Arbitrator orders corrective actions in Kevin S. case; state told to fund staffing, recruit foster parents

An arbitrator on Jan. 21, 2025 ruled for plaintiffs in the Kevin S. lawsuit and issued a remedial order directing the New Mexico Children, Youth and Families Department (CYFD) and the Human Services-related agency to take immediate staffing, recruitment and data fixes, plaintiffs’ counsel told the Senate Health and Public Affairs Committee at a hearing.

The order “found in favor of plaintiffs on all claims, noting that CYFD remains severely understaffed and that it had failed to recruit and retain adequate foster parents,” said Miss Greca, a plaintiff implementation team member and attorney who has represented children in foster care as a guardian ad litem and youth attorney since 2001.

Why it matters: The arbitration decision and the corrective action plan (CAP) affect how the state must care for children in custody, how funding requests should be structured this legislative session and whether the agencies will face court enforcement if they fail to comply. Committee members asked how the legislature can link funding to measurable accountability and whether the state could lose federal funds for noncompliance.

The remedial order focuses the state on a short list of foundational requirements intended to reduce the number of children placed overnight in agency offices, reduce caseloads, expand foster-family (resource family) recruitment and improve the state’s aging data system. The arbitration hearing lasted eight days, and plaintiffs said they arbitrated only the CAP rather than the full settlement agreement.

Key requirements and deadlines spelled out in the order include: by Feb. 17, 2025, CYFD must dedicate one placement-staff worker in each of five high-need counties (Bernalillo, Doña Ana, Santa Fe, San Juan and Chaves/Eddy) to focus exclusively on foster-parent recruitment; those designated individuals must be identified in writing to the co-neutrals by Feb. 10, 2025, the order says. The order also directs the agency to include funding requests this session to fully staff caseworker and case-aide positions needed to meet the caseload standards in the agreement.

Miss Greca told the committee that the arbitration panel also ordered the creation of a new class of caseworker to cover on-call emergencies and overnight work. She said the arbitrator urged CYFD to overhire so that a trained pool of workers is always available rather than waiting for vacancies to arise.

Miss Greca and co-neutral monitors reported a sharp increase in children spending nights in CYFD offices since the settlement and said those placements create destabilizing environments for youth and staff. She said the co-neutrals’ validated reports — released annually in November — document those trends and data problems.

On data systems, Miss Greca said the state’s FACT/FACS system is decades old and that the co-neutrals can validate only prior-year data because of the way the system and validation process work. “How can you understand what problems you have if you don’t have valid data?” she asked the committee.

A live agency response in the hearing noted that the department had submitted its original budget before the remedial order but provided an additional request tied to the order. “We put together a spreadsheet based on the items in the remediation order and have submitted an additional request for $24,000,000 to meet the items in the remedial order,” said Secretary Casadas of CYFD.

Committee members pressed on other program details that the CAP itself does not address. Miss Greca said the CAP focused on immediate foundational fixes and therefore did not rehearse all cultural- or tribe-specific provisions that appear in the full settlement agreement, but she and the implementation team continue to monitor Indian Child Welfare Act (ICWA) compliance and coordination with tribes and pueblos.

On the question of law enforcement responses, Miss Greca told the committee that “law enforcement should be last resort,” and she described examples in which children in office placements prompted 911 calls that escalated instability. Senators asked whether the corrective order or pending legislation addresses de-escalation training and alternatives to calling police; Miss Greca recommended evidence-based approaches such as the Nurtured Heart model and said implementation requires agency leadership and contracts with trained providers.

The hearing covered related operational issues the CAP targets: well-child checks within 30 days of custody intake; better coordination with the managed care organization now serving foster children (Presbyterian Health Plan was named as the MCO); and targeted foster-parent recruitment and retention efforts. Miss Greca said the plaintiffs’ implementation team includes national and local experts and nonprofit legal advocates (Public Counsel, Disability Rights New Mexico, Native American Disability Law Center and others) who help monitor compliance and bring issues to the co-neutrals’ attention.

Miss Greca emphasized enforcement options if the agencies do not comply: the plaintiffs can seek judicial enforcement of the remedial arbitration order, and she noted courts in other states have imposed daily fines for noncompliance. “If there is still noncompliance, then our team will consider taking the arbitration order into state court where it is enforceable as an order,” she said.

The committee discussion also raised concerns about cultural and language matching for placements, tribal foster-parent licensure and the interaction between ICWA and the state Indian Family Protection Act. Miss Greca and committee members said these issues are part of the broader settlement but are at risk of being overlooked unless the foundation — staffing, placements and data — is fixed.

The hearing closed with senators urging budget committee colleagues to review the department’s requests and to consider attaching accountability measures to funding. Plaintiffs urged the legislature to fund the CAP items and to avoid piecemeal reforms that distract from the settlement’s blueprint for a trauma-informed, coordinated system of care.

Ending: The remedial order sets short, specific deadlines for staffing and recruitment steps that the committee and agency will monitor this session. If agencies fail to meet the arbitration’s requirements, plaintiffs signaled they will seek court enforcement; CYFD has requested an additional $24 million to implement the order’s tasks.