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Omaree death settlement cloaked in secrecy

In this police lapel camera photo taken in June 2013, six months before his murder, Omaree Varela peeks out of a door of his residence while Albuquerque police officers leave the scene. They had responded to a 911 call at the home. (Source: Albuquerque Police Department)

Copyright © 2019 Albuquerque Journal

The brutal death of 9-year-old Omaree Varela in 2013 served as a wake-up call for change in how New Mexico protects, or doesn’t protect, its vulnerable children.

But the very public details of his birth to a drug-addicted mother in prison, his beating death, and the subsequent high-profile criminal prosecutions of his mother and stepfather stand in stark contrast to the resolution of a wrongful death lawsuit filed by his estate against the state Children, Youth and Families Department.

The settlement paid to Omaree’s three siblings is cloaked in confidentiality and confusion.

The public’s right to know the amount of legal settlements paid by state Risk Management has made news in recent months because of unusual provisions adopted by the administration of then-Gov. Susana Martinez that enforced confidentiality on the parties for delayed periods of time – sometimes years.

But in the case of the Omaree Varela lawsuit, taxpayers may never learn the amount paid because of a state district judge’s order. Even the order sealing the settlement details isn’t public – an unusual move that an attorney in the case described as possibly an “error.”

Judge Nancy Franchini

State District Judge Nancy Franchini of Albuquerque, who issued the sealing order in 2017, told the Journal through a spokesman that the court couldn’t comment on a case where there is “a possibility of subsequent proceedings.”

State Risk Management officials recently said the judge’s order keeps them from revealing the settlement amount.

Yet Martinez administration officials last year gave a different reason for denying a Journal public records request for the information.

The Journal was told simply that not enough time had passed to legally permit disclosure. The sealing order was never mentioned.

Tragic death

Two days after Christmas in 2013, Omaree was found dead at his Northeast Albuquerque home, brutally beaten with injuries to the head, chest, abdomen, back, right and left forearms, left knee, mid-right shin and tongue. He had lost about 25% of his blood volume due to internal bleeding.

Omaree Varela was killed in 2013. (Courtesy of Shana Smith)

His body also showed signs of prior physical abuse, including burn marks and bruises.

His death spurred a torrent of criticism of Albuquerque police and the state CYFD for failing to remove him from the home despite earlier reports of abuse and informal intervention by state social workers.

In 2015, CYFD sought $10 million in legislative appropriations to adopt procedures and policies aimed at preventing similar deaths.

Meanwhile, Omaree’s mother, Synthia Varela-Casaus, was sentenced to 40 years in prison for second-degree murder after admitting that she kicked her son “too hard,” causing his death.

His stepfather, Stephen Casaus, was initially sentenced to 30 years in prison for child abuse resulting in death and other charges. But the state Court of Appeals last year overturned his most serious conviction related to the failure to call for medical help for the dying boy. His prison sentence in the case was cut to 12 years.

Legal action

The wrongful death lawsuit against CYFD accused social workers of failing to exercise professional judgment, bungling their oversight, and thus increasing the danger that Omaree would be harmed.

The APD wasn’t named as a defendant. But five police officers were disciplined, including one who was fired, for failing to properly respond to earlier calls of possible abuse, including when Omaree reported to school officials in 2012 that he’d been beaten at home by his mother.

After two years of litigation, the state agreed to settle the wrongful death case in the fall of 2017. By then, Omaree’s mother and biological father agreed not to seek any of the proceeds, the court records show.

The final record in the case, filed in June 2018, states “the proceeds of the Wrongful Death estate shall be divided equally amongst the three children (of Synthia Varela-Casaus).” The beneficiaries were described as “one adult child and two minor children, N.V. and E.V.”

The judge’s Nov. 6, 2017, order explaining why the settlement should be sealed is itself sealed.

Rachel Higgins, an attorney who represented a lawyer for Omaree’s younger sister, told the Journal her interpretation of the judge’s order is that only the specific amount paid on behalf of the minor children beneficiaries would be sealed – not the overall total.

Moreover, Higgins said she didn’t know why the order to seal the settlement isn’t public.

“That doesn’t make sense to me. I wonder if that was simply an error.”

During a phone interview, Higgins read a portion of the four-page sealed order to the Journal.

The court determined the amount of settlement “shall remain confidential for the period of time allowed by law and the amount and details of the settlement specifically related to the minor child is confidential and shall not be disclosed or made a part of a public record in any proceeding, report or pleading filed with and or by the court in this matter,” Higgins told the Journal.

The minor children who benefited from the settlement have an interest in confidentiality that “the court intended to protect,” she added.

State law requires settlements paid by state Risk Management to remain secret for a period of time – at least six months – after they are reached.

“The way I read the order is that there’s a statutory period during which confidentiality of the amount of settlement in general may remain confidential,” Higgins said. “And I think that is a six-month period of time based on the statute. That’s my interpretation.”

State risk officials in the Gov. Michelle Lujan Grisham administration told the Journal they can’t divulge even the overall amount paid to the three siblings, including the adult child.

Secretary Ken Ortiz

“We spent some time reviewing your request and basically because the judge in this case directed that all information and records pertaining to this request is under a court seal we are unable to provide any documents related to this case,” said Ken Ortiz, cabinet secretary of the General Services Department, which oversees Risk Management.

Ortiz said his staff checked “with some attorneys and had a discussion with the Attorney General’s Office and everyone seems to agree based on this court ordered seal.”

Higgins said it is likely state officials “are being extra careful and I think it’s legitimate to have confusion about whether the settlement amount remaining confidential for a period of time allowed by law refers to a minor children’s minority status until they reach the age of 18 or the IPRA (state Inspection of Public Records) statute.”

“I think it’s legitimate not to know which the court meant. My guess is that the court would not intend to restrict the amount of settlement generally beyond statute, because how could she?”

Off-limits

Higgins suggested the Journal contact the judge about the order.

Judge Franchini, through the spokesman, responded that, in general, “the facts and evidence supporting the legal basis to seal portions of a record can be found in the motion to seal, which is filed by the parties, and the order to seal entered by the Court.”

In the Varela case, the motion to seal was filed by Higgins and the other parties on Oct. 31, 2017 and is public.

The motion asked the judge to seal guardian ad litem reports and any records related to court proceedings involving the settlement for one of Omaree’s minor siblings. The motion stated that there was an “interest in protecting the settlement of this minor from predation by the public.”

The motion also stated that the “parties have agreed to confidentiality as to the amount of settlement as allowed by law,” but the motion didn’t specifically ask that the total amount paid to all three beneficiaries be kept secret forever.

Settlement scrutiny

Secret settlements made by the state have come under scrutiny in recent months, with state Risk Management officials and some legislators advocating reform of the current law setting out when settlements become public.

Under state law, state officials can keep settlements secret for at least 180 days, until the case is closed, or as long as the applicable statute of limitations is in effect. Depending on the wrongdoing alleged, that can take up to four years or longer.

Ortiz told the Journal that he hopes the Legislature will change the law to ensure more transparency as to how public money is spent to settle lawsuits. However, Risk Management officials say a judge’s order sealing a settlement will still take precedent.


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