Bittersweet Justice: San Bernardino County

Occasionally there is justice for those negatively affected by the child welfare and adoption systems. Unfortunately, it is usually bittersweet and much too late. This will serve as REFORM Talk’s justice files.

From San Bernardino County, California, San Bernardino county  has “agreed to pay $7.8 million to settle a lawsuit alleging the county foster care system did not protect a boy from sexual and physical abuse by his older brother, who was placed with him in a foster home, despite officials knowing about previous abuse.

“There were prior issues with the older child who was abusing my client,” said attorney Eric Rossman, of the Idaho-based Rossman Law Group, which represented foster parents William and Michelle Mueller, who eventually adopted the younger boy. “They protected other kids from the older kid, but they didn’t protect this child.”

“The county agreed to resolve litigation filed by the child and the adoptive parents,” San Bernardino County spokesman David Wert wrote in an email. “While the county has not admitted any liability in this matter, when deciding to resolve litigation the county considers the effects of protracted litigation on children and families. The county considers the resolution to be consistent with the well-being of all parties.”

While in foster care, the boy — identified as “E.M.” in court filings — was physically and sexually abused by his older brother, identified as “C.T.”

The county knew of the boys’ prior history of sexual abuse, according to Rossman, but did not disclose it to the Muellers when the boys were placed in their home in 2016.

Before they were sent to live with the Muellers, C.T. had reportedly been “forced to watch pornography” by his biological parents and had been removed from a previous foster home after he was caught exposing himself repeatedly to other young children. He also reportedly had a 7-year-old girl touch him inappropriately when he was in elementary school. C.T. had been referred to a special intervention program as a result.

But the two boys were kept together in future foster placements.

“On the one side, you want to keep siblings together when possible. But on the other hand, when you see inappropriate sexual behavior by the older child, you not only want to protect other children, but you also need to protect the younger child as well,” Rossman said.

According to the lawsuit, former San Bernardino County Child and Family Services social worker Deborah Kay did not properly supervise the boys’ cases, letting them remain in close contact with each other and did not interview them separately about their status.

Kay disputes much of Rossman’s version of events. She and the department didn’t know anything about the older boy abusing his younger brother, she said in a Sept. 6 interview.

“We didn’t know everything, at all,” said Kay, who retired in 2019. “And the little guy said ‘I wasn’t going to tell you anything until the adoption was through.’ “

The lawsuit also alleges Kay did not monitor E.M.’s physical condition, despite him being reportedly covered in bruises, nor did she recommend or attempt to get E.M. counseling when the boy acted out sexually, including repeatedly exposing himself on the school bus, or after two times in 2016 where the then-7-year-old boy expressed a desire to kill himself.

Kay said she does not recall hearing about E.M.’s suicidal thoughts or exposing himself on the school bus. The incidents alleged in the lawsuit about C.T.’s behavior were before her time on the case, she said.

C.T. “had gone through a program and was doing so, so well,” Kay said. According to her, C.T.’s progress had been monitored by mental health professionals. “In spite of what he had been through, he appeared to be doing very well.”

E.M. said he told Kay that C.T. was physically and sexually abusing him, according to the lawsuit. But Kay did not report the abuse, despite being required to do so by California law, as a mandated reporter, the suit alleges. The abuse reportedly continued through March 2017.

“There were numerous red flags that were coming up with (the department’s) visits with the children, such as excessive bruising, acting out and other things that a social worker should be conscious of,” Rossman said. “He said he told Deborah Kay and she discouraged him from communicating it.”

Kay denied knowing about the sexual abuse and said the bruises were concealed under clothing and she never saw them.

“I didn’t even know he had any bruises. We don’t remove their clothing at our monthly visits, but Mrs. Mueller knew,” Kay said. “She asked (the doctor) about it and he said some of these meds (E.M. was taking) can cause bruising in children.”

According to the lawsuit, Kay also reportedly concealed C.T.’s prior history when the Muellers were considering adopting the boys and told E.M. to keep the sexual abuse a secret so it wouldn’t prevent the couple from adopting him.

“No, no way,” would she ever tell a child to keep abuse a secret, Kay said. “If they told me things, we would start an investigation for sure.”

The Muellers adopted both boys, but after E.M. told them about the abuse he had suffered at C.T.’s hands, the Muellers did not proceed with adopting the older boy.

“It’s a very sad situation,” Kay said. “It’s such a sad case … on everybody’s part.”

The problem goes further than just one social worker, according to Rossman. At the time of the incidents, San Bernardino County did not require foster children to be interviewed privately, away from one another, although state law and the county handbook for social workers require monthly private and separate conversations for each foster child.

“There’s just a systemic problem in San Bernardino County,” Rossman said. “They were not adequately training and supervising the social workers.”

Both Kay and Wert dispute the criticisms.

“Children and Family Services policy is consistent with applicable laws and other regulations, and always has been,” Wert wrote in an email. “CFS continues to hire staff at all levels on a continuous basis.”

According to Kay, she interviewed the boys separately and E.M. “never ever” told her about the abuse, despite “numerous opportunities” to tell her.

This is not the first time allegations have been leveled against the county’s Department of Children and Family Services.

A 2016 San Bernardino County Grand Jury report found the department failed to accurately document cases, overloaded social workers with too many cases and failed to provide complete information to police investigating child abuse.

In July 2021, a jury awarded former San Bernardino County Child and Family Services social worker Eric Bahra $2.5 million after he was retaliated against when he raised concerns about county staff intentionally keeping children’s former sexual activity from prospective foster parents.

The Muellers ended up adopting E.M. in 2017, according to Rossman.

“For the first time in his life, he has good parents, wonderful parents,” he said. “And they’re doing everything they can to take care of him, but the psychological impact has been significant.”

But the boys have been separated, which Kay says E.M. fought hard to prevent.

“The little one had a hard, hard time with the separation, just as he knew would happen and it did,” Kay said. “He’s struggling now, because of this.””

San Bernardino County settles foster child sexual abuse case for $7.8 million
[San Bernardino Sun 9/2/22 by BEAU YARBROUGH ]