By Mark Gutglueck
Within the last two weeks, two separate appellate courts, one at the state level and one at the federal level, have made two strikingly different interpretations which may ultimately determine the degree to which the employees of that arm of the government that exists to protect vulnerable children from the cruelty of their parents or the adults overseeing them must intervene and insert themselves into the otherwise private lives of citizens and families to ensure that protection takes place.
The upshot of both decisions taken together, one in a civil matter and the other in a criminal case, is a continuation of the confusion and inexactitude and the wide latitude in standards that critics of the child protection system maintain has allowed children in abusive situations to be killed or suffer irreparable physical and psychological harm.
One of those cases cuts right to the heart of the function of the Children and Family Services Department in San Bernardino County and the ordeal of a social worker who was fired because of what his office supervisors felt was his too-zealous efforts to monitor and protect children living in potentially abusive foster homes. The other relates to a criminal case against four social workers in neighboring Los Angles County whose careers as those dedicated to the protection of children were forever marred more than three years ago when they were criminally charged with not having adequately recognized the signs of child abuse and did not do enough to head off an ultimately fatal situation when they dealt with or supervised others in a situation involving a child who ultimately died at the hands of his parents while living in a household rife with torture, cruelty and starvation.
In the middle of the just-concluded previous decade there were events on both sides of the Los Angeles/San Bernardino County border that encapsulated the dilemma faced by social workers in determining just how diligent or aggressive they can and should be in ensuring the safety of children in a free society.
In 2016 across the county line, the Los Angeles County District Attorney’s Office charged two of that county’s social workers, Patricia Clement and Stefanie Rodriguez, and their supervisors, Kevin Bom and Gregory Merritt, with one felony count each of child abuse/child endangerment and falsifying public records in connection with the May 2013 death of 8-year-old Gabriel Fernandez, who had suffered months of torture and abuse at the hands of his mother, Pearl Sinthia Fernandez, and her boyfriend, Isauro Aguirre.
Los Angeles County District Attorney Jackie Lacey at that point vowed to make cases against neglectful social workers who had been assigned to cases involving children who later died at the hands of their parents or foster care providers. According to children’s advocates, Los Angeles County Children and Family Services case workers were too often ignoring the entreaties of extended family members, neighbors, teachers and other observers that they look into concerns of abusive behavior by adults in households where it appeared that natural or adopted or foster children were being physically abused, emotionally maltreated, sexually assaulted and/or starved. In the case of young Fernandez, a more than two-year-long investigation that concluded in 2016 found that the Los Angeles Department of Children and Family Services had on multiple instances been alerted to the abusive conditions Gabriel Fernandez was subjected to but had not acted to remove him from the situation which ultimately led to his death.
The charges filed against the social workers in the Fernandez death were ones that had the potential of 10-year prison sentences if the accused were to be convicted.
In San Bernardino County, there have been over the years recurrent reports of similar cases involving children’s deaths as well as ones where children had not died, but had been subjected to physical and sexual abuse by their parents or legal guardians, and that the San Bernardino County Department of Children and Family Services had failed and continues to fail to intervene on those children’s behalf.
This state of affairs has flourished, some have charged, because former District Attorney Mike Ramos, who held that office from January 2003 following his 2002 election until January 2019, shied away from prosecuting indolent social workers. Ramos’s reluctance was an outgrowth of Ramos’s concern that filing such charges would establish virtually all of the grounds that would be needed by an individual with standing, such as a surviving family member of a dead child, to launch and prevail in a civil suit against the county that would potentially cost taxpayers millions of dollars.
Going back at least as early as 2013, there were rumblings within the San Bernardino County Children and Family Services Department about both abusive biological parents as well as abusive foster parents entrusted with the care of children who were in the process of being placed for adoption. In several cases, those Children and Family Services Department employees’ concerns were not adequately addressed. Complicating the issue were the confidentiality restrictions imposed on the department’s case files, making it difficult for those with concerns to bring the issues out into the open or to the attention of others outside the department for some means of resolution.
Mary Anna Whitehall was a social worker with the San Bernardino County Department of Children and Family Services. In July 2013, another social worker, Eric Bahra, was assigned to investigate a case in which a nine-month old baby died under suspicious circumstances while living in a foster home. Four older children living in the home were placed in protective custody and, after the detention hearing, Whitehall was assigned to investigate the matter for the resultant jurisdiction/disposition hearing, in a capacity referred to as a “jurisdiction/disposition writer.” During her investigation, Whitehall obtained the police report relating to the child’s death, which corroborated Bahra’s concerns over the safety of the surviving children, and photographs of the home where the baby lived at the time of death, documenting filthy conditions, including feces on the floor. These photographs confirmed Bahra’s description of the house, and a report generated by doctors who examined the four siblings showed ligature marks on the wrists and ankles of the children, together with burn marks. As Whitehall was compending her report on the matter, the deputy director of San Bernardino County Children and Family Services instructed her to withhold certain photographs and instead provide other photographs that had been altered. Whitehall subsequently learned that the Children and Family Services Department never provided a complete police report to the court.
Worried that the court would base its decision on an incomplete and inaccurate picture of the home, Whitehall went to the San Bernardino County Office of County Counsel, the county’s in-house attorneys, and sought out the deputy county counselor assigned to oversee the Children and Family Services Division, providing the attorney with a computer disk containing all the photographs obtained from the police. Shortly after providing this information to the office of county counsel, Whitehall was removed from the case by her higher-ups in the Children and Family Services Department. She was given specific instructions that she should not discuss the case with the new jurisdiction/disposition writer who was brought in to replace her. Whitehall considered this to be highly irregular, given that a jurisdiction/disposition writer ordinarily included into a case report interviews and information obtained from other social workers who have worked on a case. Whitehall at that point learned that Bahra, the original social worker assigned to the matter who was just short of serving out his 12-month probationary period as a county employee after which he would have had civil service protection, had been fired, allegedly for exaggerating the condition of the house and reporting the smell of methamphetamine.
Whitehall knew, however, that the information provided by Bahra had been confirmed by another social worker who had assisted him during the initial response, as well as by the police report. Whitehall knew, as well, that Bahra had antagonized his superiors by raising the issue of inadequate cross-referencing of abuse reports in the department’s computer system.
In the meantime, a new trial relating to whether the surviving children were to remain in the foster home had been ordered on the alleged basis that Bahra had lied, and the case had been assigned to a different judge. All the previously presented evidence had been marked confidential with instructions that the new judge would not view it. Concerned for the safety of the four siblings of the dead baby, Whitehall, Bahra and the social worker who had assisted him during the initial response decided to file a motion to inform the juvenile court that a fraud had been, or was about to be, perpetrated on the court.
Whitehall and Bahra conferred with an attorney they retained, Valerie Ross, and discussed with her the potential liability they ran by proceeding with their plan to inform the court of the full range of circumstances pertaining to the matter. Ross drafted for Whitehall a declaration containing the assertions of fact pertaining to the case as she knew them. The three social workers filed a motion to inform the juvenile court that the San Bernardino County Department of Children and Family Services had perpetrated a fraud upon the court by telling the court that Bahra in his capacity as a social worker had lied and by instructing Whitehall to withhold evidence and provide altered photographs to the court and counsel.
Six days after filing the motion, Whitehall was placed on paid administrative leave for two months. The county’s reasons for placing Whitehall on administrative leave were to initiate an internal investigation regarding her potential violation of county rules and policies barring the disclosure of confidential information to unauthorized persons. The county asserted that social workers, including jurisdiction/disposition writers, are overseen by supervisors and managers who are required to review the underlying case and supporting evidence, and determine whether the recommendations are appropriate.
The Children and Family Services Department further asserted that its supervisors have the final say in determining what evidence to present to the juvenile court and what recommendations to make, based on a memorandum of understanding between the county and what was then the social workers’ union, the San Bernardino Public Employees Association. That memorandum of understanding, the county claimed, delegates such discretionary authority solely to the department’s management. Thus, according to the county, Whitehall’s allegation regarding presentation of photographs to the juvenile court was within the Children and Family Services’ Department’s management’s discretion, and its withholding of the photographs implicating the foster parent in question in the abuse of the children under his care did not constitute fraud as Whitehall, Bahra and the other social worker had alleged in their motion with the juvenile court.
Bahra contested his firing, seeking a hearing before San Bernardino County’s Civil Service Commission. Bahra maintained that he had acted forthrightly and in a good faith effort to fulfill his obligation as a social worker, and that his action was in accordance with the best interests of the children who had been placed into an abusive and demonstrably life-threatening position. His seeking to ensure that others in the Children and Family Services Department were apprised of the situation within the home where the toddler had died and where the welfare of other children had been endangered and might in the future be put at risk was consistent with his function and duty as a social worker, he maintained. Moreover, his participation in the motion to bring those circumstances and the efforts by his supervisors in the Children and Family Services Department to obscure them to the attention of the juvenile court was justified by the consideration that without that relevant information at its disposal, the court would potentially have entered a court order that would have further risked the welfare and lives of the children in question. Bahra further asserted that he had disingratiated himself with the county and his supervisors by engaging in union organizing activity, which he had initiated shortly after he began working with county, most notably in his October 2012 circulation of a petition, which was ultimately signed by eight other Children and Family Service Department employees, protesting the management style of several of the supervisors in the Victorville office where he was assigned. Bahra maintained that while in Victorville he was subjected to a  “hostile working environment.”
Bahra made his case during a 14-day hearing involving 27 witnesses, 2,045 pages of testimony and 89 exhibits in which the county, the Department of Children and Family Services and that department’s administrators and managers offered their version of events, documenting Bahra’s insubordination consisting of his failure to follow the instructions of his immediate supervisors, his defiance of those at higher levels of authority in the department, together with his violation of department protocol and its rules of strict confidentiality. The civil service commission sustained five of the allegations of miscomportment made against Bahra by his superiors, with the hearing officer finding he “had not produced evidence of retaliation” as he had alleged. The hearing officer recommended that the civil service commission uphold Bahra’s termination and deny his appeal. The commission adopted the hearing officer’s report and sustained the Children and Family Service Department’s order of dismissal, but advised Bahra of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure § 1094.5. Bahra did not seek a writ under section 1094.5, but instead filed a lawsuit.
After Whitehall had been on administrative leave for approximately two months, the county moved to terminate her for violating the county’s confidentiality policy. Whitehall, advised of her pending sacking, resigned to avoid being fired, eventually landing a position as a social worker in Riverside County.
Meanwhile, late in its 2014-15 term, the San Bernardino County Grand Jury had been provided with evidence and information relating to circumstances of apparent abuse of children under the Children and Family Services Department’s supervision. Because those reports arrived so late in the grand jury’s term, no official inquiry into the matter was opened, and the 2014-15 Grand Jury, which had as its adviser Deputy District Attorney Charles Umeda, made no reference to those issues in the final grand jury report, which was released on June 30/July 1, 2015. The grand jury’s annual session runs in accordance with the governmental fiscal year, from July 1 to June 30.
At the end of July 2015, Umeda was appointed to serve as a Superior Court judge by Governor Jerry Brown. To replace Umeda, then-District Attorney Mike Ramos selected Deputy District Attorney Michael Dauber to serve as grand jury adviser.
A member of the 2014-15 Grand Jury was James Wiebeld, who had retired as a sheriff’s deputy after a 30-year career in law enforcement. Wiebeld was a holdover to the 2015-16 Grand Jury, which after its ranks filled out, elected him sergeant-at-arms. Wiebeld sought to have the grand jury maintain its focus on several issues that had been taken up by the 2014-15 Grand Jury, which had in his view not been sufficiently resolved nor reported in the 2014-15 Grand Jury’s report. Among those issues was that pertaining to the abuse of children under the purview of the San Bernardino County Children and Family Services Department.
When Wiebeld and other grand jurors sought to proceed with that investigation, they were met with Dauber’s at first subtle and then progressively firmer and eventually much harsher methods to discourage them, which ultimately resulted in the blunting of the investigation’s focus and its shift away from the nonfeasance, misfeasance and malfeasance within the Children and Family Services Department that allowed the criminal abuse and even deaths of some of the children at the hands of their parents and guardians to take place.
On September 11, 2015, Bahra, represented by Ross, filed a lawsuit against San Bernardino County, the Children and Family Services Department and several of its employees, alleging the county had wrongfully terminated him and had sought to muzzle him to prevent his whistleblowing activity.
On September 25, 2015, Whitehall, represented by Ross, filed a complaint against the county and the Department of Children and Family Services, based on whistleblower liability and retaliation.
In roughly the same time frame, some members of the county grand jury, frustrated with the thwarting of what they considered to be a legitimate and extremely important inquiry, made sub rosa statements to the media in an effort to get Dauber off top dead center. On August 27, 2015, Fox 11 News in Los Angeles reported that “children who were under the supervision of the San Bernardino County Department of Children and Family Services … were being abused, tortured, and killed.” According to that report, put together by correspondent Gina Silva, in certain cases, children had been entrusted to foster parents who had previously been caught abusing children living in their homes. In one of those cases, according to Fox 11, a child had died at the hands of an abusive foster parent after the San Bernardino County Department of Children and Family Services was made aware of the sadistic nature of that foster parent. The Fox 11 News report made reference to an ongoing grand jury investigation. Instantaneously, an issue which county officials had every confidence they might keep buried had leapt into the public spotlight, and was garnering attention at the regional, state, national and international level.
The following day, Friday August 28, a special meeting was convened at the county administrative building which was attended by then-County Executive Officer Greg Devereaux, District Attorney Mike Ramos, the director of the Children and Family Services Department, Marlene Hagen, and a handful of other high level county officials. The primary topic discussed, the Sentinel was told by a reliable source, was the formulation of a cover story and talking points calculated to defuse the issue of negligence in the San Bernardino County Children and Family Services Department which led to the deaths of children in the foster parent system it oversaw.
The county has since officially disavowed that any such meeting took place, or that Devereaux spoke to the district attorney on August 28, 2015 or any other time about the Children and Family Services Department or grand jury matters.
Forthwith, however, county officials in August and September moved to identify those responsible for the leaks that resulted in the foster child deaths becoming public and sought to squelch any further release of information. Grand jurors, whose investigations and proceedings are considered to be confidential and are informed of such and sworn to secrecy when a grand jury is impaneled, were threatened with arrest and prosecution if they violated that oath.
That fall the suits filed by Ross on behalf of Bahra and Whitehall alleging they were pressured to remain silent about what they knew of the abuse of children in the foster system and that when they did not they were retaliated against proceeded apace. Those lawsuits, emphasizing as they did the alleged failure of the Children and Family Services Department to step in and stem the abuse was of moment with higher ranking elements in the county because attorneys had already been in contact with the families of some of the abused children and had initiated cases on behalf of those children and their families or were in the process of doing so.
To District Attorney Ramos, who had striven to remain on favorable terms with both the county’s political establishment and its senior administrators, and to Dauber, who was until Ramos left office in January 2019 answerable to him, Wiebeld’s established status as a grand jury leader able to influence at least a handful of his colleagues on the panel heightened concern that they might be faced with a rogue grand jury that would take the focus on abused and dead children in a direction that could prove monetarily costly for the county. Similarly, the Bahra and Whitehall suits carried with them the threat of exposing the degree to which the county was placing a higher priority on insulating itself from liability with regard to the negligence, indolence or misjudgments of its employees within the Department of Children and Family Services than it was in ensuring the safety of the children that system existed to protect.
Wiebeld was suspected of being Fox 11’s source for its August 27, 2015 report and subsequent follow-ups. District Attorney Ramos accompanied Dauber and a single member of the grand jury to the office of Marsha Slough, who was then the presiding judge of the San Bernardino County Superior Court. Wiebeld, Slough was told, was proving disruptive. Slough subsequently summoned Wiebeld to her office. She informed him that he was an at-will volunteer and that his services were no longer needed.
After Wiebeld was bounced from the panel, Dauber, with some prevarication, told the remaining members of the grand jury that Wiebeld had voluntarily resigned his commission as a grand juror for personal reasons.
Before the grand jury’s term ended on June 30, 2016, six other members of the grand jury who had been sworn in on July 1, 2015 to serve a full year – Robert Turley, Benjamin Royland, Rebecca Fults, Allen Burt, Paul Gorsky and Douglas Kinzle – left, either voluntarily or as a result of having been shown the door. The mass exodus from the grand jury itself was telling: No grand jury in San Bernardino County going back at least to the 1970s had suffered anywhere approaching that number of defections. At last, when the grand jury delivered its final report for 2015-16, it provided a watered-down treatment of fact with regard to the circumstance in the Children and Family Services Department which raised some valid issues, but nonetheless avoided going too deeply into areas that would make public the very real issues relating to shortcomings and failures that led to the perpetuation of abuse and in some instances resulted in death. Such documentation would have opened the county, officials believed, to potential lawsuits from either the family members of the abused or dead children or the surviving children themselves who might be represented by an attorney.
The report noted that social workers with the department did not make a practice of “recording interviews with clients” because “Children and Family Services management was uniformly opposed to the idea of tape recording client interviews… their stated reason for this opposition [being] confidentiality and possible intimidation of the client.” The report stated that “interviews with CFS [Children and Family Services] management revealed that social workers who had observed a parent under the influence did ‘not necessarily’ notify law enforcement or remove the child from the home.”
The report further noted “areas of concern about the relationship between CFS and law enforcement agencies. Interviews with law enforcement officers disclosed areas that potentially hindered investigations. Law enforcement officers disclosed, and Children and Family Services management confirmed, that CFS reports requested by law enforcement are first sent to county counsel [i.e., the county’s in-house lawyers] for review prior to being released. Law enforcement officers stated that Children and Family Services social workers are reluctant to remove abused and neglected children from their homes. Officers further stated that CFS does not always inform investigating officers of the location of a child, which causes delays in investigations.” The report also stated that law enforcement investigators “informed the grand jury that receiving redacted reports from Children and Family Services hinders their investigations” and prevents law enforcement officers from making so-called pretext calls to parents or guardians suspected of sexually abusing children.
According to the report, there were delays in Children and Family Services’ response to the grand jury’s request for information, including one in which it took the department “a period of seven months and 23 days from the date the request was submitted” to provide the information sought.
The report stated, “In interviews with county counsel employees it was stated that CFS is focused on family unification, while county counsel would prefer the safety of the child to supersede family unification. Additionally it was reported by law enforcement officers that Children and Family Services is interested in keeping families together while law enforcement seeks to arrest perpetrators of child abuse.”
The report noted that there was a 15.5 percent rate of employee turnover in the Children and Family Services Department in 2013-14 and a 23.8 percent employee turnover in 2014-15, such that social workers were “overwhelmed” by heavy caseloads.
In the report there was no mention of the deaths of any children who fell under the rubric of the Children and Family Services Department system. Nor did the report make reference to reports received by the grand jury which indicated that social workers who had made an effort to bring incidents of the abuse of children to light had been actively discouraged from doing so.
Desperate to bring about the dismissal of the civil case brought by Ross on behalf of Whitehall alleging higher-ups in the Children and Family Services Department sought to keep the abuse scandal under wraps, the county unsuccessfully sought to have her suit dismissed, asserting Whitehall could not demonstrate a probability of prevailing because her supervisors had authority to dictate the operations of the Children and Family Services Department according to their judgment and were thus immune to her allegation relating their failure to protect children, and that Whitehall had not been subjected to an adverse employment action since she had been placed on paid rathaer than unpaid administrative leave. The county maintained that Whitehall was not eligible to sue because of the doctrine of “unclean hands,” that is, that she had engaged in untoward action of her own, in this case having failed to maintain strict confidentiality with regard to at least one of the cases to which she had been assigned. After the trial court in San Bernardino County denied the motion to dismiss the case, the county appealed that decision to the Fourth District Court of Appeal in Riverside, where a three-member panel of judges consisting of Presiding Judge Manuel Ramirez, and Justices Carol Codrington and Richard Fields unanimously upheld the trial court’s ruling to allow the trial to proceed.
Just a week prior to the release of the grand jury’s final 2015-16 report, after the scandal pertaining to the abuse of children lodged in San Bernardino County’s foster care system had been percolating for months, the California Attorney General’s Office announced it was looking into allegations of failure to act with regard to the abuse of children or criminal negligence by the Department of Children and Family Services.
Then-California Attorney General Kamala Harris at the time said she was on top of the situation in San Bernardino County. With her subsequent departure to the U.S. Senate in January 2017 following the November 2016 election, she has not responded to multiple inquiries from the Sentinel as to what information her investigation had unearthed and what action was to be taken or what measures were being employed to remedy the circumstance. There was no one within the office of current California Attorney General Xavier Becerra who was able to track what the outcome of Harris’s supervision of the inquiry into the matter had produced.
Bahra’s suit was scheduled to go to trial in May 2017, but just ahead of the trial, Bahra and the county were consigned to a mediation. At that point, while within the timeframe during which Bahra could yet do so, Bahra upon consultation with Ross decided to pursue the case in federal court. After filing in federal court, Ross made a motion to have the state court action dismissed.
Bahra’s case in federal court was assigned to U.S. District Court Judge Jesus Bernal in Riverside. The county and the Department of Children and Family Services filed a motion for summary judgment.
On May 18, 2018, Ross and the attorneys for the county, Susan Coleman, Kristina Gruenberg and Mitchell Wrosch, argued the issues with regard to the county’s summary judgment request, in particular Coleman’s, Gruenberg’s and Wrosch’s contention that Ross and Bahra had not followed the 1094.5 administrative procedure. Bernal took the matter under advisement. Just four days previously, on May 14, 2018, a panel of the Fourth District Court of Appeals had ruled in the case of Carl Taswell v. Regents of the University of California. The upshot of the Taswell ruling was that a governmental entity cannot preclude a whistleblower from proceeding with a legal action based on an administrative judgment having previously been entered in favor of the governmental entity against that whistleblower with regard to its having disciplined or fired the plaintiff for activity relating to his or her whistleblowing.
As the Taswell decision had not been entered until after the Ross’s Gruenberg’s, Wrosch’s and Coleman’s briefing on the summary judgment had been submitted, Judge Bernal did not consider it in rendering his opinion and the order in which he found that the civil service commission’s decision precluded Bahra from suing the county. Bernal held that Bahra in essence had his day in court when he was represented by counsel during the civil service commission hearing, had submitted evidence in his favor and had called and cross-examined witnesses.
“As measured by minimum due process, plaintiff received a full and fair opportunity to litigate his claim,” Bernal opined.
Ross, on behalf of Bahra, appealed that ruling to the U.S. Ninth Circuit Court of Appeals, where it was considered by a panel consisting of Judge Susan P. Graber, Judge Marsha S. Berzon, and Judge Morgan Christen.
Ultimately, in their consideration of the matter, Judges Graber, Berzon and Christen, since federal law looks to the law of the state for guidance in what standards are applied in such civil rights and employment cases, took notice of the implication of the Taswell decision, as it had been an applicable element of state law while Bernal was engaged in his evaluation of the county’s motion for summary judgment.
The panel, in a unanimous decision handed down on December 30, 2019 authored by Judge Graber, found that Bahra is entitled to bring retaliation claims against the county under the California Labor Code.
“In California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently ‘judicial character’ and that the elements of claim or issue preclusion are satisfied,” Judge Graber wrote in the 12-page opinion, “But courts will not afford preclusive effect to an administrative decision if doing so would contravene the intent of the California legislature. California courts do not give preclusive effect to the results of agency proceedings ‘if doing so is contrary to the intent of the legislative body that established the proceeding in which [preclusion] is urged.’”
Referencing the Taswell v. Regents of the University of California ruling, Judge Graber wrote, “The California Court of Appeal recently applied the legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. Accordingly, unless we are ‘convinced’ that the California Supreme Court would disagree with Taswell, we are bound by its holding.”
The Ninth Circuit Court decision clears the way for Bahra and Ross to move forward with Bahra’s suit, which holds the potential for putting on display the degree to which San Bernardino County employees within the Children and Family Services Department shied away from aggressively protecting children when they were confronted with indications that the guardians to whom the county had entrusted those children were or might have been abusing them.
Ross, who was assisted by attorney’s A. Cabral Bonner and Charles A. Bonner in her representation of Bahra, told the Sentinel, “We’re gratified that the Ninth Circuit agreed with our position on the law and we are looking forward to taking this matter to trial.”
A week after the Ninth Circuit Court’s ruling in Bahra’s case advancing what some perceived and others hoped would be an examination of the inadequacy of the protection afforded children in vulnerable circumstances in California, Southern California and San Bernardino County, a panel of the California Second District Court of Appeal in a split decision directed the Los Angeles Superior Court to dismiss child abuse/child endangerment and record falsification charges against Los Angeles County social workers Patricia Clement and Stefanie Rodriguez and their supervisors Kevin Bom and Gregory Merritt in the killing of Gabriel Fernandez.
“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) [child endangerment]. We further conclude that the petitioners were not officers within the meaning of Government Code Section 6200 [falsifying public records],” wrote Justice Francis Rothschild on behalf of himself and Justice Gregory Weingart.
Judges Rothschild and Weingart ruled that the two social workers and their supervisors had not abused young Fernandez in the sense that his mother, Pearl Sinthia Fernandez, and her live-in boyfriend, Isauro Aguirre, had.
Rothschild and Weingart further held that Rodriguez, Bom, Clement, and Merritt did not qualify as either elected or appointed officers, and as such could not be charged under Government Code Section 6200 relating to the falsification of records by a public officer.
Judge Rothschild wrote that “Clement and Merritt contend that they were not ‘officer[s]’ within the meaning of Government Code Section 6200. We agree. Government Code Section 6200 does not define the term, ‘officer.’  Courts have construed the term to mean one who holds a position ‘ “created by the Constitution or authorized by some statute” ’ and who is ‘ “clothed with a part of the sovereignty of the state to be exercised in the interest of the public.” ’ The California Constitution establishes three county officers—sheriff, the district attorney, and assessor—and the Legislature has enacted a list specifying ‘[t]he officers of a county.’”
According to Judge Rothschild, as employees of the Los Angeles County Department of Children and Family Services and not of the sheriff, district attorney or assessor, Rodriguez, Bom, Clement, and Merritt were neither officers nor their deputies. “Because the petitioners are not officers within the meaning of Government Code Section 6200 as a matter of law, the charges of violating that statute must be dismissed,” according to Judges Rothschild and Weingart.
Judges Rothschild’s and Weingart’s colleague on the Second District Court of Appeal panel, Judge Victoria Gerrard Chaney, concurred that because of precedent case law, Rodriguez, Bom, Clement, and Merritt could not be charged with nor convicted of child abuse or child endangerment per se. Nevertheless, she wrote, as social workers employed by the Children and Family Services Department, the social workers and their supervisors qualified as public officers whose failure to document the abuse which ultimately proved fatal to young Fernandez while they were functioning in the capacity of the custodians of those public records was tantamount to falsification.
Judge Chaney referenced the case of People v. Heitzman, in which charges of criminal neglect were dismissed against a daughter whose indifference to her ailing father’s condition ultimately led to the father’s death, which Judges Rothschild and Weingart in part relied upon as case law in making their ruling.
“I agree that People v. Heitzman precludes petitioners’ prosecution under Penal Code Section 273a,” Judge Chaney wrote in her concurring and dissenting opinion. “However, I view the application of Heitzman here as falling squarely within the category of unintended consequences Justice Baxter identified in his Heitzman dissent. The People have alleged facts that, if proven, would suffice to show that Rodriguez, Bom, Clement, and Merritt did not merely permit Gabriel’s mother and her boyfriend to murder Gabriel, they enabled it.  By abdicating their responsibilities and falsifying documents, these social workers prevented the system from working and prevented anyone else from rescuing Gabriel.”
The Second District Court of Appeal ruling directed the Los Angeles Superior Court to dismiss the pending charges against Rodriguez, Bom, Clement, and Merritt. Thus, it does not appear that the failures of a social workers to actively follow through to ensure that further investigation or preventative measures are taken when indications of the abuse of children manifest will likely result in future criminal prosecutions. Nevertheless, the ordeal endured by Rodriguez, Bom, Clement, and Merritt over the last three years will quite possibly serve as a hedge against social workers ignoring obvious signs of child abuse that they encounter in the field.
In November 2018, in an effort to protect 545 case workers employed within the San Bernardino County Children and Family Services Department, the union that now represents those workers, Service Employees International Union Local 721, officially entered into a so-called “side letter agreement” to the union’s memorandum of understanding relating to county workers’ pay, benefits and working conditions with the county that was intended to limit the workers’ case loads to prevent them from being inundated with cases that might overwhelm their ability to detect abuse of the sort that could put the children they are responsible for in danger.
On November 6, 2018, the San Bernardino County Board of Supervisors unanimously ratified the side letter agreement with a unanimous vote. San Bernardino County Chief Executive Officer Gary McBride, who participated in negotiating the side letter agreement with Service Employees International Union Local 721, told the board of supervisors, “The memorandum of understanding included the establishment of a children and family services labor management committee that is dedicated to increasing the overall number of case-carrying social service practitioners within the Children and Family Services Department, reducing the average level of cases and referrals assigned to the Children and Family Services social service practitioners, and assigning caseloads more equitably so that social service practitioners will not have significantly higher caseloads than other workers on the same type of assignment performing similar tasks.”
McBride asserted that the “side letter agreement will establish caseload management controls in an effort to equitably distribute caseloads. A quarterly caseload analysis will be used as a mechanism by which caseload inequities are identified, analyzed, and plans for reallocation of staff and/or cases are developed for implementation. In pursuit of this, staff and/or cases may be reassigned within and between offices and regions to achieve an equitable balance provided. However, there shall be no disruption of the services plan for the child. Further, the parties also agreed that management shall ensure that there is a system in place for monitoring each social service practitioner’s individual caseload and for assigning new cases to assure equitable distribution of cases in pursuit of caseload goals. In situations when caseloads exceed the caseload goals, the parties have developed a process by which to resolve the caseload distribution.”
Without anyone directly saying so, the effort toward limiting the social workers’ case loads was aimed at preventing them from being swamped with cases that might overtax their ability to detect abuse of the sort that could put the children they are responsible for in danger, and leave them and the county open to charges that children being looked after in their system are being neglected.
Ross is continuing to pursue Whitehall’s case in Superior Court. In her effort to provide as full of a rendering of the facts as is possible, Ross filed a motion in San Bernardino County Juvenile Court for the release of records to be used at trial in the Superior Court. After the Juvenile Court denied that motion, she took the matter up on a writ of mandate to the Fourth District Court of Appeal. The Fourth District Court of Appeal summarily denied the writ of mandate, providing no reason for doing so. Ross than took it up to the California Supreme Court for review and the California Supreme Court granted her petition and sent it back to the Court of Appeal with instructions that the county was required to file a brief, referred to in legal parlance as a return, and Ross would have until January 13 to file her opposing response, called a traverse. The Fourth District of Court of Appeal is to then make a final determination as to whether the documentation provided to the juvenile court with regard to the situation in the foster home which had originally raised Bahra’s concern for the welfare of the surviving children and which then triggered Whitehall’s reaction to back him in the effort to bring those conditions to the attention of the juvenile court should be released so it can be considered by the trial court. Once that determination is made, there appear to be no further obstructions to Whitehall’s case proceeding to trial.