FAQ About the Lawsuit

What is Kevin S. v. Blalock & Scrase about?

This case asked New Mexico to do better by children in foster care. The two state agencies primarily responsible for children in foster care are the Children, Youth, and Families Department (“CYFD”) and the Human Services Department (“HSD”). CYFD directly cares for young people and HSD administers Medicaid. New Mexico foster children are highly likely to have experienced complex trauma, a term that describes children’s exposure to multiple, persistent sources of adversity, violence, and loss, as well as the impact of this exposure. Every child entering the child welfare system has experienced the trauma of child abuse, abandonment, or neglect, coupled with separation from a caregiver. Youth in the foster system are subjected to physical, emotional, and sexual abuse; emotional and physical neglect; homelessness; the death, incarceration, or deportation of a parent; domestic violence; and/or parental substance abuse, mental illness, or involvement in sex work. Yet New Mexico had failed to allocate its resources to develop a trauma-informed system of child welfare. This lawsuit asked the court to hold CYFD and HSD accountable for meeting the state’s obligations to children in foster care.

What were the goals of the lawsuit?

This lawsuit sought coordination and collaboration between CYFD and HSD in serving children in foster care. It aimed to engage the committed professionals in New Mexico who stand ready to develop a trauma-informed system of child welfare.

Who brought this case?

This case was brought by 14 children who were in foster care. Their experiences while in the custody of the state demonstrate why this lawsuit was filed. New Mexico foster children told us:

  • I just feel like an administrative inconvenience.”
  • “When someone evaluates your case, all they see is a collection of your worst moments.”
  • I feel like CYFD does not hear what I mean when I try to say what I need. I feel trapped and invisible, like CYFD speaks for me.”
  • I wish I had been asked what I needed, and not told.”
  • “My favorite comic book is ‘Bone.’ He is a dog who gets lost, but then he finds his people and they give him a home.”
  • “If I could give advice to someone coming into the system, I would say that sometimes you will cry at night, and that is okay.”

Two nonprofit organizations brought this suit along with the 14 children. Disability Rights New Mexico and the Native American Disability Law Center are “protection and advocacy” organizations authorized by federal law to initiate legal action to protect the rights of persons with disabilities, including children in the foster care system. They know that children involved in the child welfare system by definition have experienced trauma leading to behavioral and mental health diagnoses. They seek to make sure that these children have the vital support and services they need to be healthy.

Who is affected by the outcome?

There are approximately 4,700 children in the foster care system in New Mexico. The 14 plaintiffs represent the experiences of all children in foster care.

Who is responsible for children in foster care?

Children in foster care have been entrusted to CYFD, and CYFD is responsible for making sure that children in foster care have safe places to live and the services they need to live healthy, productive lives.

What is trauma?

Trauma results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being. Children in the foster care system often experience complex trauma, which is the exposure to multiple traumatic events, often of an invasive, interpersonal nature, and the wide-ranging, long-term impact of this exposure.

Is trauma considered a disability?

In short, yes. Decades of medical research have overwhelmingly established that the brains of children who experience chronic or repeated traumas undergo material changes. These changes demonstrably impair brain functioning and the neurological and endocrine systems. These impairments in turn interfere with the ability to perform daily activities, including eating, sleeping, concentrating, thinking, communicating, learning, emotional- self regulation, setting goals, and long-term planning. These impairments fall squarely within the meaning of “disability” under the Rehabilitation Act and the Americans with Disabilities Act.

Why do children in foster care need trauma-informed services?

The wounds inflicted by trauma may be invisible, but they unmistakably impact children’s brain development. Failure to address the trauma experienced by foster children has lasting consequences for their health, educational achievement, and economic self-sufficiency. On the other hand, because the developing brain of a child is plastic and adaptable, widely published and peer-reviewed research shows that trauma-informed, evidence-based treatment, services and supports can actually help children impacted by complex trauma heal.

What is a trauma-informed system of child welfare?

A trauma-informed system of child welfare capable of serving children who have experienced complex trauma must include the following core elements:

  1. human capital, including sufficient numbers of case workers, foster parents, and mental health professionals with appropriate expertise and training;
  2. screening for trauma and prompt provision of appropriate, adequate, and coordinated medical, mental health, and behavioral health services;
  3. monitoring for children’s health and treatment;
  4. appropriate placements and placement supports; and
  5. a wraparound model that facilitates collaboration among parties responsible for care and service provision, an individualized planning process for each child, and a focus on sustaining relationships.
What is the state’s responsibility to foster children?

When parents abuse, neglect or abandon their children, New Mexico has a duty to make sure that they are safe and well cared for. New Mexico has established a system of child welfare to prevent the abuse, abandonment, or neglect of children and to ensure that youth in state custody have safe and permanent homes and that their well- being is promoted. This system reflects the parens patriae principle that state government has a paramount interest in ensuring the protection of children.

Children in the custody of the state are covered by Medicaid. The primary goal of Medicaid for children is to focus on prevention and early intervention in order to reduce health problems among poor children and offer them equal opportunities for access to health care and healthy lives.

Isn’t CYFD already overloaded?

This case seeks to make sure that CYFD and HSD work together to make sure children get what they need. New Mexico knows that identifying children and families’ needs for services early and providing them promptly improves outcomes. As sister agencies, CYFD and HSD can help each other coordinate services to meet the needs

Shouldn’t parents do a better job caring for their children and not have CYFD do it?

All New Mexicans share the goal of healthy communities and vibrant homes for our children. When children must be removed from their homes, it is critical that the state, as legal parent, provides the vital supports and services children in foster care need to be healthy.

Isn’t this going to cost a lot of money?

New Mexico already spends money on the child welfare system and on Medicaid. New Mexico decided years ago to have a single behavioral health care system that promotes mental health, prevention, early intervention, resilience, recovery and rehabilitation. Now is the time to make sure that our investments are targeted to make a real difference in the lives of children in foster care.

Who are the Defendants?

The Defendants are the Secretaries of the two Departments responsible for ensuring that children in state custody have the supports and services that they need. The Secretaries are being sued in their official capacities, not as individuals.

Where was the case filed?

This case was filed in the United States District Court of New Mexico because New Mexico’s children have rights that are protected by federal laws.

What laws were the Defendants violating, according to the complaint?

Section 504 of the Rehabilitation Act (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”), require CYFD and HSD to ensure meaningful access to the public benefits under New Mexico’s systems of child welfare and delivery of Medicaid services to which children are entitled, who have experienced complex trauma that substantially limits major life activities.

To provide meaningful access to the child welfare system and the state’s Medicaid program, CYFD and HSD must have a system for addressing the needs of children with disabilities who are impacted by complex trauma by providing trauma-sensitive approaches and training that have been shown to mitigate the effects of trauma. CYFD and HSD must also avoid repeated transfers of children among inappropriate facilities. These transfers subject children to new traumas, worsen their conditions, and further limit their ability to access the foster care and Medicaid systems. CYFD and HSD must also offer adequate medical, mental, and behavioral health screening, treatment, and monitoring to avoid exacerbating the effects of past trauma (including any trauma resulting from CYFD’s or HSD’s own acts) in order for these children to have meaningful access to the state’s foster care and Medicaid services.

Section 504 and the ADA also require that children be placed in the most integrated setting appropriate to their needs, but CYFD and HSD frequently violate this requirement by administering a system that places children in unduly restrictive residential treatment facilities rather than appropriate community-based placements.

The Fourteenth Amendment’s Substantive Due Process Clause imposes a duty on state officials to keep children in foster care reasonably safe from harm. Failure to implement a trauma-informed system that ensures appropriate placements and delivery of medical, mental health, and behavioral health services threatens the health, safety, and welfare of children in CYFD’s and HSD’s custody.

The Medicaid Act requires HSD to arrange for early screening and diagnostic services that would determine the existence of physical or mental illnesses or behavioral health conditions; to do so with reasonable promptness; to arrange for necessary medical, mental, and behavioral health services; and to inform eligible children of these available services.

The Indian Child Welfare Act (“ICWA”) requires States to make additional efforts to meet the unique cultural needs of children who are covered by ICWA, including Native American children in foster care. Congress recognized that many States were harming children by placing them with non-Native families unfamiliar with their traditions and culture. ICWA establishes placement preferences with a priority given to placing children with extended family or other Native foster homes.

Who are the lawyers?

The lawyers bringing this suit are a coalition of legal services organizations and private law firms committed to improving the lives of children in foster care. This coalition includes three legal non-profits (Disability Rights New Mexico, Public Counsel, and Stanford Law School’s Mills Legal Clinic Youth and Education Law Project), as well as private attorneys. The private attorneys include several New Mexico law firms – Martinez, Hart, Thompson & Sanchez, P.C.; Freedman Boyd Hollander Goldberg Urias & Ward, PA; The Crecca Law Firm; The Law Office of Ryan J. Villa; and The Rodey Law Firm; as well as Munger, Tolles & Olson, LLP.

The lawsuit fought for the right of every child in New Mexico’s care to be safe and to have the resources necessary to heal and thrive.

This page is maintained by Public Counsel. Contact us at nmfostercare@publiccounsel.org.