The Roundhouse in Santa Fe. Post file photo

By DANIEL J. CHACÓN
The Santa Fe New Mexican

A yearslong effort to create an agency to provide independent oversight of the New Mexico Children, Youth and Families Department won Senate approval Friday.

House Bill 5, which would establish an Office of the Child Advocate responsible for monitoring the services CYFD provides and receiving complaints about the agency, now heads back to the House for concurrence after it was amended — and some say watered down — in the Senate.

Although he was the lone “no” vote on an amendment crafted in consultation with the Governor’s Office, which didn’t support the proposal as originally written, Sen. Joe Cervantes, D-Las Cruces, who sponsored the bill in the Senate, ultimately voted in favor of the measure.

“We’ve reached a point where I think, really, we have no choice but to do something,” Cervantes said before the 28-13 vote.

“To allow more time and to hold our tongues and to avert our eyes a little bit longer, it’s hurting some kids that are living under desks who we’ve taken and placed there because they thought they were going to be safe,” he said.

The amendment the Senate passed 40-1 strips the proposed agency’s subpoena power and authority to determine whether the department or a department employee had violated a child’s federal or state constitutional rights.

Sen. Katy Duhigg, D-Albuquerque, who sponsored the amendment, called the proposed subpoena power “a bit of an overreach” and said determining whether someone’s civil rights were violated is the role of a court. 

“It was trimming around the edges and just making sure things were cleaned up and well positioned for this office to work as a collaborative advocate rather than something punitive,” she said in an interview.

Duhigg said the amendment was developed in partnership with the executive.

“I think it’s essential that whatever approach we’re going to take, especially something as important as how we help the most vulnerable children in New Mexico, we all ought to be on the same page,” she said. “I think it really is a very strong bill that will make a really significant difference for kids and families in New Mexico.”

After introducing the amendment in the Senate, Duhigg told senators it “gets us a bill signed by the governor.”

The proposal generated a 2½-hour debate that included discussion about whether the proposed office would duplicate the work of the Substitute Care Advisory Council, as well as whether creating another agency was the best solution to fixing the troubled child welfare agency, which even Gov. Michelle Lujan Grisham has called “dysfunctional.”

The office, which would be administratively attached to the state Department of Justice, has a funding appropriation of only about $3,000 in the state’s proposed budget, which Sen. Jeff Steinborn, D-Las Cruces, said was inadequate.

“This is an office that’s going to be inundated with calls,” he said. “Let’s be honest.”

Cervantes said the “contemplation” is staffing that would be provided through the Civil Rights Division of the Department of Justice.

“I’m going to postulate that a better solution to the problem rather than standing up another agency with the same prime directive as CYFD would be to fix CYFD,” said Sen. Larry Scott, R-Hobbs. “Is that asking too much?”

Cervantes told Scott he had resisted previous efforts “for the last almost seven years now” because he shared the same concerns. But he said reports and news stories about CYFD, as well as seeing “videotape of a dead child as law enforcement came upon her body in Silver City,” changed his mind.

“I can’t sleep well at night knowing that children are suffering every day and every night and have for seven years, and I’ve had a chance to do more about it and this is the more,” he said.

Scott told Cervantes he should have “resisted one more year” and helped the executive branch with the money and expertise to address the problems at CYFD.

“We need to avail ourselves of the best, brightest people that there are in the country that engage in these activities, hire them, train them, pay them appropriately and solve the problem with CYFD,” he said. “What we don’t need to be doing is standing up another organization that will now share the blame when things don’t work.”

Early in the debate, Cervantes championed an amendment that would have given a child advocate selection committee the power to fill the advocate position if the governor failed to make an appointment within 30 days of receiving the committee’s final nominations.

Without the amendment, the bill would be “rendered meaningless,” he said.

“A recalcitrant executive could essentially just never fill the position,” Cervantes said.

Despite his urging, the amendment failed 11-27.