The New Mexico Department of Justice on Tuesday took legal action against the state Children, Youth and Families Department for leaving a 15-year-old boy at the U.S.-Mexico border and directing him to cross alone to reunite with his estranged mother.
The Justice Department filed a lawsuit accusing CYFD of violating the boy’s constitutional rights and is seeking a restraining order, calling for the child welfare agency to bring the boy, a U.S. citizen, back to New Mexico.
Reports by state lawmakers and the New Mexico Office of the Child Advocate indicate the boy does not want to live with his mother, has a serious heart condition requiring medication and medical checkups, and could be a flight risk — he has been known to run away from foster homes and other living arrangements in which he felt unsafe.
The boy, who reportedly was left at the border by CYFD earlier this month, has not been publicly identified for privacy reasons.
“The State of New Mexico cannot claim to protect children while abandoning one of its own at an international border,” Attorney General Raúl Torrez said in a statement Tuesday. “This case is about more than one child. It is about whether the agency entrusted with protecting our most vulnerable children is following the law, honoring constitutional rights, and putting the safety of children above bureaucratic expediency.”
CYFD has argued it acted in the boy’s best interest after finding his mother’s home to be a safe environment for him, and said it did not have jurisdiction to cross the U.S.-Mexico border with him.
The agency said Tuesday it was reviewing the complaint and petition for a restraining order, and would respond to both legal actions in court.
“The most important thing is that the child is safe and living with his mother, who CYFD has been in frequent contact with as recently as yesterday by phone and via messages sent to her today,” spokesperson Jake Thompson said in a statement. “The department also has been in close communication throughout with the child’s godparents and the Mexican consulate, which has worked with Mexico’s Integrated Family Development department, assessing the child’s welfare, ensuring his safety, and addressing his needs.”
Michael Coleman, the chief spokesperson for Gov. Michelle Lujan Grisham, said in a statement Tuesday her office has been in regular contact with all state agencies involved in the case, and noted the lawsuit was “not surprising even though the Attorney General’s Office was aware of the child’s planned reunification before it occurred and did not intervene at the time.”
Judges determine whether a parent’s custody of their child should be limited or taken away, he said, not Lujan Grisham or her administration.
Coleman said multiple people — including authorities in New Mexico and Texas, and a state judge, each concluded the boy should be with his mother.
When a parent is clearly incapable of keeping a child safe, or has seriously harmed a kid, CYFD’s job is to step in and prevent harm, and present evidence to a judge, Coleman said, adding this case does not present that kind of clarity.
“The Attorney General’s office is now asking for the child to be returned to New Mexico. The filing does not state where the child will live or who will take care of him if that happens,” he said in the statement. “Continued back-and-forth over jurisdiction for a child who has already been through a great deal will inflict unnecessary trauma. In the meantime, CYFD will continue working with Mexican authorities to check on the well-being of this child and his family.”
Lawsuit allegations
The new lawsuit, filed in New Mexico’s First Judicial District Court in Santa Fe, is the second civil complaint the Justice Department has filed this year against CYFD. The first alleged CYFD had obstructed a yearlong investigation into systemic issues and accused the child welfare agency of abusing privacy laws to skirt accountability.
The complaint filed Tuesday accuses CYFD of abusing the 15-year-old boy’s constitutional rights by:
- Denying his right to due process.
- Inadequately investigating his circumstances.
- Releasing him without making sure he would continue to receive medical care or be placed in a safe living environment.
- Failing to coordinate an escort to cross the border with him.
- Abandoning him when he returned.
- Obstructing investigations into the situation.
The Department of Justice also asks a judge to find CYFD violates children’s rights through its methods of reuniting kids with parents who are not New Mexico residents, and that its safety assessments of homes are legally insufficient.
It also calls for a judge to bar CYFD from obstructing the efforts of the Office of the Child Advocate, which investigated the border crossing, and to require the agency to develop policies to prevent similar situations.
The request for a restraining order calls for CYFD to return the boy to New Mexico, conduct an adequate safety assessment of any home where it plans to place him, and abide by his due process rights. It also calls for CYFD to be barred from taking the boy — or any other child — out of the country without a court order.
“We are not going to stand idly by when CYFD makes decisions that are in their best interest, but not in the best interest of children,” Department of Justice Special Counsel Sean Sullivan told lawmakers during a Legislative Finance Committee meeting Friday.
‘Informal guardianship’
The 15-year-old’s godparents, who had cared for the boy and his siblings for the past nine years, sent him to live with relatives in Mexico in April, the lawsuit states.
However, the boy ran away and returned to New Mexico, where he was hospitalized at Mesilla Valley Hospital in Las Cruces. When the hospital was ready to discharge him June 1, his godmother tried to pick him up but was prohibited because she was not his legal guardian at the time, the lawsuit states. She presented hospital staff with a notarized letter from the boy’s mother permitting her to care for the boy, but they still refused to release him to her.
Thompson said in a statement last week the boy had been living in an “informal guardianship” with a couple who, in early June, petitioned to have the arrangement dismissed.
Healthcare workers ultimately filed an abuse and neglect report to CYFD because there was no one who could legally pick up the boy, the lawsuit states.
According to other reports, the boy was then placed in foster care, but CYFD later found his mother and initiated efforts to reunite the two. The lawsuit says the agency told the boy’s foster parents of its plans to reunite him with his mother and abruptly asked a judge to dismiss the abuse and neglect proceedings.
No one from CYFD had spoken with the boy about his relationship with his mother, “whether he felt safe with her, or if he wished to permanently leave the United States” before making the plan to send him to Mexico, lawsuit states.
A judge granted CYFD’s request, reports indicate.
The border crossing
The lawsuit alleges a CYFD employee then drove the boy across state lines to El Paso the night of July 6 and told the boy to take his things and walk across a bridge to Ciudad Juárez, where his mother would be waiting for him, though he had not had contact with her for hours before the arranged meeting.
The boy only had a few more heart pills with him, the lawsuit states, alleging CYFD officials knew this.
Thompson, however, said last week CYFD had confirmed the boy’s mother was at the meeting site and said an employee had spoken with her over the phone.
The boy started to cross the bridge, but then returned to the U.S., crossing several lanes of traffic, the lawsuit states. It alleges CYFD then called Border Patrol and asked its agents to keep him from reentering the country, but they declined.
Federal agents asked CYFD to bring the boy back to New Mexico, but the lawsuit alleges employees from the state agency “yelled at the child for crossing back into the United States” and refused the Border Patrol’s request, saying the boy was now “Texas’ problem.”
Border Patrol took the boy to a youth homeless shelter, where he stayed for days. The lawsuit alleges CYFD refused to pick him up from the shelter, arguing it “lacked authority or responsibility to cross state lines to retrieve him.” An employee eventually brought medication for the child but left before having any significant discussions with him or Texas’ child welfare agency, the complaint notes.
Thompson said the boy “declined further engagement with CYFD.”
Texas officials eventually were forced to take the boy to his estranged mother in Mexico on July 17, the lawsuit states.
Thompson, though, said CYFD had “coordinated with the Mexican Consulate, the Texas Department of Family and Protective Services and the Border Patrol to escort the boy over the bridge to unite with his mother.”
The boy currently has “no plans in place for school, therapy, or medication in Mexico,” the lawsuit states.
Within hours of being reunited with his mother, he ran away and tried to cross back into the U.S. again, it adds. However, Mexican authorities intercepted him and forced him to return.
Widespread criticism
Lawmakers and child advocates have criticized CYFD for reuniting the boy with his mother despite previous allegations of abuse or neglect.
Thompson said CYFD had investigated the woman 14 times from 2017 to 2021. Most of those allegations involved other children, though one report in 2019 resulted in a substantiated allegation of abuse or neglect of the 15-year-old.
Critics have questioned the agency’s safety checks of the mother, with a report from the Office of the Child Advocate noting she had not cared for the boy in roughly nine years and that she had past drug-related criminal charges. Thompson said CYFD conducted “two virtual home visits with her, and determined her to be safe and appropriate for placement.”
“I’m not exactly sure how you do a Zoom home visit of someone who you’re concerned has had prior drug issues,” Sullivan, the Justice Department attorney, told state lawmakers last week. “I don’t know how that works, but that’s what was done.”
Lawmakers, some of whom attempted to intervene and stop CYFD from reuniting the boy with his mother, have blasted the agency for its decision-making in the past week.
“He must have been terrified,” Rep. Eleanor Chávez, D-Albuquerque, said during the legislative hearing Friday. “I just feel horrible for this little boy.”
Democratic gubernatorial nominee Deb Haaland also deplored the situation. If elected, she said, she would make a number of reforms to CYFD, including improvements to its culture by appointing an experienced Cabinet secretary to serve while the agency transitions to the governance of an independent commission.
Haaland also said she would work to empower and properly fund the Office of the Child Advocate.
“The decision to send a child across the border alone is unacceptable. My heart breaks every time a child is harmed because of poor policy,” Haaland said in a statement. “Kids need to be kept safe and right now CYFD fails to meet that responsibility.”
