California Court of Appeals, Second District, First Division
Original proceedings; petitions for writ of prohibitions.
George G. Lomeli, Judge. Writs granted. Los Angeles County
Super. Ct. No. BA445260
Kuyumjian Firm and Hagop Kuyumjian for Petitioner Kevin Bom.
Albert for Petitioner Patricia Clement.
A. Gutierrez for Petitioner Gregory Merritt.
Palmer and Lance Filer for Petitioner Stefanie Rodriguez.
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.
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).
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.
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.
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.
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
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.”
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.
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.
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.
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
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.
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
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.
November 2, 2012, Pearl and Tony submitted to drug tests,
which came back negative.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.”
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
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.”
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. 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 ...