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CYFD failure led to death of boy, lawsuit says

James Dunklee Cruz was beaten to death in 2019, allegedly by one of his mother’s male friends, according to a lawsuit filed Tuesday. (Courtesy of Rachel Berenson)

Copyright © 2021 Albuquerque Journal

At age 17, Krista Cruz was still in foster care when her second son, James Dunklee Cruz, was born.

The New Mexico Children, Youth and Families Department knew Krista well – she had been a ward of the state for seven years after experiencing physical abuse, neglect, excessive discipline and educational neglect at home.

Yet over the next four years, her young son James lived in danger, himself a victim of abuse and neglect before he was beaten to death in late 2019, allegedly by one of his mother’s male friends, according to a wrongful death lawsuit filed Tuesday by a personal representative for the boy’s estate.

Had state child protective services sought to remove James from his mother after investigating multiple allegations of abuse and neglect, he would be alive today, according to the lawsuit filed against CYFD. Instead, the agency spent years trying to keep the two together, at the boy’s peril, the lawsuit alleges.

For instance, CYFD had received three reports of abuse or neglect of James before he was 7 months old.

At age 3, the child would wander alone in the middle of the night outside his mother’s Albuquerque apartment, and once was found huddled in the dark under the stairs at the apartment complex clutching two teddy bears.

In the months before he was killed, CYFD learned that the boy had reported he had been physically and sexually hurt and that he slept in a closet at the home of his mother, whom he called Miss Krista.

In the months before he was killed, the Children, Youth and Families Department learned James Dunklee Cruz had reported he had been physically and sexually hurt. (Courtesy of Rachel Berenson)

CYFD received more than 10 reports from the community, including his mother’s friends and family, of physical neglect and abuse, including sexual abuse.

But unlike in the case of his mother, CYFD never sought to legally remove him from his mother so he could live in a safe home.

“This was preventable in that this case was on their (CYFD) radar in so many directions,” Albuquerque attorney Sara Crecca said.

CYFD did not respond to a request for comment.

As Krista’s former legal guardian, CYFD had years of institutional knowledge of her mental health issues, history of trauma due to sexual abuse, involvement in domestic violence relationships, and inability to regulate her emotions and parent a young child, the lawsuit alleges.

“CYFD knew James was in danger beginning just days after his birth (in January 2015) and continuing throughout the four years of his life,” the lawsuit says.

James died on Dec. 10, 2019, minutes after arriving at University of New Mexico Hospital with multiple injuries to his head and chest.

A friend Krista had left him with, Zerrick Marquez, is jailed on a no-bond hold awaiting trial in Albuquerque on a charge of felony first-degree child abuse resulting in death. Krista has not been charged.

Cruz lost custody of her first-born son in 2014, after the boy’s paternal family filed a civil action alleging she was an unfit parent.

Assessment tool

Krista, who couldn’t be reached for comment Wednesday, spent ages 11 through 18 in the custody of CYFD.

Her mother’s parental rights were terminated in 2009 after CYFD received at least 22 referrals of abuse and neglect and urged she be removed from the home.

Yet after James was born, Krista and her infant child were allowed to move in with her mother, the lawsuit alleges.

Krista’s mother’s own history of abuse and neglect should have precluded her approval as a caregiver, but instead of enforcing its own policy, CYFD concluded there were “No Threats Identified,”the lawsuit says.

The lawsuit alleges CYFD received a referral alleging inadequate supervision of James and emotional abuse by Krista within days of his birth in January 2015.

CYFD tried repeatedly over the years to get his mother to adhere to a “safety plan” to improve her parenting skills but failed to enforce it, the lawsuit says.

CYFD employed a risk assessment tool to determine the boy’s safety with his mother. But the lawsuit alleges CYFD investigators improperly used the tool, which underestimated the level of risk to the child.

“I don’t know what barrier there was to plain old common sense,” Crecca added.

The department never initiated custody proceedings in Children’s Court, as was its “clear obligation,” the lawsuit says.

“If they had, the judge would have seen what was going on and the mother would not have been able to retain custody,” attorney Rachel Berenson said in an interview Wednesday.

The lawsuit paints a long-running portrait of abuse.

After one referral, police and CYFD arrived at Krista’s apartment and found the odor of feces and cat urine so overwhelming a CYFD investigator had to back out before vomiting.

The boy, then 3, was observed to be living barricaded in his room by animal gates with a brown substance smeared on the wall. A quarter-size bruise was noticed on the right cheek of his face.

Six months before his death, CYFD received another report that he had bruises on his back and on his leg. He had not been potty-trained. He was “full of anger” and disclosed he had been hit with a shoe while in his mother’s care. He became very upset when her name was mentioned.

Krista said that a boyfriend spanked her son on multiple occasions and that she had to pull the boy away. She didn’t report the incidents to authorities “due to her financial status and high level of stress.”

“CYFD investigators noted that in an interview with James he disclosed he was not safe with ‘Miss Krista,’ was scared of her ‘friend’ and that he had been hit with a hanger and a brush on his butt.”

Sometimes Cruz would drop off James with friends and left him alone at times.

When she told a CYFD investigator her son would often leave “in the middle of the night,” the investigator advised her to get a sliding lock to keep him from finding his way out, the lawsuit alleges.

In August 2019, someone notified CYFD that she saw the boy “wandering” around an apartment complex on a daily basis for hours at a time, asking people for food. At a Safe House interview in October 2019, he revealed his mother sometimes didn’t feed him.

A law enforcement officer dispatched to do a welfare check reported finding James “under the stairs at the apartment where he was living with Krista.” He was alone holding two teddy bears.

CYFD was still investigating earlier referrals when his mother in October 2019 took James to an urgent care center after he sustained multiple injuries, including an injured shoulder, bruising on his penis and a black eye. The boy disclosed to a “source who then called CYFD” that his mother’s boyfriend had touched him inappropriately while he was in the shower. And the boy added, he took lots of showers with the man.

Cruz said the man was her ex-boyfriend and explained her son’s injuries as due to a fall in the park. She told CYFD she knew nothing about a sexual assault. Ultimately, CYFD lost contact with Cruz and her son.

The lawsuit seeks monetary damages, but also asks that new policies and procedures be instituted and wants CYFD investigators to be trained to address “repeated failures presented in this case.”


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