Copyright © 2022 Albuquerque Journal
A former state Children, Youth and Families investigator has testified that she tried in vain to remove a 4-year-old boy from an abusive and life-threatening home situation, and was directed by her supervisors to erase and edit her case notes after he was killed by his mother’s roommate.
The allegations of a cover-up are the latest in the ongoing civil lawsuit filed against CYFD by the estate of James Dunklee Cruz. The boy had been the subject of 10 referrals of child abuse or neglect before he was found unresponsive Dec. 10, 2019, in an East Central Avenue apartment shortly after his mother left for work
He was beaten to death by a man they were staying with, Zerrick Marquez – a man CYFD warned the mother not to live with. Marquez pleaded guilty to child abuse resulting in death on May 5; he has since indicated he wants to withdraw his plea.
At issue in the civil case is why child welfare workers never filed for legal custody of the boy, even after he had suffered a shoulder injury, sexual abuse and told police and social workers that he was being hurt by men in his mother’s life.
A video taken while James was being interviewed by police and the social worker shows him sitting on a table at an urgent care center, his arm in a sling, politely answering questions and engaging with the adults. Two months later, he was dead from new injuries.
Instead of taking James into CYFD custody in the last three months of his life, CYFD workers relied on his mother to adhere to a series of “safety plans” to direct where he would live with his mother without ensuring his long-term safety and well-being, states the lawsuit.
“His body spoke for itself. The injuries speak for themselves. On top of the physical proof, the doctors’ concerns, the injuries, the stories that don’t add up, we had a four-year-old saying to the adults, he was being hurt. What more does it take to know that he needs to be taken away from that environment?” said Sara Crecca, one of the attorneys who filed suit against CYFD.
A CYFD spokesman said Friday that the agency doesn’t comment on pending litigation.
The Journal has reported extensively on the case and the lawsuit’s claims. But new details of the CYFD investigation and allegations of a CYFD cover-up surfaced during an April 25 sworn deposition of the lead investigator on the case, Jessica Etoll.
Now a licensed social worker in private practice, Etoll was named as a defendant in the wrongful death lawsuit, which was filed by Crecca and attorney Rachel Berenson of Albuquerque.
The new revelations prompted the attorneys to file a motion in court Thursday to amend the state district court lawsuit. A copy of the proposed amended lawsuit was filed as an exhibit.
“Ms. Etoll knew James was being severely abused and believed CYFD should immediately take custody of the child,” according to the exhibit. But Etoll needed her supervisors to ask the CYFD legal division to initiate the paperwork to file legal custody.
One supervisor told her to “calm down,” and another, a county case manager who had the authority to approve taking him into custody, dragged her feet, but finally relented, the exhibit alleges. By that time, James couldn’t be located.
At the time of his death the boy was in Albuquerque living with Marquez, Marquez’s girlfriend Pamela Esparza, and his mother, Krista Cruz, who was 22 years old at the time.
Cruz, who herself had been in CYFD foster care, was homeless and had been staying with different friends for months.
The Office of Medical Investigator determined the boy died of blunt trauma to his head and his torso. An autopsy also revealed healing jaw fractures and other healing head trauma that occurred “at a time much earlier (weeks) than the acute injuries,” the exhibit states.
Upon learning of the boy’s death, Etoll’s supervisors decided to change her investigative notes “to eliminate direct evidence of CYFD liability,” the exhibit states.
According to Etoll, supervisors Marvin Paul and Melissa Garcia asked where her notes were regarding the Dunklee Cruz investigation. She told them she hadn’t yet formally entered them into the CYFD information system but had them on her work computer, the exhibit stated.
She alleges she was told to provide the supervisors with copies of the notes and then was directed to “make a number of specific deletions and edits prior to entering them into the formal (CYFD) system,” the exhibit states.
She was also directed to erase the portion of the notes that revealed that her supervisor, Garcia, had decided to begin the process of taking James into CYFD custody, the exhibit alleges. By that time, however, the boy could not be located and was not taken into CYFD custody.
“Mr. Paul and Ms. Garcia caused Ms. Etoll’s notes to undergo extensive editing changing how she worded her observations and removing notes they didn’t want to be recorded in the permanent (CYFD) record due to James’s death and the anticipated investigation into their actions and inactions,” the exhibit alleges.
The original and unedited copy of her observations and conclusions was saved on the hard drive of her work computer, the motion states. At the time, Etoll had given her two-weeks notice that she was resigning; she had made the decision to leave before James’ death. She turned the computer into CYFD on her last day of employment, Dec. 14, 2019, four days after James died.
She also turned in her CYFD cellphone, which contained photos, text messages to and from her supervisors, another investigator and Krista Cruz. “Upon information and belief, CYFD caused a `factory reset’ of Ms. Etoll’s phone to occur, rather than preserve this material evidence, even as the agency was opening its own investigation into James’s death,” the exhibit states.
The exhibit also alleges CYFD reset Etoll’s work computer, “erasing the only copy of her investigation notes that were not redacted and revised by her supervisors.”
Depositions of Garcia, who no longer works for CYFD, and Paul have not yet been scheduled in the case. Neither Garcia nor Paul could be reached for comment Friday.
In response to Journal questions on Friday, CYFD spokesman Charlie Pabst-Moore issued a statement via email, “This child’s death, as any child’s death, is a tragedy. Zerrick Marquez has pled guilty to abuse resulting in the death of this innocent child. The Department does not comment on pending litigation, but does note that the Department is confident in its position and remains committed to improving New Mexico’s child welfare system and preventing incidents like this from happening.”
Meanwhile, Cruz and Esparza are awaiting trial on charges of reckless child abuse resulting in death.
Life filled with abuse
The lawsuit alleges James Dunklee Cruz’s short life “had been filled with abuse, both sexual and physical, by numerous men his mother had left him with.”
One caller reported to CYFD that James was wandering around a Rio Rancho apartment complex in September 2019 “on a daily basis for hours at a time and would ask people for food.”
A month later, James was brought to a Duke City Urgent Care with multiple injuries, the lawsuit states, “including an injured shoulder, and bruising on the shaft of his penis, and a black eye.” He disclosed to someone who called CYFD that his mother’s boyfriend at the time touched him inappropriately while he was in the shower.
The exhibit states after receiving the allegations of abuse or neglect, CYFD imposed “safety plans” and other verbal directives on Cruz regarding his care. Each plan required her to fulfill certain obligations “specifically in exchange” for CYFD declining to exercise its authority to take him into legal custody.
For instance, she was not to reside with Marquez or his girlfriend, Esparza, in October 2019 and she had to place her son in day care for his safety while she was at work.
The state Legislature, by enacting the state Children’s Code, has emphasized keeping a family together whenever possible. But Crecca told the Journal on Friday that CYFD is responsible under the law to investigate suspected child abuse and neglect and assess the risk of future harm to the child.
“Something dramatic needs to change,” Crecca told the Journal. “The administration has got to pay attention to this; these children need to be a priority.”