‘No truly acceptable choice’ left for girl

Hobbs couple and CYFD in legal battle as judge tries to decide if 10-year-old goes back to parents she doesn’t remember or stays with foster family

The girl is about 10 now. She doesn’t remember her parents, but they have not forgotten her.

In the past eight years, they’ve spent tens of thousands of dollars on lawyers and therapists and hundreds of hours in court and counseling trying to get her back from state custody.

The girl was taken from her parents after officials learned their teen son had sexually assaulted their 6-year-old son, and they hadn’t done enough to stop it or remedy the trauma. The teen was convicted, and the younger son is now in treatment for his own sexual deviancy.

The remaining battle now revolves around the girl, who has a foster family that wants to adopt her, therapists say in court records. But her parents want her, too. Last summer, the Court of Appeals ruled she shouldn’t have been permanently taken away from her parents — at least not in the way the Lea County courts and state Children, Youth and Families Department did it.

A Lea County district judge is now tasked with figuring out which family arrangement is least harmful for the girl: return to the parents she doesn’t remember or stay with the adoptive family.

In the wings is a child protective system — several judges and

social workers — that the Court of Appeals says mismanaged the case so badly that “no truly acceptable choice” is left for the Lea County judge to make.

Meanwhile, the parents’ attorneys have filed a federal civil rights lawsuit against CYFD and Hobbs police, saying the agencies destroyed their family and should be held accountable.

CYFD Secretary Monique Jacobson said it is crucial that anyone looking at this case keep a focus on what was uncovered in 2010 when a Hobbs-area elementary school principal picked up a phone and called CYFD. Jacobson, like all CYFD employees, is prohibited from discussing case specifics, but in a recent interview she referred to details available in the Court of Appeals’ opinion.

Additional details are included in the federal lawsuit filed by the mother and father’s attorneys, Max Proctor and Jon Fredlund, both of Hobbs. And Hobbs police reports and court documents in the custody case provide even more details.

Put together, they tell the story, very simplified here:

In April 2010, the 6-yearold boy was acting out sexually at school. He told his principal that his teen brother had several times sexually assaulted him. He’d also watched porn with his brother. Later, he told authorities he’d also watched porn with his parents.

Social workers and police over the next week verified that the older brother had indeed raped his brother, the boy told his parents about it and they handled the situation within the family, moving the boys to different sleeping spaces in the house. The teen told police his mom “freaked out” on him and his dad “whacked” him a few times. He described home as “hectic” with him as caretaker while his parents worked long hours.

During the course of a medical examination, the younger boy began to masturbate and police reports say the mother at one point commented on the size of her son’s genitals.

The nurse told police the mom was smiling at the boy, which a judge later interpreted as her encouraging his inappropriate behavior — a detail the judge later used to justify terminating her rights.

The parents’ lawyers in documents and interviews say the mother made no such comments or encouraging glances and any odd behavior was out of nervousness or awkwardness in a stressful situation she wasn’t socially able to handle.

During this examination, the boy also said “we” had printed off pictures of his genitals on the home computer — launching an investigation into computers and printers at the home.

Officials ordered the parents to keep the teenager away from the children, but when authorities arrived at the home soon after to confiscate computers, the teen was there.

Police say the house was filthy and the girl was found sleeping on a pile of laundry. Family attorneys say the house wasn’t pristine, but it wasn’t dangerously dirty, either, and having a messy or dirty house isn’t illegal.

The two young children, and the family dog, were removed. The kids were put in foster care.

And the court ordeal began. Initially, the CYFD’s plan was for the parents to get some counseling, remove dangers and get their younger children back.

By all therapist accounts, the parents were diligent, though maybe a little slow to progress, with counseling and therapy.

The teen was charged and convicted of raping his brother. He stayed in state juvenile incarceration until he turned 21, so he was no longer in the home.

And the kids were set to be reunited with the parents after the investigation, launched by the boy’s statement about printing pictures, into the seized computers was completed.

Hobbs police sent the confiscated computers off to the New Mexico Regional Computer Forensics Laboratory in Albuquerque. There, the case agent was busy with several terrorism investigations and did not copy the contents of the Hobbs computers until a year after receiving them, according to police reports.

So in July 2011, about a year after the kids were first placed in foster care, Hobbs detectives finally received about 1,000 pornographic images taken off the family’s computer. Some of them, maybe about five, contained participants that police could not say certainly were over age 18.

Lawyers in the case who have since seen the photos described them to the Journal as homemade images of either teens or young women made to look like highschoolers. But the images are referred to in court as child pornography.

Though the official investigation into the age of the participants was inconclusive, the allegation of child pornography was enough for CYFD to reverse course on the family plan and change from reunification to termination.

CYFD then blocked all visits with the parents.

And that was the last time they saw their daughter. But they are still fighting to see her and to be in her life.

And at times since then, CYFD has given them hope that they would.

Nearly two years after changing the plan to parental termination, CYFD reversed course — about the same time that the daughter’s first foster family decided it didn’t want to adopt her — swapping back to reunification and determining the parents had done everything asked of them.

Also about this time, fall 2013, the parents learned that their youngest son, still in residential treatment in New Mexico, had been involved in a “sex club,” according to the federal lawsuit. At this time, CYFD moved him to a treatment center in Texas.

Meanwhile, the parents continued with near-weekly counseling.

And the court appointed a family reunification mediator to help them get visitation up and running with their daughter. This mediator, though, barely communicated with the parents, their therapists, CYFD social workers and the foster family, according to court records.

District Judge Raymond Romero, in his August 2015 ruling terminating parental rights, writes that the mediator “did nothing of any substance” and CYFD “did nothing to ensure that (the mediator) was complying with the” reunification plan, resulting in prolonged delays that contributed to the deterioration of the parent-child relationship.

CYFD spokesman Henry Varela says the mediator is not a CYFD employee or contractor and that courts, not CYFD, appoint monitors.

Nearly a year passed with no visitation, despite court filings from the parents’ lawyers seeking clear instructions on exactly what CYFD wanted from them in order to get their children back.

In the meantime, CYFD found another foster family to take the girl. And in December 2013, the department reversed course again, arguing the parental rights should be terminated.

A CYFD social worker testified that although the parents “completed their treatment program and had done anything and everything asked of them by the department for reunification,” it was in the child’s best interest to terminate their parental rights because the relationship had disintegrated over the years of separation.

CYFD officially argued that the parents’ “sexual issues have never been addressed” and they have basically abandoned their children because they haven’t seen them for years.

In August 2015, Judge Romero agreed with CYFD, saying the parents were “sexual predators” and abused and neglected the kids and abandoned them. He focused on the reports from social workers treating the younger son in which the boy discussed its being acceptable for children to have sex with adults and implicated his parents in teaching him that.

No charges have ever been filed against the parents. And according to court records, the two complied with CYFD’s plan, asking several times for clear instruction on what they needed to accomplish to get their children back.

Romero said CYFD used “complete negligence” in crafting that treatment plan, noting the department did not disclose the details of the son’s statements to the court.

CYFD “utterly failed to properly assess the causes and conditions that led to (parents’) abuse of Son.”

Despite his focus on the family’s behavior, Romero’s ultimate ruling regarded the status of the parent-child relationship, which CYFD argued had disintegrated. The ruling says the parents basically abandoned their daughter and their rights to her were terminated. He allowed them legal rights to their son but ordered the son to stay in state custody and treatment. The Court of Appeals, however, took issue with Romero’s ruling.

The court said in a June 2017 opinion that it was CYFD — not the parents — that drove the disintegration of the relationship through mismanagement of the case.

“We are deeply troubled by the fact that all visitation, including supervised visitation, with Daughter was revoked based on an allegation and withheld for years while CYFD attempted to substantiate that allegation,” Judge Jonathan Sutin wrote in the panel’s opinion, referencing the child pornography allegation.

“What is even more troubling is the fact that this separation allowed Daughter to lose all memory of Respondents after years of no contact. CYFD then used the same lack of contact as the primary basis for asserting a disintegration of the parent-child relationship in order to terminate Respondent’s parent rights.”

The court restored the parents’ rights to their daughter.

This is where CYFD Secretary Jacobson says it is important to remember the initial circumstances of the case and to separate it from how the case unfolded and how CYFD argued for termination of rights. She also says it is crucial to remember that CYFD doesn’t act in a vacuum and a judge must approve termination and reunification.

This case went through several judges and at least two CYFD attorneys.

“As we read the Court of Appeals ruling, we believe that the court did not necessarily rule against what we did but how it was done,” she said in a recent interview.

CYFD could have sought to terminate rights on the basis that the parents were still a threat to their kids, she said. That argument is one of three the department can use to justify terminating a parent’s rights.

But what would have happened had CYFD pursued that argument isn’t clear, and Jacobson said she couldn’t comment further.

“There were significant concerns regarding the situation in this home, the decision (to terminate) was not based on any one thing. ... The bulk of what you will find here (in the court opinion) is you find significant concerns about the home,” she said. And there are concerns for the future.

“Although we reverse” termination, “we recognize that in termination proceedings there is often a tension between ‘the physical, mental and emotional welfare and needs of the child’ and the understanding that ‘parental rights are amongst the most basic rights of our society and go to the very heart of our social structure,’” Sutin wrote.

“We are faced with the prospect of completely disrupting the life of a young child who has lived with a family with whom she has bonded and by whom she wishes to be adopted. However ... we are also sympathetic to the fact that, but for the erroneous termination of (parent’s) parental rights, they might not be in the position that they are now.”

Parties to the case hope to suggest hybrid approaches to custody, such as visitation for parents or shared custody, to keep from retraumatizing the girl, who will soon turn 11 and hasn’t seen her biological parents since she was 4.

The youngest son remains in the treatment facility in Texas, where he is not allowed visits by his family.

The oldest son is now living in Ohio, where he has married and started his own family. He did not return inquiries for comment.

The parents’ federal lawsuit is scheduled for hearing this month. Hobbs police said through their lawyer, Luis Robles in Albuquerque, that the department did not violate the parents’ civil rights and was following protocol and the needs of protecting their children.

Hearings on custody are being held, but they are not public.

That leaves the Lea County judge to figure out how to solve what the father’s attorney, Fredlund, said is the ultimate test of the notion that “you have a fundamental constitutional right to familial integrity versus the government’s interest in trying to protect children.”