CYFD blamed in child's 2020 death

Child welfare workers in Clovis had a decision to make on the morning of April 14, 2020, after two children, ages 9 and 7, lost the only caregiver they ever knew.

The brother and sister had been wandering around their apartment complex looking for help after discovering their mother, Jennifer Rubino, dead on the couch.

Within hours, CYFD investigators turned the grief-stricken children over to a man who hadn’t been part of their lives, hadn’t seen them in several years, and had been previously investigated by the agency for child abuse of the younger child, Samantha.

But Juan Lerma was identified as their biological father, and the children went to live with him in Carlsbad, some 180 miles away. Within weeks, the state Children, Youth and Families Department closed the case, leaving the children “isolated and without any access to help or oversight,” according to a newly filed federal civil rights lawsuit.

That was the beginning of the end for Samantha, whose body was found three months later in a trash can at Lerma’s home. She died of blunt force trauma and had signs of prior physical abuse.

Lerma was sentenced to life in prison last December, after being convicted of first-degree child abuse resulting in death and tampering with evidence.

His conviction came after Samantha’s 11-year-old brother testified at trial, with a stress ball and a court-approved emotional support dog nearby, court records show.

The brother, identified as M.L., recounted how Lerma starved him at times and physically abused him and his sister, once hitting her with a two-by-four.

The day Samantha died, her beating was “worse than normal,” the boy told the jury. At one point during the hours-long physical abuse, he said his little sister fell down and “didn’t get back up.”

CYFD critics say the case is yet another example of how the troubled agency has failed to protect at-risk children. The new lawsuit contends CYFD workers knew or should have known Lerma was dangerous but ignored the rules and the evidence in their own files.

CYFD officials have admitted no wrongdoing in the case. They defend the decision to put Lerma in charge of the children’s care, according to court filings, saying the agency acted in “good faith.”

Because of the pending litigation, CYFD spokeswoman Jessica Preston told the Journal, “We are unable to respond publicly at this time, however all statements will be provided in court.”

Meanwhile, M.L., who suffered PTSD, was initially placed in treatment foster care and now lives with his maternal grandparents in Texas.

‘Broken’ system

The new lawsuit comes at a time when CYFD’s interim chief, Teresa Casados, a top aide to Gov. Michelle Lujan Grisham, has vowed to transform the agency.

She has emphasized reunification of families when possible, boosting the training of employees, and offering services to at-risk parents who need help. The governor earlier this year ordered a shakeup at the agency, calling the system “fundamentally broken.” The search for a permanent cabinet secretary is in its fifth month, and last week CYFD announced a rapid hire event to fill up to 300 vacancies in its protective services division.

Lawyers representing Samantha’s estate initially sued CYFD in state district court in Santa Fe last year, and a trial on those claims is set for January. Discovery in that case uncovered new information that led to the 45-page federal civil rights lawsuit against longtime CYFD supervisor Vickie Hobbs and investigator Tony Bustos, who still work for CYFD.

“Through this case, Plaintiffs hope to raise and bring to light the most important principle of the child welfare system: the safety of the children must be paramount,” said attorneys, F. Michael Hart and Ben Davis, who represent the estate. “CYFD must always consider the children’s safety first before any concerns about reunification are considered.”

The federal lawsuit alleges CYFD investigators in the agency’s Curry County office could have saved Samantha’s life had they heeded policies and obvious red flags. A supervisor who had once investigated Lerma knew he had “dangerous propensities” and that the children had previously made disclosures that he had abused them or threatened to abuse them, the lawsuit stated. But the workers ignored the children, the lawsuit alleges.

In giving Lerma custody of the children, CYFD never did a required home visit to his home or a safety assessment to determine whether the children would be safe in his care, the lawsuit states.

The federal lawsuit alleges that Hobbs and Bustos “acted recklessly and willfully ignored pertinent information of which they were aware...that directly addressed the identified risk to Samantha and M.L. — Juan Lerma’s physical abuse toward the children.”

They allegedly placed the children in danger “when they otherwise would not have been subjected to that risk.”

Troubled parents

Jennifer Rubino was 47 years old when she died April 14, 2020. She fell ill the day before and was unable to get into a hospital. Weeks earlier, the first COVID-19 pandemic cases had been reported in New Mexico.

CYFD investigators searching for a place for the children were aware that Rubino’s parents lived in Texas. Jennifer Rubino had also signed a power of attorney in 2013 so that M.L. and Samantha could live with an alternate caregiver if anything happened to her.

Lerma had been in and out of the children’s lives since about late 2009 and was considered their father, though he hadn’t taken a DNA test to prove as much and there was no father identified on their birth certificates, the lawsuit alleges.

Rubino expressed her frustration in one Facebook post in 2012 just days before Samantha was born.

“… Now as far as (M.L.) an Symanthas dad im not sure wut 2do...he is worthless doesn’t even want pictures of his own children or even to kno if theyre good..grant u Symanthas not quite here yet but he has said it loud n clear already...my ? is wut do u tell the kiddos? it breaks my heart to kno that my babies will have to endure my mistakes as far as their father....”

The first of six CYFD investigations of the family came in 2010. At the time Lerma was charged with aggravated assault for breaking Jennifer Rubino’s arm, as well as child abuse involving Rubino’s older son with another father. Lerma received two years probation and a conditional discharge.

Three years later, Rubino herself was investigated by CYFD after her son, M.L. was walking outside her Clovis apartment, wearing diapers and a hoodie. He was not yet 3 years old. She was criminally prosecuted and pleaded guilty to disorderly conduct. She said she had been asleep in the house at the time.

At one point, CYFD ordered in-home services to help Rubino find ways to protect her children from Lerma. The in-home services worker, before closing the case in May 2012, concluded that the family was “conditionally safe” because Lerma wasn’t in the home anymore.

Lerma, according to the lawsuit, had been diagnosed with bipolar disorder in adolescence. He grew up in Carlsbad amid CYFD investigations of alleged abuse and neglect of him by his own parents. CYFD took custody of him, sending Lerma to multiple shelters, youth homes and residential placements “to address his mental and behavioral health concerns, including management of psychotropic medication.

“Juan Lerma also had a significant history of juvenile delinquency as a result of drug use and perpetrating burglary, physical violence and criminal sexual contact,” the lawsuit contends.

Juan Lerma never went back to live with his parents and aged out of the CYFD system when he turned 18.

According to criminal records, his mother alerted police that her son killed Samantha after she went to his house Aug. 1. 2020. Police found M.L. unharmed, but discovered the body of 8-year-old Samantha inside a black garbage bag in a trash can.

As her body was pulled from the garbage, an officer at the scene remarked how pretty Samantha was, even in death, according to court records citing a police lapel camera video. “Let’s do her justice,” he added.

Sam

The girl nicknamed “Sam” “enjoyed coloring, reading books from the library and writing stories as she had a vivid imagination. She loved her pets and playing with her cousins,” according to her online obituary.

She was 4 years old when CYFD received a report in 2016 that Lerma had physically abused her by spanking her.

Jennifer Rubino had sent Samantha and her brother to stay temporarily with Lerma in Carlsbad while she had surgery. When the children came home, Samantha had dark bruising up her back and on her buttocks, the lawsuit stated.

CYFD concluded there was a “lack of credible evidence” to substantiate the report of suspected child abuse by Lerma. That, despite the brother and sister having both told the CYFD about the abuse. There were also visible bruises and injury to Samantha.

CYFD supervisor Hobbs had personal involvement in finding the abuse allegation “unsubstantiated,” the lawsuit contends. She claimed that to prove the abuse, CYFD needed “clear and convincing evidence,” the lawsuit alleges. That was contrary to CYFD policy and procedure, which required the lower evidentiary standard of “credible evidence.”

The lawsuit also alleges the investigation was insufficient because no one conducted a required home visit at Lerma’s house, and there was no evaluation of the children’s safety with respect to Lerma. The focus was on Rubino.

A world ‘so cruel’

In April 2020, CYFD took charge of the children’s placement after Carlsbad police responded to the death of Jennifer Rubino, who died of natural causes.

Bustos was the on-call investigator and Hobbs, his on-call supervisor at the time.

The lawsuit alleges Bustos met with the children, Lerma and his mother, and the maternal grandparents from Texas for about two hours. He then gave Lerma custody pending a fuller investigation that was supposed to take up to 45 days.

But Bustos didn’t know the whole story, the lawsuit alleges.

“Hobbs withheld information from...Bustos regarding Juan Lerma’s dangerous propensities and his history of child abuse,” the lawsuit stated.

Hobbs also took the unusual step of handling the follow-up investigation herself without informing her supervisor, the CYFD county office manager, the lawsuit states. So Hobbs had no supervisor to oversee her ultimate decision about where the children would live.

As the investigator, Hobbs was supposed to assess the safety of the children with Lerma. But she never did so. Nor did she conduct a required home visit of Lerma’s home, the lawsuit alleges.

“Defendant Vickie Hobbs never interviewed Samantha and M.L. during the course of her investigation, contrary to CYFD policy and procedure. She never discussed the case with a supervisor or gave the case a required level of scrutiny because of the family’s past history with CYFD.” CYFD officials also assured the maternal grandparents and the Carlsbad Police Department that the children were safe with Lerma, the lawsuit states.

Lerma, 35, is appealing his conviction to the state Supreme Court. He denied killing Samantha at his sentencing hearing last December, according to court records.

“God and my daughter know that I did not do this. I know I have to ask for forgiveness for what I did,” he told the judge.

State District Judge Jane Shuler-Gray replied that she had spent 17 years on the bench and “this is one of the most horrendous crimes I have ever seen.”

“This case got to everyone,” the judge said at the hearing, noting that people in the courtroom were crying at times during the trial.

A life sentence without parole “is not enough, not even close,” court records quote her as saying. “This child was tortured for hours.”

Samantha’s tragic death affected people she never knew.

“May you rest in the arms of Jesus,” wrote one woman on her online obituary page. “So sorry this world was so cruel.”