developing brain of a child or young person. Plaintiffs fought to ensure that the State of New Mexico would exercise special care not to retraumatize children in its custody and to affirmatively build a system designed to heal children’s past traumas. There are 23 Indian tribes in New Mexico: Kevin S. also sought to protect the rights of Native children under the Indian Child Welfare Act (ICWA).

The settlement was made possible by the work of a tireless team of New Mexico and national litigators. Tara Ford, Clinical Supervising Attorney for the Youth and Education Law Project  (YELP); Kathryn Eidmann of Public Counsel; and Grant Davis-Denny of Munger Tolles and Olsen were co-lead counsel. Over the past two years, YELP students Sarah Brim (’18), Sarah Dohan (’20), Vanessa  Guerrero (’19), Emily Hayes (’19), Michael Moorin (’20), Jean Richmann (’18), Michael Ulmer (’19); and Cameron Vanderwall (’18) became critical members of the Plaintiff counsel team, participating in team meetings, talking with foster youth in New Mexico, researching cutting edge legal issues, and helping to formulate a settlement proposal.

The New Mexico’s Governor Michelle Lujan Grisham has made improving the lives of children and youth a top priority of her administration – and her Cabinet Secretaries for CYFD, Brian Blalock (SLS ‘2007 and YELP alum) and HSD, David Scrase, had goals and initiatives that were aligned to the goals of the lawsuit. Together the parties identified the needs for trauma-informed, behavioral health-focused reforms and for addressing the needs of Native youth, specifically. This collective and collaborative vision between advocates and agencies made this settlement agreement possible, and serves as a hopeful model for other states and advocates to do the same.

Dr. George Davis, a child psychiatrist who has spent nearly thirty years working with children in New Mexico stated:

The recently agreed upon effort to reorganize and professionalize the child welfare system is the first ever attempt in New Mexico to systematically apply the science of child development and the current understanding of the developmental effects of trauma to children under the state’s care. The new agreement represents a voluntary partnership between the state and the plaintiffs that proposes to incorporate both current science and best practices.

Children are susceptible to trauma and loss in a way that can permanently change the course of their development. Throughout childhood, but especially in the first five years, critical brain development takes place that will potentially determine for a lifetime the child’s ability to form attachments, learn skills and eventually become a productive member of society. The loss of a positive parenting relationship is the greatest of all potential traumas. Therefore, children for whom the state has become the guardian represent society’s most vulnerable population

. . . The recently signed agreement will promote the agency’s employment of systematic intervention procedures, reliable screening and referral to accessible treatments and programs. By its participation in this partnership, the state can benefit children not only during their present tragedy, but also for the entire course of their development.

The Kevin S. settlement is groundbreaking in its breadth and specific in its methods. It brings together advocates for children, state agencies and national experts to reach agreed upon targets that aim to turn around the complex systems that serve children in foster care. Among other targets, here are a few examples of activities agreed to:

• Provision of a functional trauma assessment to children when they enter foster care to help identify what services and supports they will need to heal;
• Cross-departmental training and coaching so that adults working with children in foster care will understand the impacts of trauma and how to help children;
• Increased recruitment of more diverse foster parents;
• Ending the practice of placing children in hotels, motels, offices or out-of-state residential placements absent extraordinary circumstances;
• Expanding the state’s provider capacity so that children can receive behavioral health services in their home communities;
• Issuing new guidance governing medication protocols for children and youth in state custody;
• Working with New Mexico’s Tribes and Pueblos to draft a State ICWA that builds on the protections of federal law;
• Providing direct assistance for Native foster youth to participate in traditional ceremonies, if they so choose; and
• Proactively seeking federal funding for traditional treatments.

Change of this magnitude will take time. The parties have developed a common-sense approach to sequencing the tasks necessary to realign the system to meet the agreed upon targets. Data will be collected and evaluated by a team of experts with extensive knowledge in child welfare and Medicaid systems. These experts will produce public reports on settlement activities and progress towards the goals every year.

For more information about the Kevin S. settlement, please see coverage in The New York Times and the Kevin S. Settlement page.