Bom v. Superior Court (The People)

          Original proceedings; petitions for writ of prohibitions. George G. Lomeli, Judge. Writs granted. Los Angeles County Super. Ct. No. BA445260

          The Kuyumjian Firm and Hagop Kuyumjian for Petitioner Kevin Bom.

          Shelly Albert for Petitioner Patricia Clement.

          Joseph A. Gutierrez for Petitioner Gregory Merritt.

          Filer Palmer and Lance Filer for Petitioner Stefanie Rodriguez.

          Jackie Lacey, District Attorney, Phyllis Asayama, Deputy District Attorney, and Kenneth Von Helmolt, Deputy District Attorney for Real Party in Interest The People. No appearance for Respondent Superior Court of Los Angeles County.

          ROTHSCHILD, P. J.

         Petitioners Kevin Bom, Stefanie Rodriguez, Gregory Merritt, and Patricia Clement were social workers with the Los Angeles County Department of Children and Family Services (DCFS). In 2012 and 2013, petitioners provided emergency and family maintenance services to seven-year old Gabriel F. (Gabriel), and members of his family. Approximately six weeks after DCFS closed its case, Gabriel died as a result of child neglect and severe head trauma inflicted by his mother Pearl F. (Pearl) and her boyfriend Isauro A. (Tony).

         The People charged petitioners with felony child abuse (Pen. Code, § 273a, subd. (a)) and falsifying public records (Gov. Code, § 6200). At a preliminary hearing, the magistrate held them to answer the charges. After the People alleged the same charges by information, the petitioners moved under Penal Code section 995 to dismiss the information. The trial court denied the motions, and petitioners timely filed petitions for a writ of prohibition in this court. (See Pen. Code, § 999a.) We stayed proceedings in the trial court, issued an order to show cause, and consolidated the petitions for purposes of argument and this opinion.

         Because the allegations against petitioners under Penal Code section 273a, subdivision (a) are based on their alleged nonfeasance, the People would be required to prove that the petitioners either had the duty and ability to control Gabriel's abusers or had custody or control of Gabriel. We conclude that the petitioners never had the requisite duty to control the abusers and did not have care or custody of Gabriel for purposes of Penal Code section 273a, subdivision (a). We further conclude that the petitioners were not officers within the meaning of Government Code section 6200. There is, therefore, no probable cause to hold them on charges of violating those laws and the trial court should have granted the motions to dismiss. We therefore grant the petitions.

         FACTUAL SUMMARY

         Gabriel was born to Pearl in February 2005. From late 2005 until October 2012, Gabriel lived with Pearl's parents. In October 2012, he began living with Pearl, Pearl's boyfriend Tony, and Pearl's two other children, E.F. (age 11 years) and V.F. (age 9 years). Gabriel began attending Summerwind Elementary School that same month.

         On October 30, 2012, Gabriel told his teacher, Jennifer Garcia (Garcia), that his mother had hit him on his “bottom” with a belt buckle, causing him to bleed. Garcia noticed a bruise about the size of a half-dollar under Gabriel's left eye and another bruise about the same size on the top of his hand. She called the child protection hotline of DCFS to report potential abuse. Garcia told the hotline screener about the bruises she observed and what Gabriel had told her about being hit by the belt buckle. She said that Gabriel was worried that his mother would hit him because he did not understand his homework. Garcia also told the screener that Gabriel had once pretended to “snort something off of his desk, ” suggesting that Gabriel was being exposed to illicit drug use.

         The DCFS hotline screener prepared referral documents to initiate an investigation of Garcia's allegations. The documents included the information provided by Garcia, as well as reports concerning Pearl from the statewide electronic child welfare system/case management system known as CWS/CMS. These records showed that Pearl had a history of illicit drug use and that the family had been the subject of four prior referrals to DCFS between 2003 and 2011. DCFS determined that each prior referral was “[u]nfounded.”

         DCFS assigned Gabriel's case to petitioner Rodriguez, a social worker in the emergency response unit in DCFS's Palmdale office. Petitioner Bom was Rodriguez's supervisor.

         On October 31, 2012, Rodriguez called Garcia, and Garcia repeated to Rodriguez the information she had given the hotline screener. Rodriguez gave Garcia a telephone number that Garcia could use to contact Rodriguez directly.

         Rodriguez contacted Pearl by phone and arranged to visit the family home on November 1, 2012. During that visit, Rodriquez observed that the three bedroom apartment had functioning utilities and adequate food. She saw no drug paraphernalia in the home. Pearl told Rodriquez she had been a gang member and had a history of cocaine abuse and alcohol abuse, but had been clean for over five years. She said she takes a prescription narcotic for arthritis pain and agreed to drug test. Pearl said that Gabriel's father was in prison and would not be released for six or seven years. Pearl told Rodriquez that she suffered from anxiety and depression and previously received mental health services.

         According to Pearl, Gabriel said that his report to Garcia was motivated by his desire to live with his grandmother again. Pearl told Rodriguez that Gabriel claims to hear “little voices” and has aggression issues. She believed that Gabriel may have mimicked snorting cocaine in his classroom because he had watched the film “Blow.”

         Pearl admitted spanking Gabriel with a belt once, and said she did so because he had been lying and stealing. Rodriguez told Pearl that spanking a child with an object was inappropriate.

         Rodriguez spoke with Pearl's children and each said that they felt safe in the home and denied any abuse, drug use, or domestic violence in the home. Gabriel denied that Pearl had spanked him with a belt, and his siblings said they had never seen Pearl spank Gabriel with any objects. V.F. reported that her mother spanked her once with a belt. Gabriel said the bruise on his face was caused by bumping the corner of the bathroom door when his mother closed it without realizing he was in the way, and that a scratch on his hand was caused by falling down. He said that his mother helps him with his homework and denied that she makes him stay up all night to finish it. What he told his teacher, he explained, was “a joke.”

         Rodriguez observed a bruise “approximately the size of a quarter, ” on Gabriel's buttocks and marked the location of the bruise on a body chart in Gabriel's case file.

         On November 2, 2012, Pearl and Tony submitted to drug tests, which came back negative.

         On November 20, 2012, Rodriguez made an unannounced visit to the family home. Rodriguez reported she did not see any marks or bruises on the children indicating abuse or neglect. Pearl told Rodriguez that Gabriel had been behaving better since Tony asked a deputy sheriff to let Gabriel sit in the back seat of his patrol car to see what it felt like to be a criminal.

         On November 27, 2012, Garcia noticed that chunks of Gabriel's hair were missing, there were four or five bloody scabs on his scalp, a cut on his ear, and he had a bruise the size of a half-dollar under one eye. Gabriel appeared to be sad and embarrassed.

         Two days later, Garcia telephoned Rodriguez and reported that Gabriel had a “busted lip” and a “weird” haircut, and had told Garcia that his mother punched him in the mouth. Neither Garcia nor Rodriquez reported this suspected abuse to the DCFS hotline.

         Later that day, Rodriguez visited the family home and observed that Gabriel's hair was cut in a “mohawk” style with chucks of hair missing, and his lower lip appeared to have a scabbing blister. Gabriel told Rodriguez that he bit his lip and cut his own hair in a style to look like a dragon. He said his mother had not spanked or hit him anywhere on his body recently and denied that she punched him in the mouth. Rodriguez did not make any marks on a body chart.

         Rodriguez spoke with Gabriel's siblings, who denied any physical abuse. V.F. told Rodriguez that Gabriel injured his lip by falling on the front steps. Rodriquez also spoke with Gabriel's maternal aunt, who was visiting. The aunt reported that when Gabriel was younger, he would smear feces on the wall, get in fights, cut little girls' hair, and “bite the family dog on his private area, and the cats on their ears and paws.” Pearl told Rodriquez that she had spanked Gabriel twice recently because he misbehaved, but did not use a belt or other object. Pearl said she was interested in services for Gabriel to address his behavioral issues.

         There were no reports or incidents concerning Gabriel during the next four weeks, and, so far as our record reveals, no communication between Pearl or Gabriel and any of the petitioners during that time.

         On December 27, 2012, Rodriguez presented the case to a social worker in DCFS's family preservation unit for a possible transfer, or to “be promoted” to that unit. The family preservation unit provides family maintenance services, such as counseling, on a voluntary basis. It is an alternative to juvenile court dependency proceedings.

         In connection with the promotion of the case to the family preservation unit, Rodriguez completed and signed a document titled “Investigation Narrative (Investigation/Assessment and Referral Disposition Findings), ” which provided a summary of the referral, contacts, and family history concerning Gabriel's case. (Boldface and underlining omitted.) The investigation narrative concluded that the allegations of physical abuse were “inconclusive, ” but added an allegation of “general neglect” based on inappropriate corporal discipline. (Boldface and underlining omitted.) Based on DCFS's risk assessment methods, the family was placed in a “very high” risk category. The document was prepared on or about December 28, 2012, and signed by Bom and Rodriguez on January 30, 2013.

         Rodriguez also prepared a case plan and family assessment. The case plan stated that Pearl's discipline had been “rigid and punitive” “to the detriment of the children, ” and that her “inappropriate corporal discipline” substantiated “allegations of general neglect.” The case plan reiterated the statement in the investigation narrative that the “allegations of physical abuse are inconclusive.” The plan further stated that the children were “physically healthy, ” and that Pearl was cooperative, motivated to solve the problems, willing to accept services, and willing to change. The plan included counseling for Pearl and the children, physical exams for the children as needed, and contact with a social worker twice each month.

         On January 16, 2013, Rodriguez visited the family home and saw the children, who reported they were doing well. Rodriguez did not see any bruises or marks indicative of abuse or neglect and reported that they are “visibly healthy.” Nor did she see any “endangering elements [in the home] that would be cause for immediate concern.” Pearl told Rodriguez that “things had been going well” and there were no recent behavioral issues with Gabriel.

         On January 29, 2013, Garcia called Rodriguez and reported that Gabriel had returned to school after a week's absence with swelling under one eye and little bruises on his face. Garcia said that when Gabriel was among other children, he said he had fallen off his bed while playing with his brother. When Garcia spoke with Gabriel alone, however, Gabriel told her that his mother shot him in the face with a BB gun while she made him do exercises.

         Rodriguez spoke by telephone with Pearl, who said that Gabriel had fallen off the top bunk bed and suffered some scratches and bruises. Rodriguez visited the family home that afternoon and observed that Gabriel had small bruises and slight swelling on his face. Gabriel told Rodriguez that he had been playing tag with his brother E.F. on the top bunk in the dark when he pulled away and fell face first onto bicycles that were stored next to the bed. Gabriel claimed he gave Garcia the same account and denied telling her that his mother shot him with a BB gun. Gabriel's siblings told Rodriguez that Gabriel had fallen off the bunk bed and onto the bicycles. They also denied that someone had shot anyone with a BB gun.

         Pearl told Rodriguez she did not know why Gabriel would say she shot him with a BB gun. Pearl also said that Gabriel had recently approached her, said he was angry, and began hitting himself in the face. Rodriguez discussed the family preservation case plan with Pearl, who then signed it. Rodriguez did not report the new allegations regarding the BB gun to the DCFS hotline, and did not update the body chart for Gabriel to indicate the bruising and swelling on his face.

         On January 30, 2013, Rodriquez and Bom signed a case transfer check list, effectively transferring the case to the family preservation unit. The case was transferred to petitioner Merritt, a supervisor social worker in the family preservation unit, who assigned the case to petitioner Clement, a social worker. Carmen LeNorgant from the Children's Center of Antelope Valley was assigned to provide in home counseling services.

         LeNorgant visited the family home approximately weekly between and including February 8, 2012 and March 6, 2013. Clement accompanied LeNorgant during the February 13, 2013 visit, and completed a family risk assessment that scored the family as having a “high” level risk of abuse-a level between “moderate” and “very high.”

         LeNorgant found no safety issues for the children in the home on each of her visits. On February 27, 2013, however, Pearl showed LeNorgant a suicide note that Gabriel had written stating, “I love you so much that I will kill my sowf” (sic) and “I love you in till you diy” (sic). The note included a drawing showing two characters upside down. LeNorgant reported the matter to DCFS and the Los Angeles County Sheriff's Department. Sheriff's deputies visited Gabriel's home, but made no arrests.

         During a visit with the family on March 1, 2013, Clement discussed Gabriel's suicide note with Pearl. Clement noted that Gabriel is having “angry and confusing thoughts about his mom and his grandparents, ” and he “is working with this in counseling.”

         On March 6, 2013, LeNorgant and Clement visited the home and reported that the children appeared healthy and observed no child safety risks in the home. Clement reported that the children “attend school regularly, ” a fact the People would later assert was false.^[1] Clement assessed that Pearl was “overwhelmed with her own emotional pain” and “feels that having [family preservation] services is to[o] much for her.” Clement concluded that Pearl is ...