State auditor will scrutinize Child Protective Services

child protective services capitol rally 3June 6, 2013

By Katy Grimes

SACRAMENTO — It’s audit time for Child Protective Services, part of the California Department of Social Services. A protest rally by 100 people at the Capitol Wednesday morning charged the agency with both abusing its powers and neglecting real cases of child abuse. I took the nearby picture at the rally. Later that day the Joint Legislative Audit Committee of the California Legislature held hearings  on CPS.

Assemblyman Tim Donnelly, R-Hesperia, and Assemblyman Mike Gatto, D-Los Angeles, made the bipartisan, formal audit request to the committee.  The CPS operates largely in secrecy under the protection of the state courts.

The children

Protesters highlighted the fate of eight-year-old Gabriel Fernandez from Lancaster. As the Daily News reported May 28:


“A Palmdale couple were charged on Tuesday with capital murder in the beating of the woman’s 8-year-old son, who died last week.

“Pearl Sinthia Fernandez, 29, and her boyfriend, Isauro Aguirre, 32, were ordered to be held without bail while they await arraignment June 11 in Lancaster Superior Court.

“The murder charge includes the special circumstance allegation of murder during the commission of torture. The District Attorney’s Office will decide later whether to seek the death penalty against the pair.”

Aguirre allegedly cracked Gabriel’s skull, broke three of his ribs, knocked out two teeth, bruised and burned the boy’s skin and shot BB pellets into him.

Pearl Fernandez, Gabriel’s mother, reportedly told police she saw the beating but did nothing to stop it. Gabriel Fernandez died two days later in the hospital.

At the committee hearing, which I attended, Gatto called the boy’s death “horrifying” and the CPS’s actions “unacceptable.” But this was not a fluke. There had been six previous complaints with CPS about the abuse of the boy, and six separate investigations into the abuse of Gabriel in his mother’s home. Yet CPS social workers did not intervene. The sixth investigation was still open on the day of Gabriel’s death in May.


Another case taken up at the hearing is a gross example not of neglect of real abuse, but of CPS overreach. Last week I wrote a story on our site, “Sacramento family fights seizure of child by CPS,” about Alex and Anna Nikolayev and their baby, Sammy, 5 months old.


At the hearing, Anna Nikolayev testified she tried to leave Sacramento’s Sutter Memorial Hospital and take Sammy to another hospital for a second opinion, when she was threatened with a call to the CPS. Sammy was born with a heart murmur.

After a nurse at Sutter Memorial tried to give Sammy medicine that a doctor later explained should not have been administered, Anna became nervous about the quality of Sammy’s care. She said she wanted a second opinion from another doctor.

Nikolayev said she felt the doctors and nurses were “pressing us to do surgery.” She was told by the hospital workers, “You are free to leave this hospital, but your baby is not.” The hospital refused to discharge Sammy, then notified the CPS.

Anna told the committee that she took Sammy from Sutter Memorial and went directly to Kaiser Hospital. She met with a doctor there who said Sammy was healthy, did not need immediate open heart surgery, and was free to go home.

The next day, CPS and the police showed up at the family’s home, claimed they had a warrant and the authority to take Sammy. Anna asked to see the warrant, but the authorities wouldn’t show it to her.  Anna said they told her, “We’re the police. We don’t need a warrant.”

As Alex Nikolayev arrived at home, several police officers pulled him out of his car and “beat him up,” according to Anna. After taking Alex’s keys, the police charged into the Nikolayev home, then took baby Sammy from his mother.

“Give me your son,” Anna said the police ordered her at gunpoint. The police and CPS told her not to resist or fight back.

“Is that not kidnapping?” Anna Nikolayev asked the legislative committee. Her baby was returned to her after three days.

One more audit 

This would not be the first audit of CPS. State Auditor Elaine Howle told the committee that her agency recently audited four CPS offices around the state, in Sacramento, Alameda, Los Angeles and Orange counties.

However, Howle said her agency is equipped to handle audits of three more county offices of CPS. Once underway, the audits are expected to take five to six months. Once completed, the information compiled from the new audits, and the four audits last year, will be compiled into an overall report.

Howle said the audits will examine and scrutinize the protocols CPS uses in deciding the severity of cases, and when a child should be removed from a home.

Follow the money

At the rally and during the hearing, many who testified said CPS is an agency driven by funding, financially incentivizing the wrong actions. The more abuse that’s alleged, the higher the funding for the CPS bureaucracy.

Howle explained her audits would look at the policies and practices in each of the three local offices, and how they reach their decisions. “We also will look at the funding, relative to when law enforcement is involved,” she said.

Lisa Snell, the director of Education and Child Welfare for the Los Angeles-based Reason Foundation, a libertarian think tank, testified the state needs to change the funding incentives for the CPS. “There’s a lot of evidence that when you change the funding incentives, the number of children removed from homes decreases,” Snell said.

“The motive is funding,” Deanna Fogarty (pictured nearby) testified of her own experience. Fogarty’s two daughters were taken from her by Orange County CPS and were gone for six years. However, Fogarty sued the county and got her kids back. The jury found that two social workers lied to take Fogarty’s daughters away. She was awarded $10.6 million in compensation. The case was appealed all the way to the U.S. Supreme Court, which in 2011 declined to hear the case, thus upholding the original jury decision.


“This audit is long overdue as was proven by the powerful testimonies shared at the morning rally and in the hearing,” Donnelly told me after the hearing. “California owes a debt of gratitude to the hundreds of citizens who called their representative, spoke out and raised awareness about this audit hearing today.”

Two women told me stories of having CPS show up at their homes after they had taken a child to the hospital for falling and getting hurt. During the CPS visits, the mothers said, things went very wrong, and the mothers were accused of harming their children. Then the police showed up and took their kids away.

One African-American women testified at the hearing to a similar situation. She had two strokes that debilitated her, and while in skilled nursing her white friend and neighbor took care of her children. CPS got involved, and the social worker asked her how and why she could leave her children with the white woman. Her children also were taken away from her while she was recuperating from the strokes.

Donnelly told me, “Stories like that of the Nikolayev family, who had their fragile baby ripped from their arms for no reason, and stories like that of Gabriel Fernandez, who was tortured and beaten to death, show the unbelievable dysfunction and inconsistency within CPS. It is time for a massive change and I am very excited to see this soon-to-be eye opening audit move forward.

“This is a huge win for the many families who have been victimized by Child Protective Services throughout the years and it is a ray of hope showing that we can achieve system wide reform and accountability soon.”

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