state of new mexico first judicial district annette...
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STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT
ANNETTE TORRES, ANNABEL TORRES, LAUREN CAMBRA, MONICA BROSHIOUS, CRISTELA CASTRO, SAMANTHA RIVERA- all residents of New Mexico on behalf of themselves and individuals similarly situated and ORGANIZERS IN THE LAND OF ENCHANTMENT, New Mexico membership based organization, representing low-income families. Plaintiffs,
vs. No. D-101-CV-2018-02769
MONIQUE JACOBSON, in her official capacity as Secretary of the New Mexico Children, Youth and Families Department,
Defendant.
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF ON BEHALF OF NEW MEXICANS DENIED CHILD CARE ASSISTANCE
Introduction
1. Plaintiffs seek injunctive and declaratory relief against the State of New Mexico’s
Children, Youth and Families Department (CYFD) Early Child Services Bureau (the Department)
to stop the State from illegally denying Child Care Assistance to low-income families. The named
Plaintiffs, their members and tens of thousands of other low-income families are denied child care
assistance because Defendant: 1) illegally denies assistance to families with income above 150
percent of the federal poverty level, 2) illegally denies families full assistance and requires families
to pay a portion of child care costs, known as co-payments using a calculation that is not in
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regulation, 3) has implemented and is enforcing unconstitutionally vague regulations and 4) does
not provide applicants with basic due process necessary to challenge a denial of assistance. The
Court has a legal duty to put an end to these illegal state actions in order to remedy the harm inflicted
on the Plaintiffs and thousands of other New Mexico families.
2. New Mexico’s child care assistance program is partially funded and administered
through the federal Child Care and Development Block Grant (CCDBG). See 42 U.S.C.A §§ 9857-
9858. Federal law gives states complete flexibility in setting up a child care assistance program. 42
U.S.C.A § 9857 (b)(1).
3. The New Mexico legislature appropriates funding for child care assistance to the
Children Youth and Families Department’s Early Childhood Services Division from the CCDBG
and other sources for child care assistance. See General Appropriations Act of 2018, p. 114,
available at https://www.nmlegis.gov/Sessions/18%20Regular/final/HB0002.pdf.
4. Defendant’s regulations establish priorities for expending the funds appropriated by
the legislature for families with income up to 200 percent of the federal poverty level. See NMAC
8.15.2.9 (F).
5. Child care assistance is a protected property right in New Mexico because eligible
families are entitled to receive the benefits by virtue of meeting the eligibility criteria set by
Defendant in expending the funding allocated for the program. This means that the benefits cannot
be denied or reduced without due process, including notice and the right to be heard.
6. Child care is a basic necessity for New Mexico’s low-income families. Without child
care, low-income New Mexicans cannot support their families because they are unable to work or
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attend school. The cost of child care is out of reach for most low-income families.1 Without
assistance, families with income below 200 percent of the federal poverty level spend up to 30.1
percent of their income on child care, compared to just 6.9 percent for families with incomes above
200 percent of the federal poverty level.2 This means that families who do not receive assistance do
not have sufficient income to pay for other necessities, including food and housing.
7. When eligible families are illegally denied child care assistance by Defendant or are
required to pay an unaffordable share of child care costs, they are put in the untenable position of
turning down gainful employment, dropping out of school, or seeking alternative child care that is
often low-quality, unsafe or not developmentally appropriate for their children.
8. As of July 2018, only 19,769 low-income New Mexican children participate in
CYFD’s Child Care Assistance Program.3 According to the most recent data available by the
Department, CYFD’s Child Care Assistance Program serves just one-third of all eligible children
living in the State.4
9. Despite this, Defendant has implemented illegal policies that conflict with current
regulations and that restrict eligibility for child care assistance. These policies violate state statutes
and constitutional law. As a result, Plaintiffs and other New Mexico families have suffered grave
injuries. Plaintiffs challenge multiple illegal policies and practices.
1 National Women’s Law Center, State Child Care Assistance Policies Fall Short in Meeting Families’ Needs, November 2017, p. 1, available at https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2016/11/fact-sheet-on-state-child-care-assistance-policies-2017.pdf.
2 National Women’s Law Center, Child Care Is Fundamental to America’s Children, Families, and Economy, p. 1, available at https://nwlc.org/resources/child-care-is-fundamental-to-americas-children-families-and-economy/. 3 N.M. Human Services Department, Monthly Statistical Report: July, 2018, p. 54, available at http://www.hsd.state.nm.us/uploads/FileLinks/587930e6bdd0402c9d4990a78c041734/MSR_July2018_Final_Version.pdf 4 2016 New Mexico Child Care Data Report, Center for Education Policy Research, January 2017, p. 3, available at https://cyfd.org/docs/Child_Care_Report_012017.pdf
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10. First, Plaintiffs challenge CYFD policies that restrict access to child care assistance
and which were illegally implemented by the Department without promulgation of a regulation, in
violation of the State Rules Act and the CYFD Act. See NMSA 14-4-1, et. seq. and 9-2a-1, et. seq.
These illegal policies include:
a. Denying child care assistance to families with income over 150% of the federal poverty
level (FPL). The New Mexico Administrative Code states that CYFD will expend funding
for child care assistance on families with income below 200% of the federal poverty level.
See NMAC 8.15.2.9(F). Despite this, CYFD issued a state plan denying services to
families with income above 150% FPL. Defendant lowered the eligibility standard and
reduced access to services without changing its regulation as required by NMSA § §14-
4-5.2 and 14-4-5.3; 9-2A-7 (D) and (E).
b. Requiring families to pay an arbitrary share of costs in order to get benefits. Defendant
denies some families full assistance and requires them to pay a share of child care costs
in the form of co-payments. The factors and calculation methodology used to determine
benefit levels and the share of costs a family must pay are not in state regulation or even
publically available. Defendant’s regulations provide vague information that families are
responsible for co-payments based on the size and income of a household and block of
time the child is in care. However, the calculation method and base co-pay levels are not
explained in regulation. Defendant publishes a chart on its website with some additional
information about co-payment costs for different income levels. However, even with the
chart on Defendant’s website, there is no way for an applicant to determine what co-
payment his or her family must make based on household size and hours in care.
Defendant’s implementation of base co-payment levels and a calculation methodology are
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illegal because they have not been promulgated into regulation, with notice and a public
hearing as required by NMSA § §14-4-5.2 and 14-4-5.3; 9-2A-7 (D).
11. Second, Plaintiffs challenge CYFD’s illegal regulations and practices which deny
Plaintiffs due process of law as guaranteed under Article II, Section 18 of the New Mexico
Constitution. These practices include:
a. Unconstitutionally vague co-payment regulations: The Department’s regulations do not
provide information that explains the amount of benefits a family qualifies for and the
corresponding legal obligation for a family to pay a portion of child care costs. As a result,
families have to guess how much assistance they are eligible to receive and have no basis
to determine if Defendant’s eligibility decision is correct.
b. Failure to provide notice and advise applicants of their right to a fair hearing: CYFD
routinely turns families away from CYFD offices who do not meet the illegal and arbitrary
eligibility levels set by Defendant. Defendant does not consistently provide families with
written notification stating why benefits are denied or reduced, or that the denial can be
appealed. In May of 2018, CYFD assistance general counsel told Plaintiffs’ counsel that
there has never been a fair hearing on behalf of an individual denied child care assistance.
12. To ensure that the Department administers the child care assistance program in
accordance with the State Rules Act, NMSA 14-4-1, et. seq. and the CYFD Act, NMSA 9-2a-1,
et. seq. and provides families with the due process to which they are entitled under Article II,
Section 18 of the New Mexico Constitution, Plaintiffs, through their undersigned counsel, bring
this action for declaratory and injunctive relief.
IV. PARTIES
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13. Plaintiff, ORGANIZERS IN THE LAND OF ENCHANTMENT (OLÉ) is a
domestic nonprofit corporation registered with the New Mexico Secretary of State. Its main office
is in Albuquerque, New Mexico. OLÉ is a statewide membership organization consisting of
working families and childcare center owners, directors and educators/caregivers. OLÉ members
and staff work to improve access to quality, affordable child care for working families to ensure
that parents can become and remain gainfully employed and that children are given the opportunity
to learn and thrive while in a child care setting. Defendant’s illegal restrictions on eligibility for
child care assistance, unconstitutionally vague regulations, and failure to provide procedural due
process harm OLÉ members and cause OLÉ staff members to divert time and resources to helping
families navigate the child care assistance application process and find alternative options for care.
Defendant’s failure to promulgate regulations with a public comment and hearing injures OLÉ’s
interest in expanding access to affordable child care in New Mexico.
14. Plaintiff ANNETTE TORRES is a resident of Los Lunes, New Mexico. Ms. Torres
works full-time as an employee of the State of New Mexico. She is a single mother with a three-
year-old child. Since the birth of her child in 2015, Ms. Torres’ family has had income between
150 and 200 percent of the federal poverty level. Ms. Torres applied for child care assistance three
times in 2015 following the birth of her daughter. As is more fully described below, CYFD illegally
denied Plaintiff Annette Torres child care assistance each time she applied because Defendant has
an illegal policy of denying child care assistance to families with incomes over 150 percent of the
federal poverty level. On two occasions, Defendant denied Ms. Torres verbally and did not provide
her with a written notice explaining why she was denied or advising her of her right to appeal and
of the process for doing so.
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15. Plaintiff ANNABEL TORRES is a resident of Albuquerque, New Mexico. Ms.
Torres is a full-time employee for the State of New Mexico. She is a single mother to three children,
ages two-years old, three-years-old and five-years-old. All three children attend day-care full time.
Ms. Torres has been participating in CYFD’s child care assistance program for three years.
Currently, Ms. Torres pays $441 a month as a co-payment, including gross receipts tax. As is more
fully described below, Defendant illegally required Ms. Torres to make co-payments using a
calculation that has no legal basis.
16. Plaintiff CRISTELA CASTRO is a resident of Santa Fe, New Mexico. She is a full-
time medical assistant. She is a single mother to three children, ages six-months-old, three-years-
old and five-years-old. Ms. Castro has been participating in CYFD’s child care assistance program
for three years. In 2016, Ms. Castro had to pull her oldest son out of the child care assistance
program because she could not afford the copay of $268. Currently, Ms. Castro pays $189 per
month and gross receipts tax for two of her three children to attend day care. As is more fully
described below, Defendant illegally required Ms. Castro to make co-payments that have no legal
basis.
17. Plaintiff LAUREN CAMBRA and her husband, John Cambra are residents of
Albuquerque, New Mexico. Mr. Cambra is employed full-time as a security guard. Plaintiff Lauren
Cambra is currently on maternity leave, but will return to work as a cashier in September of 2018.
Mr. and Mrs. Cambra are parents to two children, ages two-months-old and two-years-old. Mr. and
Mrs. Cambra applied for child care assistance in August of 2017 and were approved. Defendant
required Mr. and Mrs. Cambra to make co-payments of $89 per month for full time care of their
oldest child in addition to gross receipts tax. As is more fully described below, Defendant illegally
required Mr. and Mrs. Cambra to make co-payments that have no legal basis.
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18. Plaintiff MONICA BROSHIOUS is a resident of Albuquerque, New Mexico. Ms.
Broshious is employed full-time as a pre-school teacher. She is a single mother of two children,
ages eight-years-old and seven-years-old. Ms. Broshious applied for child care assistance in June
of 2018 and was approved. CYFD requires Ms. Broshious to pay $152 per month for the full-time
care of both children with some after-hours care. As is more fully described below, Defendant
illegally required Ms. Broshious to make co-payments that have no legal basis.
19. Plaintiff SAMANTHA RIVERA is a resident of Albuquerque, New Mexico. Ms.
Rivera is a full-time preschool teacher. She is a single mother to two children, ages two-years-old
and four-years-old. Both children require daycare full-time. Ms. Rivera has been participating in
CYFD’s child care assistance program for three years. Ms. Rivera currently pays $110 a month as
a co-payment, in addition to gross receipts tax. As is more fully described below, Defendant
illegally required Ms. Rivera to make co-payments that have no legal basis.
20. Defendant MONIQUE JACOBSEN is the Secretary of the New Mexico Children,
Youth and Families Department (“CYFD”). It is the Secretary's duty to manage all operations of
the department and to administer and enforce the laws with which she or the department is charged.
NMSA §9-2A-7(A). The Secretary must approve all regulations promulgated by HSD. NMSA §9-
2A-7(D). Plaintiffs assert this civil action against Defendant Jacobsen in her official capacity only.
II. JURISDICTION AND VENUE
21. This Court has jurisdiction over this action and over the parties. Jurisdiction is
proper pursuant to the New Mexico Rules Act, NMSA 1978 § 14-4-1, et. seq. the Children, Youth
and Families Act, NMSA 9-2A-1, et. seq., the Declaratory Judgment Act, NMSA 1978 §§ 44-6-1
to -15, and the New Mexico Constitution, Art. II, Section 18.
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22. Venue for this action lies in the First Judicial District Court of Santa Fe County,
pursuant to NMSA 1978, § 38-3-1(G) (1988).
V. Legal Framework for New Mexico’s Child Care Assistance Program
23. New Mexico’s Child Care Assistance Program is authorized and funded under the
federal Child Care and Development Block Grant (CCDBG). The purposes of the CCDBG include:
1) to improve child care for participating children, 2) to increase the number and percentage of low-
income children in high-quality child care settings, 3) to promote parental choice to empower
working parents to make their own decisions regarding the child care services that best fit their
family’s needs, and 4) to assist states in delivering high-quality child care to maximize parents’
options and support parents trying to achieve independence from public assistance. 42 U.S.C.A. §
9857(b).
24. The CCDBG requires states to create, implement, and file a plan with the Federal
Department of Health and Human Services (DHHS) detailing how the state will administer its child
care program in accordance with federal law. 42 U.S.C.A. § 9858c. A new plan must be filed
every three years. 42 U.S.C.A. § 9858c(b). The Department’s current plan, effective for federal
fiscal years 2016 through 2018, can be found here: http://www.newmexicokids.org/wp-
content/uploads/2015/04/CYFD_CCDF_ReAuth_2016.pdf .
25. A CCDBG state plan must include 1) the eligibility criteria and priority rules for
child care assistance, 2) a description of the sliding fee scale (including any factors other than
income and family size used in establishing the fee scale) that explains family cost-sharing
requirements, known as co-payments, and 3) a process for timely appeal and resolution process for
co-payment inaccuracies and disputes. 45 CFR §98.16(i)(5), 45 CFR §98.16 (k) and 45 CFR
§98.45((l)(6).
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26. The CYFD Act at NMSA 9-2A-7 gives the Secretary of CYFD the duty to operate
the department, manage operations and to administer and enforce the laws with which he or the
department is charged. The Secretary is responsible for making and adopting reasonable and
procedural rules and regulations that are necessary to carry out the duties of the department and its
divisions. All rules and regulations filed by CYFD, must be filed in accordance with the State Rules
Act. The CYFD Act requires the secretary to engage in rulemaking when the department has
insufficient state funds to operate any of the programs it administers and a reduction in services or
benefit levels are necessary. See NMSA § 1978 9-2A-7(E).
27. Defendant has promulgated regulations at 8.15.2.1 NMAC to implement the Child
Care Assistance Program in New Mexico. CYFD’s regulations state that a family is eligible for
assistance if they meet the following requirements: 1) Have countable income below the program
limit, 2) are New Mexico residents, 3) the child receiving care is a U.S. citizen or eligible immigrant,
4) the child receiving assistance is between 6 weeks to 13 years old, and 5) where the family meets
and work or educational requirement. The regulations also state that families are responsible for
paying a portion of child care costs, known as co-payments once they have been approved for
assistance, and the procedures for appealing adverse decisions via a fair hearing.
Income Eligibility for Child Care Assistance in New Mexico
28. Defendant’s regulations at NMAC 8.15.2.9 state that the Department will expend
federal and state funds on child care assistance based on six priority levels:
a. Priority 1 includes families who receive Temporary Assistance for Needy Families
(TANF).
b. Priority 1-A is listed in the regulations, but currently reserved with no content.
c. Priority 1-B includes families whose income is at or below 100% FPL.
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d. Priority 2 includes families transitioning off of Temporary Assistance for Needy Families
(TANF), at least in part because of earned income. TANF is a cash assistance program
for very low income families with children.
e. Priority 3 is listed in the regulations, but currently reserved with no content.
f. Priority 4 includes families whose income is above one hundred percent of the federal
poverty level, but below two hundred percent of the federal poverty level.
29. CYFD regulations state that the Department prioritizes children with special needs,
homeless families, and teen parents within Priority 1- B and Priority 4. See NMAC 8.15.2.9(C)
and (F).
30. The regulations state that the Department may maintain a waitlist if it does not have
sufficient funding for families meeting the criteria listed in Priority levels 1-B and 4. NMAC
8.15.2.9(C) and (F)
31. Defendant’s State Plans, from 2016 to 2018, state that “based on budget availability,
new clients may be eligible based on 0 percent to 150 percent of the federal poverty level (FPL).
Existing clients who recertify will maintain eligibility up to 200 percent FPL.” See Exhibit 1,
Section 3.1.5 of the New Mexico Child Care and Development Plan for FFY 2016-2018 p. 75.
32. However, until January of 2018, Defendant’s website stated that clients with income
above 100 percent of the federal poverty level will be placed on a waiting list, due to state budget
shortfalls. See Exhibit 2, screenshot of www.cyfd.org from January 9, 2018.
33. In January of 2018, Defendant changed its website to state that “The Child Care
Assistance Program subsidizes the cost of child care for low-income families (at or below 150% of
the federal poverty level) that are working and/or in school and have a need for child care.” See
https://cyfd.org/child-care-services/child-care-assistance.
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34. CYFD has implemented a policy reducing eligibility below 200% of the federal
poverty level every year since 2013. In 2013, Defendant denied applications for families with
incomes above 100% of the federal poverty level and since 2014, has had a policy of denying
applications of families with income above 150 percent of the federal poverty level. These
eligibility standards conflict with the standards for expenditure priorities in regulation. A history of
CYFD’s restriction on child care assistance eligibility published by the NM Legislative Finance
Committee is attached as Exhibit 3.
Child Care Co-payments
35. Federal law requires that state agencies administering child care assistance programs
periodically revise, by rule, a sliding fee scale that provides for cost sharing (co-payments) that is
not a barrier to families who participate in the State’s child care program. 42 U.S.C.A. §
9858c(c)(5).
36. A state’s sliding fee scale must take into account income and the size of the family
in determining each family’s co-payment and may use other factors when determining co-
payments. Any other factor used in determining co-payments must be described in the state plan.
45 C.F.R. 98.16(k).
37. CYFD’s regulations and the state plan state that co-payments are based upon
household size, income and if the child is part time, the block of time they are in care. See NMAC
8.15.2.13(A) and (B).
38. CYFD regulations state that:
i. co-payments for each additional child are determined at one half of the co-payment
for the previous child. See NMAC 8.15.2.13(B).
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ii. the Department will develop and publish an annual co-payment schedule based on
the federal poverty guidelines. See NMAC 8.15.2.24.
39. CYFD’s State Plan provides a link to one of its websites where the co-payment
schedule can be located: https://cyfd.org/child-cae-services. Due to a misspelling, the web link in
the 2018 State Plan does not work. The correct link for the co-payment schedule for April 2018
through March 2019 is
https://cyfd.org/docs/Copay_Table_Effective_April_2018_thru_March_2019_.pdf. The chart lists
a monthly amount that a family is expected to pay based on income and family size for a child,
without an indicating how that number is adjusted based on hours of care. The co-payment schedule
is attached as Exhibit 4.
40. The U.S. Department Health and Human Services recommends that states require
family co-payments to be no more than 7% of family income in order to be affordable. See Federal
Register, Vol. 81, No. 190, at p. 67467, issued September 30, 2016. Despite this, the CYFD co-
payment chart sets co-payments as high as 9% of monthly income for just one child in care and a
large share of families pay more than 9% of their income because they have multiple children. For
example, a single parent of two children with income at 150% of the FPL would be expected to pay
10% of their income towards childcare.
41. A document titled “Co-payment Procedure” states that copayments are “derived
from FACTS/EPICS and the co-payment calculator tool.” The procedure explains that copayments
for part time child care are based on the percentage of time the child is in child care. As an example,
a child is considered “full time” when he or she receives 30 or more hours of child care a week. In
that scenario the full rate is due to the child care provider and the family must pay a portion of that
payment based on the sliding scale fee. However, the base rates and the portion families must pay
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based on income and household size is not in regulation or the worker procedural guidance. The
“Co-payment Procedure” is attached as Exhibit 5.
42. The “Co-payment Procedure” is only available to the public via a public records
request and costs $.25 a page or by visiting the CYFD central office in Santa Fe at a time convenient
for the Department.
43. Defendant does not have a manual for workers. As of September 20, 2018,
Defendant only has a “draft procedures” document. See CYFD response to public record request,
attached as Exhibit 6.
44. Information about the Child Care Assistance Program is also published on three
different websites operated by Defendant. The first website, www.newmexicokids.org, allows
families to search for licensed child care providers, includes a link to the CYFD child care
regulations, and is where CYFD publishes its State Plan. The second website,
https://pulltogether.org/, contains basic information on child care assistance, i.e. what age a child
must be to be approved for child care assistance, and where a family can apply for assistance. The
third website, https://cyfd.org/child-care-services/child-care-assistance, also contains basic
eligibility information for the child care assistance program, as well links for downloadable
applications for assistance, and a link to a chart that states maximum co-payments for one child
based on a family’s monthly income. None of Defendant’s websites explain how a family can
determine the amount of assistance they will qualify for.
VI. FACTUAL ALLEGATIONS
Individual Plaintiffs
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45. Defendant’s illegal administration of the child care assistance program deprives
Plaintiffs and their members of benefits to which they are entitled and due process of law. The
facts concerning the Plaintiffs are described below.
Plaintiff Annette Torres
46. Plaintiff ANNETTE TORRES is a single mother of one child who is three-years-
old. Plaintiff Torres is employed full-time with the State of New Mexico. She requires full-time
child care for her daughter during her work hours.
47. Plaintiff Torres’ monthly income is $2,561.60. This places her family income just
below 190 percent of the federal poverty level.
48. Since the birth of her daughter, Plaintiff Torres has applied for a child care assistance
with CYFD three times. Each time Plaintiff Torres applied for child care assistance, a CYFD
caseworker turned her away from the local offices and told her she was not eligible because her
income was above the eligibility threshold and told her that she did not qualify for a child care
assistance waiting list. On two occasions, Ms. Torres was turned away without a written denial
notice and was not told that she has a right to appeal.
49. Without assistance, Plaintiff Torres pays $300 per month on childcare. This is 11.71
percent of her income. Plaintiff Torres struggles to afford child care and other basic needs for her
family. As a result, she routinely and consistently has to rely on her family to help with childcare
costs and groceries to feed her family. Affidavit of Annette Torres is attached as Exhibit 7.
Plaintiff Annabel Torres
50. Plaintiff ANNABEL TORRES is a single mother three young children, ages two,
three and five years old. She is employed full-time with State of New Mexico. Plaintiff Torres’
monthly income is $3,231, placing her family’s income at 157 percent of the federal poverty level.
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She relies on the CYFD child care assistance program to provide child care for her children while
she is working. Plaintiff Torres and her children have been participating in the child care assistance
program for three years.
51. In January 2018, Plaintiff Torres applied to renew her child care assistance benefits.
She was approved for a 12-month contact.
52. Plaintiff Torres’ monthly co-payment is $401 per month. This is over 12 percent of
her family’s monthly income. In addition, Plaintiff Torres’ child care provider charges her $40 per
month in gross receipts taxes.
53. Plaintiff Torres cannot afford the co-payment set by CYFD. She is unable to afford
her monthly co-payment, as well as her other bills and meet the basic needs of her family. In order
to makes ends meet, Plaintiff Torres has had to cut back on necessities and has had to rely on her
mother to purchase diapers and milk for her children. On multiple occasions, she has had to borrow
money from her mother to pay her rent.
54. Plaintiff Torres’ CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. There is no basis in regulation or statute that validates
the co-payment Defendant set for Plaintiff Torres’ family. Plaintiff Torres has no way to determine
if the co-payment is correct or to challenge the amount that Defendant requires her family to pay.
Affidavit of Annabel Torres attached as Exhibit 8.
Plaintiff Cristela Castro
55. Plaintiff CRISTELA CASTRO is a single mother three young children, ages two
months old, three years old and five years old. She is employed full-time as a medical assistant.
Plaintiff Castro’s monthly income is $2,411 per month, placing her family at 115.26 percent of the
federal poverty level. She relies on the CYFD child care assistance program to provide child care
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for two of her three children while she is working. Plaintiff Castro and her children have been
participating in the child care assistance program for three years.
56. When she first applied in March of 2015, she was a part of a four-person household,
with an income of $3,580 per month. This put her family’s income at 180% of the federal poverty
level. Despite, CYFD’s documented policy of denying benefits to families with income over 150
percent of the federal poverty level, she was inexplicably approved for four months of part-time
care for two children. The CYFD caseworker set her copayment at $327 per month, excluding
gross receipts tax. This payment was 9.1% of her family’s income. CYFD later reduced her co-
payment to $189 a month when her household went from four to three people.
57. In July of 2016, Plaintiff Castro’s copayment went up to $268 per month for both
children because her income increased to $2,990 per month. This was 9% of her family’s income.
58. Plaintiff Castro cannot pay the co-payment and meet her family’s basic needs. In
order to reduce the copayment, took unenrolled my oldest child from the childcare assistance
program and obtained free child care through a special program administered by Presbyterian
Medical Services. CYFD reduced her copay by $30.
59. After her third child was born in April of 2018, Plaintiff Castro added her newborn
daughter to her CYFD case and asked for assistance for full-time care. She could not afford to keep
her two youngest children enrolled full-time and pay for her family’s basic needs. As a result, she
made the difficult decision to reduce family’s income and stay home with her children on Fridays.
60. Plaintiff Castro currently pays $189 per month in copays for both children. Ms.
Castro cannot afford the total monthly co-payment assessed by CYFD, combined with gross
receipts taxes. In order to pay for childcare, Ms. Castro has had to postpone paying certain bills,
and reduce the frequency and amount of food she buys.
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61. Plaintiff Castro’s CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. There is no basis in regulation or statute that validates
the co-payment Defendant set for Plaintiff Castro’s family. Plaintiff Castro has no way to determine
if the co-payment is correct or to challenge the amount that Defendant requires her family to pay.
Affidavit of Cristela Castro attached as Exhibit 9.
Plaintiff Lauren Cambra
62. Plaintiff LAUREN CAMBRA, and her husband, John Cambra are the parents of two
children, ages two-months-old and two-years-old. Mr. Cambra is employed full-time as a security
guard and attends school part-time. Plaintiff Cambra is currently on maternity leave.
63. The Cambra family’s total monthly income is $2,080, which is just below 100
percent of the federal poverty level. The Cambra family relies on the CYFD child care assistance
program to provide child care for their child while they are working. Plaintiff Cambra’s family has
been participating in the CYFD child care assistance program for one year.
64. Plaintiff Cambra initially applied for child care assistance in January 2017 and was
denied. At the time, her household income was $1,924 per month, placing her family below 100
percent of the federal poverty level. CYFD verbally informed her that her family was not eligible
for assistance because their income was over the program limit. Defendant did not provide any
information about a waitlist or about the family’s right to appeal the denial of benefits.
65. Plaintiff Cambra applied for child care assistance again in August of 2017 when Mr.
Cambra was in school and Ms. Cambra was working full time. As a household of three, their
income was $2,109 per month, placing them at 123 percent of the federal poverty level. CYFD
approved the family for twelve months of child care assistance benefits. The CYFD caseworker
set their copayment at $89 per month for the part-time care for one child, excluding gross receipts
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tax. Mr. Cambra now works as a full time security guard and Ms. Cambra has been on family leave
since July of 2018.
66. The Cambra family cannot afford the co-payment set by CYFD. In fact, the family
currently owes their child care provider $590 in overdue co-payments. Plaintiff Cambra and her
husband have had to delay making payments on their vehicle to be able to afford their child care
co-payment. They have also had to rely on their respective parents to provide diapers and wipes for
their children. As a result, the family has had to stop taking their son to day care. Ms. Cambra
needs to obtain child care for both her newborn and for her son starting in September of 2018, so
she can return to work. She recently made the difficult decision not to return to her previous position
as a supervisor, because her family could not afford child care for the hours she was required to be
at work. Ms. Cambra has instead found a lower paying job with reduced hours, so they do not incur
the same child care costs.
67. The Cambra family’s CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. There is no basis in regulation or statute that validates
the co-payment Defendant set for the Cambra family. Mr. and Ms. Cambra have no way to
determine if the co-payment is correct or to challenge the amount that Defendant requires the family
to pay. Affidavit of Lauren Cambra attached as Exhibit 10.
Plaintiff Monica Broshious
68. Plaintiff MONICA BROSHIOUS is a single mother two children, ages eight-years-
old and seven-years-old. She is employed full-time as a preschool teacher. Plaintiff Broshious’
monthly income is $1,954 per month, placing her family at 112 percent of the federal poverty level.
She relies on the CYFD child care assistance program to provide child care for her children while
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she is working. Plaintiff Broshious and her children have been participating in the child care
assistance program for three months.
69. Plaintiff Broshious applied for child care assistance in June of 2018. Based on her
income noted above, she was approved for twelve months of child care assistance. The CYFD
caseworker set my copayment at $152 per month for the full-time care of both children with some
afterhours care. This accounts for almost 8% of her family’s monthly income.
70. Ms. Broshious cannot afford her monthly copayment. In order to make the
payments, Ms. Broshious has had to delay paying other bills, delay buying groceries, and cut out
non-essential activities for the children.
71. Plaintiff Broshious’ CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. There is no basis in regulation or statute that validates
the co-payment Defendant set for Plaintiff Broshious’ family. Ms. Broshious has no way to
determine if the co-payment is correct or to challenge the amount that Defendant requires her family
to pay. Affidavit of Monica Broshious attached as Exhibit 11.
Plaintiff Samantha Rivera
72. Plaintiff SAMANTHA RIVERA is a single mother two children, ages two-years-
old and four-years-old. She is employed full-time as a preschool teacher. Plaintiff Rivera’s monthly
income is $1,678.22, placing her family below 100 percent of the federal poverty level. She relies
on the CYFD child care assistance program to provide full time child care for her children while
she is working. Plaintiff Rivera and her children have been participating in the child care assistance
program for three years.
73. In December of 2017, Plaintiff Rivera applied to renew her child care assistance
benefits. She was approved for a 12-month contract. Plaintiff Rivera’s current monthly co-payment
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is $110 per month. CYFD has not provided Ms. Rivera with an explanation of how the co-payment
was calculated.
74. Plaintiff Rivera cannot afford the monthly payment of $110. In order to pay for child
care, Ms. Rivera often cannot afford groceries for the week and is unable to pay utility bills and
other housing costs.
75. Plaintiff Rivera’s CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. There is no basis in regulation or statute that validates
the co-payment Defendant set for Plaintiff Rivera’s family. Plaintiff Rivera has no way to
determine if the co-payment is correct or to challenge the amount that Defendant requires her family
to pay. Affidavit of Samantha Rivera attached as Exhibit 12.
Nora Barrazas
76. Nora Barrazas is a witness in this lawsuit. Ms. Barrazas is a mother of three young
children, ages fifteen years old, seven years old and five years old. Ms. Barrazas is employed full-
time by a manufacturing company and her husband works full time in construction. Due to the
number of hours Ms. Barrazas and her husband works each week, the family needs child care for
two of her children. Ms. Barrazas and her children have participated in the CYFD child care
assistance program for 2 years.
77. In October of 2017, Nora Barrazas applied to renew her child care assistance case
with CYFD. The Barraza family’s monthly income at that time was $4,643, which put them just
below 200% of the federal poverty level. On October 31, 2017, the Department approved Ms.
Barrazas for a twelve-month contract and increased her family’s co-payment from $407.00 to
$557.00 per month. This is 12 percent of her family’s monthly income. CYFD did not explain the
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calculation method it used to calculate Ms. Barraza’s co-payment or to determine that it should
increase by the amount it did.
78. The Barrazas family cannot afford the co-payment set by CYFD. Because Ms.
Barrazas was unable to afford her co-payment, she contacted OLÉ and inquired whether OLÉ staff
could investigate her case and determine whether her co-payment was calculated in error.
79. An OLÉ staff member, Kristin Gamboa, contacted the NM Center on Law and
Poverty for assistance in determining if the copayment was correct. At that time, the co-payment
chart available on CYFD’s website did not contain any information on copays for families with the
Ms. Barrazas’ monthly family income of $4,624.95.
80. In November 2017, the NM Center on Law and Poverty requested a fair hearing on
behalf of Ms. Barrazas to contest the decrease in benefits to Ms. Barrazas’ family and the
correspoinding increase in child care copayment.
81. Despite regulations requiring CYFD to schedule fair hearings within 60 days of a
request (See NMAC 8.15.2.22(A)), the hearing was not initially scheduled until May 8, 2018,
almost 6 months after the request was made.
82. At the fair hearing, a CYFD Regional Operations Manager could not provide a basis
in law or policy that explains the calculation of Ms. Barrazas’ co-payment.
83. Ms. Barrazas’ family cannot afford any of the co-payments CYFD has set for her
family and as a result, has to purchase less food for her family and cannot pay her family’s phone
bill.
84. Ms. Barrazas’ CYFD case file does not contain the calculation method that
Defendant used to determine the co-payment. CYFD’s regulations do not contain a basis for the
payment Defendant set for Ms. Barrazas’ family. Plaintiff Barrazas has no way to determine if the
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co-payment is correct or to challenge the amount that Defendant requires her family to pay.
Affidavit of Nora Barrazas is attached as Exhibit 13.
Organizational Plaintiff - Organizing in the Land of Enchantment (OLÉ)
85. OLÉ is a non-profit, statewide membership organization of over 5,000 members that
works to expand access to early education for every child in New Mexico. OLÉ’s Working Families
Association is an organization of parents of young children, early educators, and early education
center owners who advocate for strengthening New Mexico's early childhood education system.
86. Defendant harms OLÉ members, including low income families, when Defendant
illegally denies child care assistance to members who need child care to work or attend school.
87. OLÉ members advocate for quality child care, in part, by participating in meetings
publicly held by CYFD and by explaining the needs and experiences of low income families who
seeking to access child care. OLÉ members submit written and verbal comments to CYFD when
the Department proposes regulatory and programmatic changes to the child care assistance
program.
88. For years, OLÉ has advocated for CYFD to adopt clear and comprehensive
eligibility standards and affordable co-payments.
89. OLÉ staff also help low-income, working parents navigate and understand CYFD’s
eligibility rules and requirements for participation in the child care assistance program. CYFD’s
illegal denial of assistance and failure to establish a regulatory basis for its eligibility determinations
causes OLÉ to divert resources from other initiatives to instead provide direct services and
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advocacy to help families navigate the child care assistance application process. The Affidavit of
OLÉ’s Executive Director, Andrea Serrano is attached as Exhibit 14.
90. For years, the Center on Law and Poverty has been working with OLÉ to address
Defendant’s illegal administration of the Child Care Assistance Program. The Center on Law and
Poverty drafted extensive comments on the state plan in 2015 and 2018. In April of 2018, the Center
wrote to CYFD and asked that the Department address violations of the State Rules Act and failure
to provide due process by taking the steps requested as relief in this complaint. See letters attached
as Exhibits 15 and 16.
91. Plaintiffs’ Counsel in this case met with Ann Marie De Lovato, CYFD Assistant
General Counsel on April 27, 2019 and discussed these issues. A letter summarizing the outcomes
of the meeting and requesting a response by May 16, 2018 is attached as Exhibit 17. Over four
months have passed and CYFD has not responded to the letter or taken steps to comply with the
law.
IV. CLAIMS FOR RELIEF
A. Defendant Denies Child Care Assistance to Eligible Families in violation of the State Rules Act and CYFD Act
92. New Mexico’s Children, Youth and Families Department Act (CYFD Act) requires
that any regulation promulgated by CYFD comply with the provisions of the CYFD Act and the
State Rules Act. NMSA 1978 § 9-2A-7(D).
93. Defendant cannot adopt, amend, or repeal a regulation affecting any person outside
the Department without a public hearing on the proposed action before the Secretary or a hearing
officer designated by the Secretary. NMSA 1978 § 9-2A-7 (D).
94. Should the Department choose to adopt, amend or repeal a regulation affecting any
person outside the Department, it must publish notification of the following at least 30 days prior
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to a public hearing date: 1) the subject matter of the regulation; 2) the action proposed to be taken;
3) the time and place of the hearing; 4) the manner in which interested persons may present their
views; and 5) the method by which copies of the proposed regulation or proposed amendment or
repeal of an existing regulation may be obtained. NMSA 1978 § 9-2A-7(D).
95. Except in the case of an emergency rule, no rule shall be valid or enforceable until
it is published in the New Mexico register as provided by the State Rules Act. NMSA § 1978 14-
4-5 (A).
96. The CYFD Act describes regulatory requirements that the Secretary must
specifically take when reducing services or benefit levels due to state budgetary constraints. NMSA
1978 § 9-2A-7 (E). This includes compliance with the State Rules Act. Id.
97. The New Mexico Rules Act at NMSA 1978 § 14-4-2 sets minimum standards that
all state agencies must follow in promulgating regulations. The Attorney General has promulgated
regulations that establish procedural rules for all state agencies to follow at NMAC 1.24.25. The
procedural requirements for rule-making in the state rules act are more specific than the CYFD act.
98. New Mexico’s State Rules Act defines a “rule” as “any rule, regulation, or standard,
including those that explicitly or implicitly implement or interpret a federal or state legal mandate
or other applicable law and amendments thereto or repeals and renewals thereof, issued or
promulgated by any agency and purporting to affect one or more agencies besides the agency
issuing the rule or to affect persons not members or employees of the issuing agency, including
affecting persons served by the agency.” NMSA 1978 14-4-2-F.
99. State agency actions or policies that meet the definition of a rule are not valid or
enforceable until they are promulgated according to the procedures in the NM Rules Act, which
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includes public notice in the form specified by the Act and a public hearing. NMSA 1978 § 14-4-
5 et al.
100. Defendant has implemented policies that restrict eligibility for child care assistance
without taking the steps required by the CYFD and NM Rules Act. These policies are not published
in the NM Register and as such are not valid or enforceable.
i. Defendant illegally caps eligibility for child care assistance at 150 percent of the federal poverty level.
101. Defendant’s policy of restricting eligibility for child care assistance to families with
incomes below 150 percent of federal poverty level is a rule as defined in NMSA 1978 § 14-4-2(F)
because it is a standard for determining eligibility for the program and impact people outside the
Department, including people that the Department serves.
102. CYFD implemented the eligibility restriction without notice, public comment, or
holding a hearing in violation of the NM Rules Act, NMSA 1978 §§ 14-4-5.2(A), 14-4-5.3 and the
CYFD Act, at NMSA 1978 § 9-2A-7(D) and (E). The criteria are not published in the state register
in violation of NMSA 1978 § 14-4-5(A).
103. As a result, Defendant is illegally denying child care assistance to families with
monthly incomes greater than 150 percent of the federal poverty level. Defendant’s regulations
establish priorities for assistance that include families with incomes up to 200% of the federal
poverty level. See NMAC 8.15.2.9 (F).
104. Defendant’s illegal restriction on eligibility causes the named Plaintiffs and
members of the Claimant Class to go without child care assistance. Named Plaintiffs and members
of the Claimant Class cannot meet their basic needs because they are either paying a large
percentage of their income towards assistance or are unable to work or attend school because they
do not have access to child care assistance.
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ii. Defendant requires low income families to pay a portion of child care costs based on an illegal calculation
105. The criteria used by the Department to determine the portion of child care costs that
Defendant pays for eligible applicants and the portion that the client must pay meet the definition
of a rule as defined in NMSA 1978 § 14-4-2(F) because they are a standard for determining
eligibility for child care assistance and impact people that are not employees of the Department and
that are served by the agency.
106. CYFD determines the amount of a families’ co-payment using a co-payment chart
and calculations programmed into the CYFD IT system, known as FACTS. Neither the co-payment
chart nor the calculation methodology have been promulgated into regulation. In fact, even CYFD’s
co-pay procedure does not explain the calculation methodology. See Exhibit 5.
107. CYFD has not a held a hearing or sought public comment on co-payment levels and
the criteria it uses to calculate co-payments based on income, family size and hours the child is in
care, in violation of the State Rules Act, NMSA 1978 § §14-4-5.2(A), 14-4-5.3 and the CYFD Act,
at NMSA 1978 § 9-2A-7(D). The criteria are not published in the state register in violation of
NMSA 1978 § 14-4-5(A).
108. Named Plaintiffs and the members of the Claimant Class are required to pay child
care co-payments that are not affordable and that were not established through the public process
required by state law. Without a regulation that explains how co-payments are calculated, families
cannot determine what their co-payment should be when they are considering enrolling in the
program and families have no way of determining if the co-payment CYFD requires them to pay is
correct. If the co-payment is incorrect, the family has no way to challenge it.
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109. When Defendant fails to promulgate eligibility requirements into regulation, New
Mexico families and organizations like Plaintiff OLÉ are denied their due process right to comment
on Defendant’s eligibility standards for child care assistance, as required by state law.
B. Defendant Denies Child Care Assistance without Due Process
110. New Mexico’s State Constitution provides that “no person shall be deprived of life,
liberty or property without due process of law.” N.M. Const. art. II, § 18.
111. Because child care assistance is a protected property right in New Mexico,
Defendant cannot deny assistance without due process.
112. Defendant violates the constitutional rights of eligible families by denying child care
assistance on the basis of unconstitutionally vague regulations and without providing notice and an
opportunity to appeal.
C. CYFD’s Vague Regulations
113. A regulation is unconstitutionally vague and denies due process if men of common
intelligence must guess at its meaning and differ as to its application. Vague regulations violate due
process if they inhibit a constitutionally protected interest.
114. Defendant’s regulations do not provide enough information for a family to
determine the amount of child care assistance for which they are eligible and what portion of child
care costs they must pay. Yet, Defendant uses these regulations to determine families eligible for a
specific amount of child care assistance and to determine what percentage of costs a family must
pay.
115. The regulations only state: 1) co-payments will be based upon the size and income
of the household, 2) co-payments for each additional child are determined at one half the co-
payment for the previous child 3) that co-payments for children in part-time care are determined
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based upon the block of time that the child is in care, and 4) that a copayment chart will be published
on Defendant’s website. See NMAC 8.15.2.13(A)-(C). Using this information, families cannot tell
what co-payment the Department should require them to pay.
116. Defendant’s regulations do not: 1) explain how size and income of a household
impact the amount a family must pay for child care when receiving assistance, 2) how the time in
care reduces or increase the amount a participant must pay per child, and 3) how full-time and part-
time care are defined for purposes of co-payments. Even using the copayment chart of Defendant’s
website, a family could not determine the amount of benefits they are eligible for based on the
factors described above.
117. Due to the ambiguity in the Department’s co-payment and eligibility regulations,
families denied assistance or that receive reduced benefits cannot determine if the decision was
correct. This means that the family never receives actual notice of the basis of an eligibility decision
and therefore cannot challenge a negative decision.
D. Defendant denies Child Care Assistance without notice and information about the right to appeal
118. Procedural due process requires notice and the opportunity to be heard before the
State deprives a constitutionally protected interest or right.
119. Adequate notice must be reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections.” The Department’s regulations codify the right to a fair hearing at NMAC 8.15.22.
120. Defendant does not have a standard procedure for processing applications and
notifying families of the reason a negative action was taken in their case and about the opportunity
to appeal. As a result, families have no way to challenge a denial or reduction in benefits.
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121. Defendant routinely denies applications for assistance by turning families away from
local offices that workers believe are not eligible for assistance. Defendant does not consistently
provide written notice and does not inform families of their right to a fair hearing.
122. In fact, Defendant’s Assistant General Counsel told Plaintiffs’ Counsel that CYFD
has never held a fair hearing concerning a decision to deny or reduce child care assistance.
IRREPARABLE HARM AND NEED FOR PERMANENT INJUNCTIVE RELIEF
1. As a direct and proximate result of the conduct of Defendants, Plaintiffs and the
Claimant Class have suffered and continue to suffer the violation of their statutory and
constitutional rights.
123. Plaintiffs and the Claimant Class are suffering and will continue to suffer immediate and
irreparable harm unless this Court issues a preliminary and permanent injunction requiring
Defendants to rescind their unlawful cap on eligibility for child care assistance and lawfully
promulgate eligibility criteria for child care assistance into regulation. Without an injunction,
members of the Claimant Class: a) will be unable to access child care assistance if they have
incomes between 150 and 200 percent of the federal poverty level in violation of CYFD’s
current regulations and state rulemaking law, b) will be denied assistance with all child care
costs and instead receive a partial benefit amount that is illegally based on a calculation that is
not in regulation or publically available and c) will continue to be denied basic due process
required by the NM Constitution because families cannot challenge an incorrect eligibility
decision if there is no basis for Defendant’s benefit calculation in regulation and Defendant
does not provide adequate notice of eligibility decisions. Plaintiffs facing the denial of child
care assistance have to forego purchasing basic necessities, like groceries or paying for housing
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in order to pay for child care assistance. As such, Plaintiffs and members of the Claimant Class
will suffer irreparable harm absent injunctive relief.
2. Plaintiffs have no adequate remedy at law.
V. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order:
1. Provide child care assistance to eligible families seeking child care assistance with
incomes up to 200% of the federal poverty level until and unless the Department
lawfully promulgates a different eligibility standard in regulation.
2. Promulgate regulations in accordance with the NM Rules Act and CYFD Act that
clearly state all standards that are used to determine if a family is eligible for child
care assistance and how much assistance a family will receive. This includes the
method and base amounts the Department uses to calculate co-payments.
3. Immediately implement a standardized system to adequately notify families denied
any amount of child care assistance in writing of the reason for a denial or reduction
in benefits and information about their right to appeal.
4. Grant any further relief that this Court may deem necessary and proper.
Respectfully submitted,
NM CENTER ON LAW AND POVERTY
By: /s/ Sovereign Hager Sovereign Hager [email protected] Monica Ault [email protected] NM CENTER ON LAW AND POVERTY 924 Park Ave SW, Suite C Albuquerque, New Mexico 87102 Phone: (505) 255-2840 Fax: (505) 255-2778
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Counsel for Plaintiffs
