DENVER (CN) — The estate of a child who was kicked to death by his mother told the 10th Circuit on Tuesday that the New Mexico Children, Youth and Families Department had many chances to remove the child from the unsafe home before he was killed.
Omaree Varela died when he was 9. Attorneys for the state asked the 10th Circuit panel to affirm the ruling that its social workers had qualified immunity for Omaree’s death.
Omaree’s estate said the social workers committed an obvious violation of the child’s constitutional rights.
Omaree was beaten to death by his mother, Synthia Varela-Casaus, two days after Christmas in 2013, while his stepfather took heroin in the bathroom.
Both parents had done time in jail for drug charges, and the Children, Youth and Families Department frequently investigated them on abuse allegations throughout Omaree’s childhood.
Omaree was found lying at the foot of a bed in the home, with cigarette burns and bite marks on his skin. Varela-Casaus pleaded guilty to second-degree murder and child abuse, and has been sentenced to 40 years in prison.
Gabrielle Valdez, Omaree’s guardian ad litem, sued the state and two social workers in 2015, citing multiple investigations that had exposed troubling drug abuse and child neglect upon which the department had failed to act.
Seeking reversal on Tuesday, Andrew Schultz told the court: “We have two state social workers who clearly violated the New Mexico Children’s Code. “These decisions resulted in the death of one child, and the serious injury of another. ... The children had been placed with two adults, both of which had served jail time, and neither of which had seen [Omaree] in a year and a half.”
Varela-Casaus had recently given birth to a third child, who had tested positive for cocaine, said Schultz, who is with Rodey, Dickason, Sloan, Akin and Robb in Albuquerque
“The abuse was so bad that the University of New Mexico investigation found that the children were at serious risk of abuse...yet [the state] did nothing,” Schultz concluded.
When the state did act in 2009, the estate claims, defendant caseworker Joe Roybal failed to follow procedure.
Roybal wrote a memorandum that placed Omaree and his sister in the care of a family friend who already looked after them, but the estate says the memo violated the New Mexico Children’s Code because it asserted the government’s control over custody of the children despite the biological mother’s desire to reunite with them.
Because this violated the department’s procedures, when Omaree’s mother demanded the return of Omaree and his sister, the department helped her do so, and Omaree and his sister lived with her in New Mexico until his death.
In May 2016, U.S. District James Browning found for the state, saying Roybal and his peer Bennie Placencio did not “violate clearly established law,” and that their biggest mistake had been failing to follow formal custody procedures, nothing more.
“With respect to both Roybal and Placencio, a social worker would not have known that functionally transferring a child without following the Children’s Code’s formal, legal procedures would violate those children’s constitutional rights to access the courts,” the May 12, 2016 ruling states.
“The law was not clearly established, which entitles Roybal and Placencio to qualified immunity.”
On Tuesday, Patricia Williams with Wiggins, Williams and Wiggins in Albuquerque defended Judge Browning’s “well-reasoned, thorough opinion.”
“One of the linchpins of the New Mexico Children’s Code is the reunification families,” Williams told the panel.
“If a mother chose a babysitter and the babysitter takes the children to Arizona, she can file kidnapping charges. They were always in the mother’s legal custody.”
Williams acknowledged it was a difficult case, calling the issue a “new legal animal.” She said it was unfair to blame the social workers, who could not have foreseen the tragic outcome.
“This case examines the role of the public servant,” Williams said. “The state is not required to protect children from private violence.”
The panel consisted of 10th Circuit Judges Nancy Moritz and Scott Matheson and Senior Judge Monroe McKay.
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