CYFD agrees to pay $5.5 million settlement over 8-year-old girl's death

Feb. 24—Samantha Rubino clammed up and didn't say a word.

After the unexpected death of her mother in April 2020, the 7-year-old put her head down on her knees when asked whether she wanted to go live with Juan Lerma, a man believed to be her father whom she hadn't seen in years.

A few months later, Samantha never would speak again — her lifeless body discovered in a garbage bag in a trash can.

The case, which resulted in the state of New Mexico agreeing to pay a $5.5 million settlement last month, should send a resounding message to the state's troubled child welfare agency, which placed Samantha and her older brother in Lerma's care despite his history of child abuse and dangerous propensities, attorney Ben Davis said Friday.

"It tells them they must protect our children," he said, referring to the embattled state Children, Youth and Families Department. "They must protect the most vulnerable people in our society."

The settlement, the latest in a series of high-dollar payouts involving CYFD, comes amid ongoing turmoil at the agency, which was the subject of a blistering report last month that warned of "a clear and urgent safety risk for children" stemming from a backlog of more than 2,000 investigations of abuse and neglect.

Some of the pending investigations date to the first half of 2023, and others involve alleged child victims who have never been seen by the child welfare agency, according to the report, which called on the state to take "immediate action" in the face of crushing caseloads and overworked staff.

Cabinet Secretary Teresa Casados, who served as the governor's chief operating officer before she was tapped to lead CYFD after a national search, told lawmakers during her confirmation hearing the last week of January that CYFD, which has a 26.6% vacancy rate, was "heading out to those houses immediately — that's been a priority for us this week."

Complaining their patience with the child welfare agency was running thin, lawmakers considered a proposal to ask voters whether CYFD should be removed from the executive branch and placed under the oversight of an independent commission — an idea the Lujan Grisham administration opposed. Ultimately, the bill died in committee.

A tragic — and avoidable? — death

"Samantha Rubino's death was tragic," an unidentified CYFD spokesperson wrote Friday in an email about the child at the center of the $5.5 million settlement.

"Her brother and she deserved a happier, safer childhood — and not to be the victims of her father's gruesome actions," the spokesperson added. "This was a tragic incident, and the timely resolution of these lawsuits allows the family to move forward."

Although tragic, Samantha's death was also avoidable, Davis said.

"It's just an awful situation, and CYFD did not follow their own protocols, did not follow their own rules," he said.

Samantha, who was 8 at the time of her death, and her older brother, Mykul Lerma, then 9, were taken into CYFD custody in April 2020 when they were found wandering around an apartment complex in Clovis after the death of their mother, Jennifer Rubino, who was their sole guardian and caretaker, according to court documents.

Juan Lerma was living in Carlsbad, about 181 miles away, at the time of Jennifer Rubino's death.

The children's encounter with CYFD wasn't their first.

"At the time of the April 14, 2020 CYFD report, the family had more than two (2) prior investigations with CYFD," a federal lawsuit states.

In 2012, CYFD had received a referral for suspected abuse and neglect involving one of Jennifer Rubino's two other children, allegedly at the hands of Juan Lerma. At that point, it was the third report of suspected abuse and neglect for the Rubino family, the lawsuit states.

"During the course of the investigation, [CYFD employee] Vickie Hobbs learned that Juan Lerma was currently being prosecuted for child abuse and domestic violence after breaking Jennifer Rubino's arm for an incident that took place in 2010," the lawsuit states.

The following year, in 2013, CYFD received another referral for suspected abuse and neglect when Mykul was found walking down the street by himself. He was about 3 years old.

"As a result of this report, Jennifer Rubino was arrested and CYFD took [Mykul] and Samantha into legal custody," the lawsuit states. "At this time, Juan Lerma was incarcerated in Eddy County Detention Center."

Hobbs learned during the 2013 investigation that Lerma had not been involved in parenting either Mykul or Samantha, who he had only seen three days out of her life, and didn't know for certain if he was their biological father.

After Jennifer Rubino was released from jail, Hobbs and a CYFD investigator placed the children back with their mother and dismissed the abuse and neglect petition. Two days before her release, Jennifer Rubino executed a power of attorney directing another woman, identified in court documents as Laura White, to care for her children should anything happen to her.

"This power of attorney was provided to CYFD and was maintained in the CYFD file," the lawsuit states.

In 2016, CYFD received a report regarding suspected physical abuse of Samantha by Juan Lerma after Samantha returned from his home with "dark bruising on her buttocks and up her back."

During the course of that investigation, Mykul reported hearing Samantha being hit and crying. He "also reported that he got slapped by Juan Lerma and that he was scared to be with him."

The investigator on the case failed to visit Lerma's home, where the alleged abuse occurred, "in direct contravention to CYFD policy and procedure," the lawsuit states.

Hobbs was his direct supervisor "acquiesced in the violation of CYFD policy and procedure," according to the lawsuit.

Despite evidence of abuse and Lerma admitting to spanking Samantha, CYFD "concluded there was a 'lack of credible evidence' to support substantiating the report of suspected child abuse by Juan Lerma," the lawsuit states.

Hobbs closed the 2016 investigation as "unsubstantiated" that September, according to the lawsuit.

Placement options

Hobbs entered the children's lives again when their mother died and, as the investigations supervisor, assigned on-call worker Tony Bustos to respond. Hobbs assigned herself as the CYFD investigator in the case, which the lawsuit calls a "highly unusual" move "because that was outside of her usual role with CYFD as she was a supervisor."

After Bustos assured a Clovis police officer CYFD would ensure the children's safety, Bustos and Hobbs worked on a plan on where to place the children "because they didn't have anywhere to go at that point following the death of their mother and only caregiver," the lawsuit states.

Their placement options included Juan Lerma, Jennifer Rubino's parents, who lived in Texas, and Lerma's mother.

When Bustos and Hobbs met with the children, they learned they had not seen Lerma in more than two years, and Lerma himself told them he had not been in their lives for a couple of years.

Hobbs and Bustos "disregarded the knowledge they learned and was available to them through the 2012, 2013, 2016 and 2020 investigations about the significant and specific risks Juan Lerma posed," the lawsuit states.

The wrongful death lawsuit named Hobbs and Bustos as defendants. Efforts to reach the pair were unsuccessful. Both are still employed at the agency, according to a spokesperson.

After getting approval from Hobbs, Bustos placed the children in Lerma's custody in Carlsbad with the knowledge that Hobbs, as the CYFD investigator, "was required to complete all of the requirements of an investigation into suspected abuse and neglect," the lawsuit states.

Hobbs, according to the lawsuit, violated CYFD policy and procedure in multiple instances, from failing to conduct a home visit or a safety assessment to determine whether the children were in imminent danger.

Hobbs closed the investigation on May 18, 2020, which caused the children to continue to live with Lerma "unsupervised and without services despite the known or obvious risks that Juan Lerma posed," the lawsuit states.

A few weeks later, Lerma's mother went to her son's home to pick up Samantha, who had turned 8 just over a week after Hobbs closed the investigation.

Lerma told his mother the little girl was dead, according to the lawsuit.

"Juan Lerma placed Samantha's ... body into a garbage bag and then put her into a trash can," the lawsuit states.

An autopsy listed Samantha's cause of death as blunt force trauma to the head. Her brother told police he witnessed Lerma beat Samantha to death.

'Red flags all over the place'

Lerma was convicted by a jury in Carlsbad of intentional abuse of a child resulting in death and tampering with evidence. He was sentenced to life in prison in 2022.

Davis, a partner at Albuquerque-based Davis Kelin Law Firm LLC, said CYFD knew children were not safe with Lerma.

"They just gave the children to Juan Lerma, then there was no follow-up," he said. "They never checked on the children and within months, Samatha was dead — beat and beat senseless."

Under the settlement, the majority of the $5.5 million will go to a trust set up for Mykul's benefit and another portion of the settlement will be paid to Samatha's half-siblings, minus legal fees and costs. The settlement doesn't disclose the amount for legal fees and costs, and Davis declined to give the figure.

CYFD admitted no culpability under the settlement, which includes a "no admission of liability" provision.

Davis said Samantha might still be alive today had CYFD done its job.

"He was basically abusing them," he said, referring to Lerma. "He was not feeding them. He was beating them, particularly beating Samantha, and finally beat her enough to kill her."

Lerma himself was once in the CYFD system. The lawsuit states he "had a significant history of juvenile delinquency as a result of drug use and perpetrating burglary, physical violence, and criminal sexual contact."

During his adolescence, CYFD placed Lerma in multiple shelters, youth homes and residential placements to address his mental and behavioral health concerns, including management of psychotropic medication, the lawsuit states. He aged out of the system when he turned 18.

"He was in and out of the CYFD system, so he was known to them, and he'd been in quite a bit of trouble as well, so he was a known product," Davis said. "They had many, many records on this guy. There were red flags all over the place for CYFD to say, 'Hey, this is not somebody we can just give children to and then walk away.' "

An obituary published online refers to Samantha as "Sam."

"Sam enjoyed coloring, reading books from the library and writing stories as she had a vivid imagination," the obituary states. "She loved her pets and playing with her cousins."

The obituary identifies Juan Lerma as her father.

Follow Daniel J. Chacón on Twitter @danieljchacon.