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‘Is the pain ever going to go away?’

January 27, 2019

Teresa Tapia didn’t decorate her small Santa Fe apartment for Christmas last month.

She didn’t see the point.

She’s had no joy, Tapia said, since she learned a year ago about her grandson’s death.

Jeremiah Valencia had been dead for two months when Santa Fe County sheriff’s deputies found his body buried inside a plastic box along a roadside near Nambé on Jan. 28 last year.

For the boy’s maternal grandmother, who cared for him for years, the loss is still fresh.

“Every day, I look at his pictures and I know I’ll never see him again. Just knowing that, everything he went through, nobody deserves that,” Tapia said in a recent interview at her home. “I ask myself … ‘Is the pain ever going to go away? Is my heart ever going to be whole again?’ And honestly, I don’t think it will.”

Investigators say the 13-year-old was beaten to death in November 2017 by his mother’s boyfriend, Thomas Wayne Ferguson, and the man’s son, Jordan Anthony Nuñez, while his mother was in jail. One of the grisliest crimes against children New Mexico has seen, Jeremiah’s death brought to light a severely fractured public safety and child protection system that failed him at numerous points of prevention.

Both he and Ferguson had slipped through the cracks.

Jeremiah had stopped going to school, but neither school officials nor social workers came looking for him.

Ferguson, who had been convicted of domestic abuse multiple times and was wanted for violating the terms of his probation, avoided arrest repeatedly because of missteps by police, probation officers and prosecutors.

Household members told authorities 42-year-old Ferguson had beaten Jeremiah so badly before his death that the boy lost teeth. He was forced to spend hours at a time in a dog cage, relatives said, and was stabbed with homemade objects; his wounds turned black with infection.

Ferguson was charged with first-degree murder. He took his life in late April in a Santa Fe County jail cell.

Jeremiah’s mother, 36-year-old Tracy Ann Peña, accepted a plea deal for charges related to her son’s death and faces 12 years in prison.

Prosecutors have turned their attention to the 20-year-old Nuñez. Initially cast as an accomplice in the killing, Ferguson’s son is now suspected of dealing the fatal blow. His trial on child abuse resulting in death and other charges is scheduled for November.

As the case moves forward, many stakeholders, under the administration of a new governor, are promising changes to help prevent such tragedies. A few issues have already been addressed.

But Tapia’s trust in that system is shaken.

“I don’t see justice in the system at all,” she said. “My grandson would be alive if Thomas [Ferguson] had been behind bars, where he deserved to be.”

‘We are creating risk’

New Mexico’s law enforcement and child welfare agencies “work in silos,” as Gov. Michelle Lujan Grisham sees it.

“We don’t share information, and we are creating risk,” she said in a recent interview. “It’s not just that we aren’t addressing it — which we’re not. We are creating risk.”

Lujan Grisham said one of the top mandates of her Children’s Cabinet, composed of Cabinet-level leaders of state social services agencies, is to create requirements for agencies to collect and share key information about children and families in need.

“I need to figure out … how do we start creating reporting that isn’t overly burdensome, but is clear, that allows us to see what’s going on in these high-risk situations,” she said. “If we don’t, there will be another Jeremiah, and the thought of that makes me sick to my stomach.”

Her Children, Youth and Families Department secretary, Brian Blalock, said his hope is that the state can build a collaborative system that will last beyond any one governor’s term — “because ultimately, we’re all responsible.”

There were several instances in which better communication and more efficient collaboration between public safety agencies might have landed Ferguson behind bars or prompted a potential lifesaving welfare check on Jeremiah.

Repeat offender

Before Ferguson met Jeremiah’s mother, he could have been sentenced to prison. While serving probation for a 2014 case in Santa Fe in which he pleaded guilty to kidnapping and beating a girlfriend, he was charged with abusing another woman in Sandoval County.

The incident prompted a request by Santa Fe prosecutors that a state district judge revoke Ferguson’s probation and send him to prison to serve out the years that remained of a suspended sentence in the 2014 case.

The judge denied the motion and Ferguson remained free.

In April 2018, when District Judge T. Glenn Ellington faced Ferguson in court again for the probation violation, he said prosecutors had told him the district attorney in Sandoval County did not intend to pursue the domestic abuse charges. But he later learned the case had moved forward and Ferguson had pleaded guilty.

As Ferguson stood before him, by then accused of the boy’s murder, Ellington sentenced him to six years in prison for the probation violation. Ferguson killed himself two weeks later.

In a recent interview, First Judicial District Attorney Marco Serna said the communication gap between the two jurisdictions in Ferguson’s case had prompted him to “put an emphasis” on communicating better with other agencies.

Ferguson also had violated the terms of his probation in early 2017 when he moved from Las Vegas, N.M., to Nambé — across county lines — and stopped communicating with his probation officer. He was deemed an absconder.

When probation officers went to find him at the Nambé address he had given their agency, they encountered pit bulls in the yard. They didn’t knock on the door and they never went back. They reported to the Probation and Parole Division that they couldn’t verify it was Ferguson’s home.

Other probation officers continued searching for Ferguson at different locations.

Meanwhile, inside the Nambé home, family members said, he was torturing Jeremiah.

The Corrections Department didn’t respond to a recent inquiry on whether the case was properly handled or if the probation division has made any training or procedure changes since Jeremiah’s death.

Critical police encounter

On Nov. 24, 2017 — the day after Thanksgiving and two days before investigators believe Jeremiah was killed — Santa Fe police encountered his mother and Ferguson in a Walmart parking lot. Both had warrants out for their arrests. Ferguson’s had been signed by a judge just a few days earlier.

The officers arrested Peña, who was wanted on a probation violation and had a history of drug crimes and shoplifting. But in body camera video of the incident, the officers didn’t seem aware of Ferguson’s warrant and let him go.

Because of the holiday, it might not have been entered into a crime information system where police could have seen it.

Serna acknowledged the warrant should have been filed sooner and that it was delayed in part by prosecutors. His office since has addressed such delays by assigning two attorneys to handle probation violations, which has streamlined the process, he said.

At the time of Peña’s arrest, Ferguson was wanted on a separate arrest order issued by the probation division. But, like the warrant, it wasn’t entered into a national crime database where police could find it.

A Corrections Department spokesman defended the division for the failure, saying such orders can only be entered in the National Crime Information Center database by a 911 dispatch center, such as the Santa Fe Regional Emergency Communications Center.

Ken Martinez, the center’s director, said his agency at the time didn’t have an agreement with Probation and Parole to enter its arrest orders. It has since agreed to help, he said.

“We rely on them to let us know,” Martinez said.

Child protection protocol?

Also troubling, Peña’s arrest raised questions about whether the officers followed Santa Fe Police Department protocol on how to address dependent children of adults taken into custody.

Under the department’s policy, the officers should have asked Peña whether she had any dependents in her care. After learning she had two children at home — Jeremiah and his now 14-year-old sister — and that Ferguson would be caring for them while their mother was in jail, the officers should have conducted a background check, according to the policy.

That would have revealed his past convictions for domestic violence and might have started the process to find an alternate home for Peña’s children.

In video of the incident, Peña doesn’t speak of Jeremiah but mentions her daughter several times. Nonetheless, the officers wrote in a report that Peña “was not caring for any children or dependants [sic] at the time of her arrest.”

Jeremiah died in Ferguson’s care two days later. Jeremiah’s sister remains in foster care.

Police investigated the arrest by Officers Heinz De Luca and Jacob Martinezto see if they had followed department policy, Deputy Chief Robert Vasquez said in an email. He referred further questions about the outcome of the internal investigation to the city attorney.

City spokesman Matt Ross said in an email he could not discuss the investigation’s outcome or confirm whether either officer faced any discipline.

“I can’t comment on personnel matters, and that falls squarely into that category,” Ross wrote.

‘Unthinkable’ loopholes

Despite a state law requiring children to enroll in school, no one in the public education system caught Jeremiah’s seven-month absence.

The law doesn’t specify who is responsible for oversight of children whose parents take them out of one district and fail to enroll them in another, as Peña did with Jeremiah. A spokeswoman for the state Public Education Department said last year that the onus is on districts, not the state agency, for enforcing the compulsory attendance law.

This loophole frustrates state Rep. Linda Trujillo, a former Santa Fe school board member.

“It was unthinkable that we could just have this gap in our system,” Trujillo, D-Santa Fe, said in a recent interview. “Those young people who need our help the most need to know that someone out there cares. … It was heartbreaking.”

Trujillo and state Sen. Liz Stefanics, D-Cerrillos, have co-sponsored a bill aimed at closing that gap in the attendance enforcement system. House Bill 168 would require the Public Education Department to track student identification numbers every 10 days. If it finds a student who is not enrolled in any school district, the agency would have to try to determine the child’s whereabouts. If the child’s past school district or charter school doesn’t have that information, the agency would report the student to the state Children, Youth and Families Department to start an investigation.

“Even if it saves one child, it’s worth it,” Trujillo said of the bill.

State Attorney General Hector Balderas cited another loophole in state law when it comes to protecting children: a narrow mandate for reporting child abuse.

As the law stands, Balderas said in a recent interview, New Mexicans are required to report child abuse or neglect by a parent, guardian or custodian of a child.

“Priests, coaches, schoolteachers — there is not a mandatory duty right now to report abuse at the hands of those perpetrators,” he said.

Last year, then-Sen. Howie Morales, now the lieutenant governor, sponsored a bill that would have expanded that reporting duty. The bill died in a Senate committee. Balderas said he plans to push for the legislation again this year.

Both Serna and a spokesman for Balderas said Ferguson likely would have been considered a custodian under the current interpretation of the law.

According to police documents and interviews, at least a few of Jeremiah’s family members knew in mid-2017 that the boy had been hit by Ferguson at least once.

They didn’t report it.

Part of that, Tapia said, was fear of Ferguson. She also didn’t think the justice system was going to make a difference.

“Even if we would have reported, I don’t think they would have done anything to Thomas,” Tapia said.

After watching her daughter rotate in and out of jail for drug crimes and probation offenses over the years, and watching others file in and out of jail too, Tapia believed any jail time Ferguson would have faced would have been brief.

She thinks Jeremiah and his sister probably had the same fear of speaking out.

“You feel safe because he’s going to be locked up for two to three days, but then when he gets out, you’re going to be in trouble,” she said. “If you tell — if you try to say anything — or if you try to run and he catches you, you’re done.”

Serna said he doesn’t plan to charge Valencia’s relatives with failing to report child abuse, a misdemeanor crime.

Tapia, who took care of Jeremiah and his sister for years, said the pain of losing her grandson and losing contact with his sister is constant.

Court documents and jail logs show Tapia and her former husband were granted custody of the siblings by a judge in 2012, when Peña was in and out of jail on a series of arrests. Tapia said Peña had struggled with a heroin addiction.

The Children, Youth and Families Department has said the agency investigated concerns about the children’s care before they were placed with their grandparents but had not received any more reports of abuse until authorities discovered Jeremiah’s body.

While the judge granted custody of the kids to Tapia and her husband for only 12 months, documents show, Tapia said the couple kept them for half a decade.

Jeremiah loved to fish, she said, and played his trumpet poorly. He would joke with her by throwing fake snakes in her cart at the store.

But the kids missed their mother, Tapia said. In 2016, when her daughter seemed to be free from drugs and was living with Ferguson, who was working, she let the children return to Peña.

At the time, Tapia said, she was in the middle of a separation and then a divorce, and she couldn’t work because she suffered from fibromyalgia and degenerative bone disease. For a while, she said, she had to stay with friends and family. She couldn’t take care of Peña’s children.

Tapia went to see the kids, along with Peña and Ferguson when they were living in Las Vegas. Everything seemed good, she said.

She lost contact with Peña at some point in 2017, but that wasn’t unusual. Peña would often cut her out, she said.

Months later, Tapia got the horrible news.

“Sometimes I wonder, what could I have done?” Tapia said. She agonizes over the dilemma she faced, with no home of her own and no income.

“Then I feel like he’d still be alive if I would have done something,” she said, crying. “I don’t know.”

Blalock, who only recently stepped into the top the job at the state’s child welfare agency, said he’d like to find ways to offer more support to a rising number of grandparents like Tapia who raise their grandchildren — largely the result of a persistent opioid epidemic — with little resources.

“If we have a system that really relies on kinship care providers, especially seniors, especially grandparents,” Blalock said, “then we have to put resources and support into that because on the other end, we know we’re going to get healthier, happier children.”

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