Valdez v. Roybal

• Decision Date: 12 May 2016
• Docket Number: No. CIV 15-1039 JB/SCY,CIV 15-1039 JB/SCY
• Citation: 186 F.Supp.3d 1197
• Parties: Gabrielle Valdez, as Personal Representative of the Wrongful Death Estate of Omaree Varela, Deceased, and Jill Marron, as Guardian ad litem for N.V., a minor, Plaintiffs, v. Joe Roybal, in his personal capacity acting under color of state law; Bennie Placencio, in his personal capacity acting under color of state law; John Does 1-5, in their personal capacity acting under color of state law; and The New Mexico Children, Youth and Families Department, Defendants.
• Court: U.S. District Court — District of New Mexico

186 F.Supp.3d 1197

Gabrielle Valdez, as Personal Representative of the Wrongful Death Estate of Omaree Varela, Deceased, and Jill Marron, as Guardian ad litem for N.V., a minor, Plaintiffs,

v.Joe Roybal, in his personal capacity acting under color of state law; Bennie Placencio, in his personal capacity acting under color of state law; John Does 1-5, in their personal capacity acting under color of state law; and The New Mexico Children, Youth and Families Department, Defendants.

No. CIV 15-1039 JB/SCY

United States District Court, D. New Mexico.

Signed May 12, 2016

Counsel: F. Michael Hart, Kelly A. Stout Sanchez, Martinez, Hart & Thompson, P.C., Albuquerque, New Mexico—and—Andrew G. Schultz, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, New Mexico Attorneys for Plaintiff Gabrielle Valdez

Rachel E. Higgins, Albuquerque, New Mexico, Attorney for Plaintiff Jill Marron

Patricia Williams, Wiggins, Williams & Wiggins, Albuquerque, New Mexico, Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants Bennie Placencio and the New Mexico Children, Youth, and Families Department's Motion to Dismiss and Memorandum in Support Thereof, filed December 15, 2015 (Doc. 10) ("CYFD MTD"); and (ii) Defendant Joe Roybal's Motion to Dismiss and Memorandum in Support Thereof, filed January 12, 2016 (Doc. 14)("Roybal MTD"). The Court held a hearing on May 5, 2016. The primary issues are: (i) whether the New Mexico Children, Youth, and Families Department's 2009 memorandum ("Memo"), which recommended that Synthia Varela's children, Omaree Varela and his sister N.V., remain in family-friend Essie Sotelo's care, created a special relationship under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America; (ii) whether Defendants Joe Roybal and Bennie Placencio created or enhanced a danger to O. Varela and N.V. when they transferred the children without following the New Mexico Children's Code¹ procedures; (iii) whether Roybal and Placencio abdicated their professional judgment in violation of the children's constitutional rights; (iv) whether Roybal and Placencio violated the children's rights to access the courts; (v) whether the Defendants are entitled to qualified immunity; and (vi) whether the Court should exercise supplemental jurisdiction over the Plaintiffs' claim that the New Mexico Children, Youth, and Families Department ("CYFD") violated the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41–4–1 to –30 ("NMTCA"). The Court grants the motions in part and denies them in part, because the Defendants are entitled to qualified immunity. The Court concludes that: (i) the Complaint plausibly alleges that the Defendants had a special, custodial relationship with the children; (ii) the Complaint plausibly alleges that Roybal and Placencio created or enhanced a danger to the children, but it does not state a danger-creation claim because Roybal's and Placencio's actions do not shock the Court's conscience; (iii) the Complaint plausibly states a claim that the Defendants abdicated their professional responsibility and denied O. Varela and N.V. their right to be free from violence under the Fourteenth Amendment; (iv) the Complaint plausibly states a claim that the Defendants denied the children meaningful access to the courts in violation of the First and Fourteenth Amendments; (v) the Defendants are entitled to qualified immunity on all of the federal claims; and (vi) the Court will not exercise supplemental jurisdiction over the state-law claim.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Civil Rights Violations and Violations of the New Mexico Tort Claims Act, filed November 13, 2015 (Doc. 1-1)("Complaint"). It accepts as true all non-conclusory factual statements. The Court will describe O. Varela's early life, the New Mexico Children, Youth, and Families Department's ("CYFD") investigations, O. Varela's move to Arizona and then back to New Mexico, and finally, his death.

1. O. Varela's Early Life

S. Varela used crack cocaine during her pregnancy and exposed O. Varela to crack cocaine in utero. See Complaint ¶¶ 10-11, at 3-4. O. Varela "was born prematurely in February 2004 with significant medical challenges." Complaint ¶ 10, at 3. S. Varela gave birth to O. Varela while she was in prison for drug trafficking. See Complaint ¶ 11, at 4. O. Varela's biological father, Christopher Clewis, was also incarcerated when O. Varela was born. See Complaint ¶ 11, at 4. Shortly after O. Varela's birth, S. Varela gave power of attorney for O. Varela to two female relatives while she finished her prison sentence. See Complaint ¶ 12, at 4.

Within one month, "there were allegations of physical neglect (inadequate food) and medical neglect (no weight gain since birth) against these care givers." Complaint ¶ 12, at 4. The CYFD is a department of the New Mexico state government that provides "an array of prevention, intervention, and rehabilitative services to New Mexico children and their families." Complaint ¶ 8, at 3. The New Mexico Children's Code requires that the CYFD's Protective Services Division "receive and investigate reports of children in need of protection from abuse and/or neglect by their parents, guardians or custodians, and to take action to protect those children whose safety cannot be assured in their home." Complaint ¶ 8, at 3. The CYFD substantiated the allegations, but later dismissed the case after placing O. Varela in the hospital for weight gain and referring the two female relatives "for parent building skills." Complaint ¶ 12, at 4. Although the State never took O. Varela into custody during this period, the CYFD placed him with a foster parent for approximately thirty days, then returned him to the same female relatives. See Complaint ¶ 12, at 4. In November 2004, S. Varela married Steve Casaus. See Complaint ¶ 13, at 4. Casaus, who had a criminal record for drug possession, also had numerous charges of "drug trafficking, assault, domestic violence, auto theft, and multiple parole violations." Complaint ¶13, at 4. In June 2006, S. Varela signed another power of attorney for O. Varela to a family friend: Sotelo. See Complaint ¶ 14, at 4-5.

2. CYFD's Investigations for Physical Abuse and Neglect.

Defendant Joe Roybal worked as a social worker for the CYFD. See Complaint ¶ 4, at 2. As a CYFD social worker, Roybal was responsible for investigating allegations of physical abuse and physical neglect that O. Varela and his siblings, minors N.V. and E.V.,² may have suffered. See Complaint ¶ 4, at 2. He was also responsible, in whole or in part, for preparing the Memo. See Complaint ¶ 4, at 2. This Memo: (i) declared that the CYFD was investigating S. Varela; (ii) recommended that O. Varela and N.V. remain with Sotelo, S. Varela's family friend; and (iii) stated that S. Varela should not take the children into her care. See Complaint ¶ 4, at 2.

Defendant Bennie Placencio also worked as a CYFD social worker. See Complaint ¶ 5, at 2. Like Roybal, Placencio was also responsible for investigating whether O. Varela and his siblings were suffering from physical abuse and neglect. See Complaint ¶ 5, at 2. Additionally, Placencio was responsible, in whole or in part, "for threatening Essie Sotelo with criminal prosecution for interstate kidnapping if she did not bring Omaree and his sister to New Mexico and for arranging their placement with Steve Casaus and Synthia Varela." Complaint ¶ 5, at 2. Defendants John Does 1-5 were also CYFD social workers. See Complaint ¶ 6, at 2. They were responsible, in whole or in part, for investigating whether O. Varela and his sibling were suffering from physical abuse and neglect. See Complaint ¶ 6, at 2. They were also responsible for "threatening Essie Sotelo with criminal prosecution for interstate kidnapping if she did not bring Omaree and his sister to New Mexico, for arranging their placement with Steve Casaus and Synthia Varela and for monitoring that placement." Complaint ¶ 6, at 2.

In the Complaint, the Plaintiffs describe the CYFD's investigations from 2006 through the summer of 2009:

A. In October 2006, CYFD investigated allegations of physical neglect against Synthia Varela regarding her care of Omaree. Although CYFD found the allegations to be unsubstantiated, as a result of this investigation, Synthia Varela signed yet another power of attorney for Omaree, this one to Omaree's maternal aunt and uncle.

B. CYFD investigated another allegation of physical neglect against Synthia Varela in February 2008 based on her continued drug use and lack of supervision of Omaree. CYFD closed this file when the social worker could not locate the family.

C. In November 2008, Synthia Varela had a daughter (N.V.) with a different father. N.V. is a minor child. To protect her privacy, she is designated in this Complaint by her initials. Soon after that, Steve Casaus was incarcerated with the New Mexico Department of Corrections for 1,397 days for repeated violations of a probation agreement.

D. PB&J Family Services³ (an organization that assists at-risk children) noted in January 2009 that "Synthia feels overwhelmed with Omaree when he will not listen to her."

E. In April 2009, an Albuquerque Public Schools Independent Education Program ("IEP") evaluation found that Omaree had "significant delays." The report found that he had made no progress on his goals since the last IEP report because of his frequent absences from school (he attended class only 28 of 69 days).

F. In June 2009, CYFD again investigated allegations of physical neglect and physical abuse of Omaree and allegations of physical neglect with respect to N.V. against Synthia Varela, all in relation to Synthia's continued drug use. Again, CYFD found the allegations to be unsubstantiated. Defendant Joe Roybal performed this investigation. He determined that it was sufficient that the family

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