ALBUQUERQUE (KRQE) – A 14-year-old girl was left staying with a child abuse suspect after her father was killed in a biker gang shooting because of a loophole in New Mexico law.
The case occurred because of an odd set of circumstances that show a loophole where law enforcement was not required to run a background check in this circumstance. It led to a teen living with a man who isn’t allowed to have contact with his own children because of a judge’s order.
Although the teen has told authorities she feels safe, concerns over her living situation have led to a requirement that she move somewhere else.
An Absent Mother
Katiearcola Garcia admits she wasn’t the best mother years ago.
“I was really young … ended up going down the wrong path,” Garcia said.
She had the now-teen girl, whom KRQE News 13 is not identifying, with Sean Duffey in 2001. Two years later, Garcia failed to show up to court and was ordered to pay $50 a month in child support. Her rights to take care of her daughter were suspended until she showed up in court. In 2004, the case was put on hold because Garcia never did show up to court, according to online court records.
Garcia says she has never been in her daughter’s life and that Duffey kept her away from the girl.
A Murdered Father
State Police swarmed the parking lot of the Wild Pony Bar early on the morning of September 13. A shootout between the Bandidos and Poor Boys motorcycle clubs left two people dead and three more injured.
One of the two killed in the gunfire was Duffey, a member of the Bandidos, according to State Police.
Duffey’s death left his 14-year-old daughter without the only parent who had custody of her.
State Police Sgt. Chad Pierce says authorities tried to notify the girl of her father’s death at her home, but nobody answered the door. After making contact, Agent Lopez with State Police spoke with the teen and her uncle Dale Duffey. Both told Agent Lopez they didn’t want to meet with them, but assured the Agent that the teen was safe with her uncle.
The state Children Youth and Families Department was not notified, nor was it required to be notified.
No criminal background check on Dale Duffey was conducted, nor is one required to be in this situation under New Mexico law. If CYFD were placing the teen in a home in an emergency situation, all adults in that home would have to undergo a criminal background check.
An Accused Uncle
If a background check had been conducted on Dale Duffey, police would’ve learned that three days prior to the shooting, he had been arrested on suspicion of child abuse.
According to a criminal complaint, Dale Duffey’s twins, a teen boy and girl, told a school resource officer they had been punched and slapped by Dale Duffey.
“This morning [Dale Duffey] got mad that we didn’t tell him that we missed the bus on Tuesday,” one of the twins told police, according to the complaint. “We only lie to him when we make mistakes because we are afraid of him.”
They also told deputies that Dale Duffey had kicked one of them in the ribs a few months earlier, the complaint states.
Detectives interviewed the twins’ mother, who claimed she was “in such fear of her estranged husband that she is trying to flee the state with her children,” according to the complaint.
When investigators interviewed Dale Duffey, the complaint says, deputies claimed he admitted to hitting his teen kids, but said he “did not think what he was doing was considered child abuse.”
Dale Duffey was arrested and charged with four counts of child abuse on September 10, three days before his teen niece was left with him. Under his conditions of release, he was ordered not to have contact with the twins.
Attempts to reach Dale Duffey at his South Valley home were unsuccessful.
When Garcia and the 14-year-old’s maternal grandmother, Arcola McCorstin, learned where the girl was staying, they filed an emergency petition with the court.
It asks the judge to give Garcia custody of her biological daughter, saying she has turned her life around and has been living a “clean lifestyle.”
[Garcia] has made valiant efforts to change her lifestyle and is now the best person to take over physical and legal custody of the … minor child.
Even if she doesn’t gain custody, she believes the child’s current living situation is unacceptable.
“I am looking to have her removed from there and have her put somewhere that is safe,” Garcia said.
But the courts may not have an effect on that situation any time soon. The petition isn’t scheduled to be heard until February.
Meanwhile, the teen’s paternal grandmother, Catherine Serna, was granted temporary guardianship shortly after Sean Duffey’s death. She has filed a separate petition to be granted permanent guardianship. The teen has been staying with Serna and Dale Duffey.
A call placed to Serna’s attorney was not returned Tuesday afternoon.
With no court date for custody until next year, Garcia and McCorstin have been trying to get CYFD, State Police and the Bernalillo County Sheriff’s Office to take action and put her in a home where an accused child abuser is not staying.
CYFD conducted an initial investigation following calls, but sent McCorstin a letter on October 14. It said there was not enough information provided or a specific allegation made that would rise to the level of child abuse or neglect.
On Monday, Bernalillo County deputies heard Garcia and McCorstin’s concerns and conducted a welfare check at the South Valley home where Serna, Duffey and the teen are living.
According to an incident report obtained by KRQE News 13, when contacted by a sheriff’s deputy, Dale Duffey confirmed the teen was living with him and Serna. Dale Duffey told the deputy that he was told only that he couldn’t have contact with his own children and that other children weren’t mentioned in his conditions of release.
The deputy and a CYFD caseworker continued the investigation. The teen told a deputy that she felt safe and wanted to stay with Serna and Dale Duffey, according to the incident report.
According to an incident report, the deputy and the caseworker determined that, despite Dale Duffey’s pending child abuse charges, the teen’s living arrangements were safe and she could stay there. However, a source with knowledge of the investigation tells KRQE News 13 that Serna has been told to move out of the home and take the teen with her.
A Mother’s Message
Garcia says she’ll continue to fight for the teen and has a message for her.
“My message is that I love her, I always have,” Garcia said. “I want her to be safe, and I want her to be happy.”
Timeline of Events
- 2001 – Sean Duffey and Katiearcola Garcia give birth to girl
- 2003 – Katiearcola Garcia’s custody suspended. Sean Duffey maintains sole custody of teen
- 2004 – Case closed after Garcia fails to appear in court
- Sept. 10, 2015 – Dale Duffey arrested by BCSO on child abuse charges
- Sept. 13, 2015 – Sean Duffey killed in biker gang shootout
- Sept. 13, 2015 – State Police notifies teen of father’s death, allow her to stay with Dale Duffey
- Sept. 18, 2015 – Katiearcola Garcia files a petition for custody of teen
- Oct. 7, 2015 – Katherine Serna, teen’s grandmother files petition for custody of teen
- Oct. 19, 2015 – CYFD and BCSO investigate teen’s living situation