Ruling could spur transparency at CYFD
Lawyer says he wanted to raise concerns but feared he could be prosecuted
Adoption attorney Harold Atencio says he has encountered widespread misconduct at the state’s child welfare agency during his three decades in the field, from blatant policy violations to destruction of public records.
He has wanted to blow the whistle on what he calls rampant wrongdoing at the New Mexico Children, Youth and Families Department, but doing so would have violated a state law and put him at risk of criminal prosecution.
However, the recent result of a U.S. District Court lawsuit he filed earlier this year might now allow him and others to speak publicly about the troubled agency, he said.
Atencio’s complaint, filed in April against the state attorney general, 2nd Judicial District attorney and Albuquerque city attorney, sought to change a provision in the New Mexico Children’s Code that makes it a petty misdemeanor — punishable by up to six months of incarceration and a $500 fine — to release information tied to CYFD abuse or neglect cases.
U.S. Magistrate Jennifer Rozzoni issued a judgment in October stating an agreement had been reached between Atencio and District Attorney Sam Bregman stipulating the prosecutor is prohibited from enforcing the law.
Atencio’s suit faced no pushback from the defendants.
Bregman said in affidavit that, to his knowledge, his office has never prosecuted anyone for violating the provision.
The Attorney General’s Office filed a brief in the case declaring the provision unconstitutional, based on a recent appeals court opinion in a Colorado case known as Peck v. McCann, which challenged a similar law in that state.
Lauren Rodriguez, a spokeswoman for the Attorney General’s Office, wrote in an email, “The judgment is consistent with the analysis of Peck v. McCann in our filing in the case. The Peck opinion requires transparency for non-identifying information.”
Atencio said he brought his lawsuit after the 10th Circuit Court of Appeals in Denver delivered a 2022 opinion in the Peck suit striking down a Colorado statute that attached criminal penalties to disclosure of information about child abuse cases.
The ruling in New Mexico will not directly affect the operations of the
Children, Youth and Families Department.
Agency spokeswoman Jessica Preston wrote in an email the recent ruling “does not impact CYFD, nor do they have authority to prosecute.”
The department has been supportive of “less restrictive and more narrowly tailored language” in the confidentiality provision, Preston wrote, citing the agency’s efforts to introduce amended language in this year’s legislative session.
CYFD has faced criticism in recent years and calls for reform due to reports of high rates of child maltreatment,
high-profile child deaths and a staffing shortage that has led to case overloads and low morale among workers.
Gov. Michelle Lujan Grisham called the agency “dysfunctional” earlier this year and announced efforts to boost recruitment and training of workers.
More recently, a report from an independent monitor released in mid-September said the agency had devolved into a “state of chaos” due to the staffing shortage.
Preston wrote the department’s vacancy rate has since decreased to 27.3%.
The agency has streamlined its hiring processes and boosted recruitment efforts, and “has negotiated with the Union to reduce the time for posting a position from a minimum of 14 days to 3 days, which will enable our agency to fill key positions expeditiously,” she wrote.
Several lawsuits against the agency have alleged failures and negligence causing harm to children CYFD is tasked with protecting.
At least two civil complaints in recent months blamed the department for the deaths of infants.
The most recent case, filed Nov. 10 in the First Judicial District Court, alleges multiple failures at CYFD led to the death in 2021 of Waylon Padilla, 1 month old.
Employees ignored serious warnings from police and a clear record of past abuse when they released the newborn into an unsafe household, the lawsuit alleges.
The baby’s mother had sought help from police, reporting she was experiencing persistent thoughts about harming her children, particularly her infant son, according to the lawsuit. An evaluation at an outpatient behavioral health hospital determined the woman, Kiria Milton, was at an “imminent” risk of homicide and recommended inpatient psychiatric treatment, the suit states.
Instead, Milton was discharged within days. She called 911 four days later to report Waylon’s death.
Milton was charged with intentional abuse of a child resulting in death.
Preston declined to comment on the pending litigation.
Atencio said he believes the federal court judgment in his case could spark a level of transparency at CYFD that might finally spurs the changes lawmakers and others wish to see at the department.
The threat of criminal charges for speaking about abuse cases created a “chilling effect” for people who might witness issues during confidential proceedings, he said.
“We’re just scratching the surface,” Atencio said. “We have finally opened the door enough to let some light in to everything that’s going on. I’m hoping that a lot of people out there — not just attorneys, but the parties themselves — are made aware that this confidentiality statute is no longer enforceable.”