NM: Andrew Valdez Sues Sheriff for Failing to Protect Son from Abusive Mother

February 3rd, 2013 by Robert Franklin, Esq.
Just like the case of Seth Ireland in California, a civil lawsuit has been filed by a father in New Mexico against those who knew his son was in danger in his mother’s house, but did nothing to protect the boy.  Leland Valdez died at age three due to multiple beatings over a long period of time administered by his mother Tabetha Van Holtz and/or her boyfriend Steven Gallegos.  I first wrote about the case here.

When Leland came home one day in 2010 from a stay at his mother’s house with bruises on his stomach, his father, Andrew Valdez asked him what had happened.  The little boy said “Mommy hit me.”  He also told Valdez’s sister that Gallegos had hit him.  Needless to say, Valdez reported the matter to the police and to the Children, Youth and Families Department who did nothing to protect the child.  In one of the strangest twists in a very twisted story, CYFD personnel actually told Valdez that they couldn’t do anything to protect Leland because they couldn’t ascertain who – Van Holtz or Gallegos – was harming the little boy.

Needless to say, that’s utter nonsense.  They knew very well that when someone in a household is beating a child, that child can be removed from the household and placed in a safer environment.  But they didn’t.

No wait, I’m wrong.  CYFD did actually intervene.  In what’s surely the sickest turn of events in the whole awful case, when Andrew Valdez was at the hospital watching his son die from the blunt force trauma he endured in his mother’s “care,” CYFD informed him that they were transferring custody to him.  The child was unconscious at the time and died shortly thereafter. Before that, they’d lifted nary a finger to protect the boy.  Words fail.

Into the bargain, police took the opportunity not only to do nothing to protect the child, like arresting Van Holtz and/or Gallegos, but just to make sure no one got the idea that they cared, they didn’t even report the matter to the district attorney’s office.  That’s truly dogged lassitude.  Indeed, their “investigative report” only made it to prosecutors six months after Leland died.

And it’s that very see-nothing, hear-nothing, do-nothing attitude that’s gotten the police sued by Andrew Valdez.  Read about it here (Santa Fe New Mexican, 1/28/13).

The father of Leland Valdez, a 3-year-old who police say was beaten to death by his mother and her live-in boyfriend in January 2011, says the sheriff and a deputy caused the boy’s death by ignoring pleas to take his reports of child abuse seriously.

In a complaint for wrongful death, Andrew Valdez claims that the child’s death was a direct result of the failure of Sheriff Robert Garcia and investigating Officer Donald Romero to investigate “crimes that occurred months and years before Leland Valdez’s death.”

He charges that several reports of abuse in August 2010 against the boy’s mother, Tabetha Van Holtz, 23, and her boyfriend, Steven Gallegos, 21, were never forwarded to the District Attorney’s Office for prosecution.

Garcia, Romero and the Board of County Commissioners are named as defendants in the suit.

Now, you’re probably wondering why Valdez and his lawyers haven’t sued CYFD or any of its personnel.  After all, their complete indifference to a little boy’s suffering led to his death.  They could have acted, should have acted, but did nothing to protect him, and of course that’s their job.  But CYFD and its personnel are legally immune from civil liability in the performance of that job.  That immunity isn’t absolute, but it turns out that, because they were so negligent in handling Leland’s case, they can’t be sued.  If that sounds screwy to you, you’re not alone.

Although the complaint says that CYFD was aware of the previous reports of child abuse, none of its employees are named in the suit as defendants. Attorney David Thompson said Monday that because Leland Valdez was never in CYFD custody, the department is “likely” immune to civil action because of state statutes.

That’s right.  In New Mexico, if you’re a caseworker, supervisor, etc. with CYFD, the agency that’s supposed to protect vulnerable children from abuse, the law tells you to do as little as possible.  If you take the child into state custody, then you can be sued.  Leave the child in an abusive environment and you can’t, even if the child dies.  I wish I were making that up, but I’m not.

Meanwhile, it’s been two years since Leland succumbed to his beatings and Tabetha Van Holtz and Steven Gallegos walk free every day save for electronic monitoring devices they’re required to wear.  Yes, they’re charged with criminal wrongdoing in Leland’s death, but the state shows no interest in bringing them to trial.

Van Holtz was released from Santa Fe County jail in May 2011 by retired state District Judge Michael Vigil in order to give birth to another child, on the condition that she not violate any of her conditions of release.

Gallegos was also released from jail that May, but violated terms of his probation in August 2011 and was re-arrested. He was then released again by Vigil in February 2012. Van Holtz and Gallegos remain on electronic monitoring pending their trial — which does not appear to be happening anytime soon.

Since Vigil’s retirement, the criminal case against Gallegos and Van Holtz has passed through six other judges’ courts.

Judge Mary Marlowe-Sommer, who took over Vigil’s criminal case docket, recused herself from the case in October 2012. The case was transferred to Judge Sheri Raphaelson, who was excused by Gallegos, then transferred to Judge Sarah Singleton, who also recused herself from the case. Judge Raymond Ortiz was then given the case only to be excused by Van Holtz.

The case was then forwarded to Judge Glenn Ellington, who awarded Van Holtz custody of Leland Valdez at a December 2010 hearing — a month before his death. Ellington also recused himself, passing the case along to former Chief District Judge Barbara Vigil — who has since been elected to the state Supreme Court.

According to online court records, the criminal case has not yet been set for trial.

Ho hum.  Another child beaten to death by his mother and her boyfriend.  Everyone charged with protecting him knew he was in danger and not a single one of them lifted a finger to help.  Another child welfare agency’s refusal to take a child from his brutally abusive mother and give him to his father resulted in the boy’s death.  And now the criminal justice system is doing its part to show just how little a child’s life is worth.  Bring the killers to trial?  Make them pay for their brutal crime?  Demonstrate to others that such behavior won’t be tolerated?  Nah.  Just pay out some money once the awful deed has been done and move along to the next case.  Maybe it’ll be another father trying to get custody of his child.  Best to deny him “in the best interests of the child.”