Gabriel Fernandez

LOS ANGELES (CNS) — A three-justice panel of the 2nd District Court of Appeal has issued an opinion directing a lower court to dismiss child abuse and other charges against four social workers in the killing of 8-year-old Gabriel Fernandez. 

In an 2-1 opinion, the panel concluded that there was no probable cause to hold the two social workers and their supervisors on charges of child abuse and falsifying documents.

“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,” wrote Justice Francis Rothschild.

“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,” the opinion continued.

Social workers Stefanie Rodriguez, 34, and Patricia Clement, 69, were charged along with two supervisors, Kevin Bom, 40, and Gregory Merritt, 64, with one felony count each of child abuse and falsifying public records. The filing followed the Palmdale boy’s death in May 2013 from a beating by his mother’s boyfriend and reports of months of torture prior to that.

The boy was left in his mother’s custody despite repeated reports of abuse, including by Gabriel’s teacher, and follow-up visits by the social workers to the family home.

Justice Victoria Gerrard Chaney concurred that the four could not be charged with child abuse, but wrote a dissent arguing that they could be prosecuted as public officers under the relevant government code section.

“Allowing a social worker to evade liability for falsifying a public document would incentivize social workers to put their own interests in avoiding liability for their misdeeds above the purpose of the state’s child welfare statutory scheme, which is child safety,” Chaney wrote in her concurring and dissenting opinion.

“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.”

Prosecutors argued that only Merritt and Clement asserted that they were not officers, but the panel chose to apply the same standard to all four defendants, arguing that there was no reason to apply the law differently.

In September 2018, Superior Court Judge George G. Lomeli denied a motion to dismiss the charges, calling the young Palmdale boy’s death “foreseeable.”

An autopsy showed that Gabriel had a fractured skull, several broken ribs and burns over much of his body. His teacher testified that she called Rodriguez multiple times to report that Gabriel told her that his mother punched him and shot him in the face with a BB gun.

Various defense attorneys argued that the abuse and torture escalated months after a file on the boy had been closed and that there was insufficient evidence to take him away from his mother.

Lomeli also presided over the trial of Fernandez’s killers, his mother and her boyfriend. In June 2018, Lomeli sentenced Isauro Aguirre to death for the boy’s first-degree murder and a special circumstance allegation of murder involving torture. Pearl Sinthia Fernandez was sentenced to life in prison without parole after pleading to first-degree murder and admitting the torture allegation.

Lomeli called the pair “nothing short of evil” and worse than animalistic “because even animals know how to take care of their young.”

The social workers case is set to be heard Jan. 14 in Lomeli’s court.

The District Attorney’s Office was unable to respond to an earlier request for information, and it was not immediately clear whether prosecutors intend to appeal the appellate court decision or refile the case.