By Steve Jansen
ALBUQUERQUE, N.M. — For at least the past two years, Albuquerque lawyer Antonia Roybal-Mack says that whenever she’s representing some of the most vulnerable children in the state, she receives skimpy background information from the New Mexico Children, Youth and Families Department (CYFD).
“Every single time we get records from CYFD, they aren’t complete. They’ll send us the file and we know there’s stuff specifically missing because we get [the missing] information from other places,” says Roybal-Mack, a family law attorney since 2007. “We’re litigating with one hand tied behind our backs.”
According to a Searchlight New Mexico article published last week, CYFD has also kept children’s court judges, foster youth and families, and the general public in the dark. Searchlight reports that a directive by CYFD cabinet secretary Brian Blalock forces his staff to communicate over the encrypted messaging app Signal.
The interagency text messages are automatically set to delete after 24 hours, rendering it virtually undetectable to any type of public records request. Blalock has since defended the practice, saying that Signal helps protect Health Insurance Portability and Accountability Act (HIPAA) data and other private information, and that the agency isn’t expunging any information considered public record.
In recent years, New Mexico, which has historically struggled with providing safeguards for some of the state’s most at-risk populations, has seen heartbreaking instances of child abuse, neglect, and sometimes death. It doesn’t help, according to a state lawmaker who has pushed for legislative changes, that CYFD functions as an autonomous organization. Roybal-Mack says that the state’s child protective agency can ill-afford to withhold critical information when a kid’s life may be on the line, and especially during the COVID-19 pandemic, which has explicitly subjected New Mexico’s system-involved youth and families to greater economic and social inequalities.
“You have little children that are getting abused and kids dying in state custody. At the same time, we’re not able to challenge CYFD with all of the information because they deleted half of it,” she says. “There’s no excuse for that.”
Critics say CYFD’s habit of deleting communications is problematic on several levels. Children’s law attorneys argue that it’s not only illegal, it can also lead to tragic outcomes for New Mexico’s most exposed kids. If lawyers, judges, caseworkers, and reporters aren’t able to track down potential life-saving information regarding child abuse and neglect investigations, it can lead to erroneous decisions about a child’s safety.
In addition, critics say that state lawmakers have kicked the can down the road on creating an independent body to monitor CYFD. Because the agency handles grievances from foster parents, youth in care, and even CYFD employees, they have essentially created its own in-house judges. The current setup has dissuaded system-involved youth, families, and advocates from filing complaints against CYFD due to a fear of retaliation.
The Republican Party of New Mexico, in response to the Searchlight story, urged the state attorney general’s office to investigate, adding that destroying public records is a fourth-degree felony that endangers some of the state’s most at-risk populations. New Mexico Attorney General Hector Balderas has since announced that his office is looking into the manner.
A LAW-BREAKING PRACTICE, CRITICS ATTEST
A few months after Gov. Michelle Lujan Grisham appointed Blalock in January 2019 to lead the state’s child protective services department, government officials, lawmakers, and a number of child-welfare organizations praised Blalock for infusing positive change into the state’s child-welfare system, which has consistently been ranked at or near the bottom nationally in child well-being outcomes.
In February 2020, the agency announced a robust plan of greater transparency and accountability. A few weeks into the coronavirus pandemic, the state reached a settlement in Kevin S. v. Jacobsen, a blistering lawsuit alleging that CYFD retraumatized youth in state care. Blalock credited the agency’s open government model as a reason for the legal truce.
“I think the settlement is an important symbol and manifestation of all of the things we’ve been talking a lot about in state government since 2019, which is about transparency and accountability and collaborating with outside partners in order to make important reform happen,” said Blalock in a March 2020 interview with Youth Today.
Attorneys and child-welfare advocates say that the agency’s particular use of Signal—which they say has trickled down from top-level administrations to caseworkers investigating child abuse and neglect claims—runs screaming in the opposite direction of transparency. “Nobody is saying don’t use Signal. I use Signal. The difficulty is the decision to have Signal [messages] deleted after 24 hours,” says Roybal-Mack. “It really does affect what happens to a kid and what happens in that investigation. It means that any investigation they’ve conducted or are conducting could be faulty.”
The Albuquerque attorney, who calls the current state of child welfare in New Mexico “incredibly sad,” says that disappearing Signal text messages breaches the New Mexico State Code of Conduct and violates the New Mexico Inspection of Public Records Act (IPRA).
Perhaps more troubling, Roybal-Mack explains, revolves around the legal concept of spoliation, which is the intentional practice of spoiling, deleting, or altering evidence.
“CYFD lawyers go to court and say that they didn’t know about [missing evidence in a case] so it’s technically not spoliation. However, the truth is they’re doing that every single time they delete anything, whether it’s an email or a Signal message,” she says. “It’s a civil tort they’re committing.”
LEGISLATIVE REFORMS FALL ON DEAF EARS
There have been numerous attempts to create more checks and balances over CYFD.
During the 2020 New Mexico Legislature, Rep. Kelly Fajardo (R-Los Lunas) co-sponsored the Child Welfare Ombudsman Act, which would’ve established an office to independently and privately handle complaints from anyone involved with the child-welfare system. And during the 2021 regular session, Rep. Rebecca Dow (R-Truth or Consequences) tried to push through a bipartisan bill that sought to move the child protective appeals process from under CYFD’s roof to an independent body.
Both pieces of legislation failed.
“All I want is transparency and an independent hearing officer. Thirty-six states have an independent appeals process and CYFD even opposes that,” says Dow. “[The Signal controversy] is one example of the many reasons why CYFD cannot remain an island.”
“If somebody wanted to file a complaint right now about CYFD’s conduct, you appeal within CYFD itself and the hearing officers are employees of CYFD. If there ever needs to be a final decision, it’s made by the secretary of CYFD,” adds Dow. “Children, families, foster parents, [Court Appointed Special Advocates, or CASA] workers, and CYFD employees have nowhere to go except to whistleblow.”
Dow says the state can’t afford these hiccups at such a tenuous stage. An August 2020 New Mexico Voices for Children report shows that the pandemic may have erased gains in children’s access to economic security, housing, food, and physical and mental health services. A March 2021 Save the Children survey ranks New Mexico 47th in the country for its ability to deal with childhood hunger, lack of tools for remote learning, and for families trying to pay bills during the COVID-19 crisis.
Dow is bewildered: “Why would you go work for one of the hardest agencies in the state to work for, with all the most difficult situations, just to hide and redact and delete as if these problems don’t exist?”
This story originally published May 3, 2021, on Youth Today.