Dec. 5 – The New Mexico Children, Youth and Families Department is accused in a new lawsuit of failing to protect a week-old baby from serious head injuries after multiple red flags were raised about the parents’ assets to take care of the child.
The lawsuit, filed Tuesday in Santa Fe District Court, claims the boy suffered permanent brain damage when his father hit a door on his head during an argument with his mother. The incident came after a series of medical emergencies raised concerns that the boy was suffering from abuse and neglect, the complaint states, and CYFD, named as the defendant, failed to act on reports.
“It would be like when your house burns down and you call the fire department and they keep saying, ‘Eh, we’re kind of busy, maybe we’ll deal with this later,'” attorney Ben Gubernick said. , representing the child’s guardian ad litem, who is named as plaintiff. A guardian ad litem is a person appointed by the court to represent the interests of a child in legal proceedings.
“This [was] an emergency; everyone recognized that it was so. And even CYFD classified this as an emergency, and they did nothing. Until it was too late,” Gubernick said.
CYFD spokesperson Jessica Preston wrote in an email that the agency had not yet been served with the lawsuit, and that it would be “premature to comment at this time.”
“Once we have had the opportunity to review the claims, we will respond appropriately through the legal process,” she wrote.
The lawsuit seeks compensatory and other damages ordered by the court.
In mid-September 2023, the lawsuit states, the boy’s parents took him to MountainView Regional Medical Center in Las Cruces. They told medical staff that the boy had rolled off the bed and hit his head while they were fighting in another room.
However, staff were skeptical of the story, noting that young babies generally cannot roll on their own. The child was also underweight, the suit says, and was diagnosed with failure to thrive.
Medical staff noted that the child may have been neglected and determined the incident was not an accident, the complaint said.
The child’s caregivers contacted CYFD, but the agency initially declined to take a report, the complaint alleges, adding that the reason was “supposedly because they were too busy.” When the hospital was able to file a report, the lawsuit says, the department declined to send anyone to investigate.
The child was taken later that day to Memorial Medical Center, also in Las Cruces, where hospital staff also suspected abuse or neglect — and also encountered roadblocks with CYFD, the complaint alleges. Clinicians at both medical centers questioned the parents’ fitness to care for the boy, noting mental health and behavioral problems and that the parents were always arguing, the complaint said.
Yet CYFD failed to take action, the complaint alleges, and the boy remained in the custody of his parents.
About two months later, in mid-November, the child’s parents called a nurse advice line because the boy was experiencing eye drainage and fever, the complaint said. But when a nurse told them to take the child to the emergency room, the parents refused, resulting in another report to CYFD about possible abuse and neglect.
This time, the agency marked the incident as an emergency, the complaint said, but still failed to investigate or take the child into custody.
Less than a week later, the boy’s father slammed a door on the child’s head while arguing with his mother, the complaint alleges. The child suffered irreversible brain damage. The parents were arrested and charged in the incident, and the boy was taken to a hospital in El Paso.
The mother was charged with child abuse resulting in great bodily harm, while the father was charged with child abuse not resulting in great bodily harm, court records show.
Both cases were dismissed without prejudice in March, with prosecutors noting that the charges could be refiled later.
The Texas Protective Services Agency took the boy into custody and later transferred him to CYFD, which placed him with a foster parent.
Gubernick said the child remains in custody, and although he is now over a year old, it is not yet clear what the long-term effects of the injury will be on his life.
Esteban Candelaria is a member of the staff at Report for America, a national service program that places journalists in local newsrooms. He is responsible for child welfare and the state’s Department of Children, Youth and Families. Learn more about Report for America at reportforamerica.org.
