A California appeals court has denied a request by the Los Angeles County District Attorney to reconsider dismissing charges against the social workers overseeing the case of Gabriel Fernandez, an 8-year-old Antelope Valley boy who was tortured and killed by his mother and her boyfriend in 2013.
On Jan. 6, the California 2nd District Court of Appeals threw out the cases against Los Angeles County Department of Children and Family Services (DCFS) social workers Stefanie Rodriguez and Patricia Clement, and supervisors Kevin Bom and Gregory Merritt, who in March 2016 were charged in the Los Angeles Superior Court with felony child abuse and falsifying public records.
The social workers were charged under a child abuse statute that makes anyone liable who “willfully causes or permits a child to suffer.” The three appellate judges in their ruling wrote that the social workers did not have control over Gabriel’s abusers, and therefore did not have legal liability to stop it.
In its petition for the appellate decision to be reconsidered, the district attorney’s office argued that the social workers had both the duty and the ability to control the abusers by removing Gabriel from their custody given the evidence that he was at high risk for harm in their care.
“If petitioners weren’t supposed to protect Gabriel from his killers, who was?” the DA petition questions.
The DA’s office declined to comment for this article, and would not indicate whether or not they would ask the California Supreme Court to hear the case.
In May 2013, Gabriel arrived unresponsive in an emergency room with “open skull fractures, multiple other fractures, a broken nose, missing teeth, burns … internal injuries … and swollen lesions throughout his body with embedded metal BB pellets.” Gabriel’s mother, Pearl Fernandez, had been known to the system since a DCFS investigation in 2003.
In the months leading up to Gabriel’s death, the family was subject to multiple visits by DCFS social workers in response to calls from Gabriel’s teacher reporting stories of abuse he shared with her and visible signs of trauma on his face and body. But during this time, the child was never removed from the home Pearl shared with her boyfriend, Isauro Aguirre. Instead, DCFS provided family preservation services and a case plan that included counseling for Pearl and twice monthly contact with a social worker.
Pearl Fernandez has been sentenced to life in prison without the possibility of parole for the boy’s murder. Aguirre has been sentenced to death.
In September 2018, Los Angeles County Superior Court Judge George G. Lomeli denied a motion to dismiss charges against the four, all of whom were fired from DCFS after an internal investigation into the Gabriel’s death. Lomeli said that DCFS had not properly documented the abuse done to Gabriel, or his mother’s refusal to accept counseling.
The appellate court panel disagreed that the social workers’ actions amounted to child abuse or falsification of records.
“Imposing criminal liability on a social worker for making discretionary decisions, when the best solution is not always obvious, would create an incentive for the social worker to focus more on his or her own liability rather than on the best interest of the child,” the opinion reads.
Associate Justice Victoria Gerrard Chaney wrote a dissenting opinion in which she argued that the social workers’ actions had impeded the systems’ ability to protect and that dismissing the charges set a concerning precedent.
Court documents show that at one point, when a risk assessment of the family ranked a “high” risk of future abuse or neglect, DCFS supervisor Merritt downgraded the assessment to “moderate” in order to close the case.
“The petitioners’ actions here prevented the system from working in whatever way it might have had they done their jobs honestly, and offers no incentive for either DCFS or individual social workers to work to reform and repair the parts of the system that may fail the children it is intended to protect,” Chaney wrote.
“We have, in effect, encouraged DCFS and its social workers to cover their tracks if they stumble on the cracks in the system,” she wrote.