Judge Curtis A. Kin, Case Number: 22STCP01398, Date: 2025-04-01 Tentative Ruling

24STCP02299 Luchia Tsegaberhan
The Petition will be granted. A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Petitioner Marlene Blake petitions for a writ of mandate directing Respondent County of Los Angeles (“County”) to remove her name from California’s Child Abuse Central Index (“CACI”). For the reasons that follow, the petition is DENIED.

Petitioner is the grandmother of minor child I.M, whom the County alleges petitioner sexually abused in 2011.

On July 28, 2011, a hotline administered by the County’s Department of Child and Family Services (“DCFS” or “the Department”) generated a referral reporting that petitioner and petitioner’s daughter (I.M.’s birth mother) had sexually abused I.M., who at the time was four years and eight months old. (AR 28, 119-20.) A DCFS social worker, Janet Marcovitch, investigated and determined that, based on changes in I.M.’s behavior, I.M.’s father and primary custodian reported his suspicions to the hotline that I.M.’s mother and petitioner had been undressing I.M. and taking pictures of themselves touching her genitals. (AR 19, 29-30.) I.M. had reported the abuse both to her father’s girlfriend on July 19, 2011, and to I.M.’s former foster mother. (AR 19, 29-30.)

Marcovitch spoke with I.M., I.M.’s father, the girlfriend of I.M.’s father, and the roommate of I.M.’s father, and determined that I.M. was exhibiting numerous signs that she had been the victim of sexual abuse after returning from unsupervised visits with petitioner’s daughter, at which Petitioner was also present. (AR 31.) Marcovitch contacted the Lakewood Sheriff’s Department. (AR 31.) A Deputy Salles conducted an investigation, including an interview of I.M. in the presence of Marcovitch. (AR 31-32.) Deputy Salles also interviewed I.M.’s father and the father’s girlfriend. (AR 31-32.) Deputy Salles conferred with the Sheriff’s Special Victims Unit, which recommended that Marcovitch not interview I.M.’s alleged abusers (i.e., petitioner or her daughter) until after the Sheriff’s Department made contact with them. (AR 32.)

Previously, petitioner had been cited or suspected by DCFS of child cruelty in 1999 and of emotionally abusing I.M. in 2007. (AR 12.) Petitioner’s visits with I.M. had been terminated on that basis in 2009. (AR 28.)

Marcovitch concluded that petitioner had sexually abused and exploited I.M. (AR 32.) Marcovitch thus placed I.M. in protective custody. (AR 32.)

On August 2, 2011, the County notified petitioner that it had referred her name to the Department of Justice (“DOJ”) for listing on CACI. (AR 43.) The DOJ Notice of Child Abuse Central Index Listing sent to petitioner identifies her CACI listing as based on “Sexual Abuse, Exploitation.” (AR 6.)

On August 3, 2011, the juvenile dependency court conducted a detention hearing regarding the allegations against petitioner’s daughter. (AR 25.) The County prepared and submitted a Detention Report to the dependency court. (AR 25, 38.)

On August 8, 2011, petitioner requested a grievance hearing to dispute her CACI listing. (AR 7.) On August 25, 2011, the County denied petitioner’s request due to the pending dependency proceedings. (AR 2-3, 208.)

Petitioner was never arrested for, charged with, or interviewed by law enforcement about any child pornography or child sexual abuse allegations. (AR 203.) On September 6, 2011, law enforcement had searched petitioner’s home and seized all technology that could store digital images, keeping such items for approximately thirteen months. . (AR 67-68, 202.) Law enforcement found nothing incriminating on the devices. (AR 62-66, 203.)

On or about April 27, 2020, Petitioner renewed her request for a grievance hearing. (AR 2.) On March 23, 2021, and April 5, 2021, hearing officer Ada Escobar and Chief Grievance Review Officer Michael Watrobsky (the “Panel”) presided over the hearing reviewing Petitioner’s CACI listing. (AR 107-08.)

During the hearing, Marcovitch testified consistently with her investigation and findings from 2011. (AR 119-24.)

Petitioner testified on her own behalf. She testified that, at the time of her citation by DCFS in 2011, she and her daughter had suspected that I.M.’s father or his girlfriend had physically abused I.M. (AR 193-96.) Petitioner claimed that she and her daughter often observed “marks, bruises, or blisters on [I.M.’s] body.” (AR 193-94.) According to petitioner, they consulted with police, who advised them to document I.M.’s injuries. (AR 195-196.) Petitioner and her daughter photographed the injuries with I.M’s consent while I.M. was partially clothed, intending to introduce the photographs as evidence in family court. (AR 196-200.) Petitioner insisted that neither she nor her daughter ever sexually abused I.M., either by photographing her unclothed or inappropriately touching her. (AR 168-69, 199-202.)

During her testimony, Petitioner detailed the contentious relationship that she and her daughter had with I.M.’s father, including their arguments over I.M.’s care and the repeated police reports by I.M.’s birth mother regarding the conduct of I.M.’s father. (AR 19, 194, 189-90, 201.) Petitioner explained that I.M.’s father made his report to the DCFS hotline shortly after petitioner’s daugther petitioned the family court to modify I.M’s custody order to allow Petitioner to spend more time with her. (AR 189-90.) The sexual abuse investigation precluded the hearing on Petitioner’s petition to the family court. (AR 189-90.) Petitioner has not seen I.M. since 2011. (AR 189-90.)

Dr. Veronica Thomas also testified regarding a psychological evaluation she performed on petitioner. (AR 171.) Dr. Thomas testified that petitioner did not fit the profile of a sexual predator and that the allegations against petitioner and her daughter did not conform to usual patterns of sexual abuse. (AR 160, 162.) Dr. Thomas recognized that petitioner abused drugs around the time of I.M.’s allegations but testified that drug abuse does not generally correlate with sexual deviancy. (AR 165-66, 170.)

Jesse Whitaker also testified. Whitaker had been in a relationship with petitioner in 2011 and stated that he was frequently at petitioner’s house while I.M. was there. (AR 176, 178, 180, 192.) Whitaker testified that he never saw I.M. abused and that he did not see I.M., petitioner, or petitioner’s daughter behave in a manner that suggested the occurrence of abuse. (AR 182-83.)

The Panel found that I.M. “gave consistent, detailed accounts of what happened to multiple collaterals and professionals, including LASD, and at least two DCFS CSWs, where she repeatedly stated that both her mother and [petitioner] sexually abused her.” (AR 104.) In addition, the Panel noted that “the Juvenile Dependency Court held a trial over several days that included the testimony of DCFS, [I.M.], Deputy Salles, and [another detective,” which “resulted in a sustained petition” and determination “that the allegations of sexual abuse by [petitioner] to be true” based on evidence “similar to the evidence presented by DCFS in this matter.” (AR 104.)

The Panel thus determined there was sufficient evidence that petitioner “sexually abused [I.M.], pursuant to the reporting requirements of the California Penal Code Child Abuse and Neglect Reporting Act,” finding that “the evidence submitted shows that it was more likely than not that [petitioner] sexually abused [I.M.].” (AR 103.) The Panel noted that petitioner “did not provide additional information that would determine that she did not sexually abuse [I.M.], or refute any parts of [I.M.]’s consistent disclosure that [petitioner] sexually abused her.” (AR 103-04.) Accordingly, the Panel recommended that “there be no modification to the substantiated allegation of sexual abuse previously reported to the DOJ, and the identifying information of [petitioner] remain as placed in the DOJ CACI Database. (AR 105.)

The Director of DCFS adopted the Panel’s recommendation in its entirety. (AR 106.)

On April 18, 2022, petitioner filed a verified Petition for Writ of Mandate. On February 3, 2025, petitioner filed her opening brief in support of her petition. Respondent County filed its opposition on March 3, 2025. On March 11, 2025, petitioner filed her reply. A copy of the administrative record was lodged with the Court in electronic form on March 14, 2025.

The Superior Court may issue a writ of mandate “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer[.]” (CCP § 1094.5(a).) Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The Court exercises its independent judgment in determining whether an agency appropriately determined that someone should be placed on the CACI. (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 928; see also Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 84.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.)

The Department of Justice maintains the CACI database pursuant to the Child Abuse and Neglect Reporting Act (“CANRA”), Penal Code section 11164, et seq. CANRA requires certain agencies, including county welfare agencies like DCFS, to “forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse or severe neglect that is determined to be substantiated, [with limited exceptions].” (Pen. Code § 11169(a).) “An agency shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report is substantiated.” (Pen. Code § 11169(a).)

“‘Substantiated report’ means a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred. . . . .” (Pen. Code § 1165.12(b).) “As used in [the CANRA], the term ‘child abuse or neglect’ includes . . . sexual abuse as defined in Section 11165.1 . . . .” (Pen. Code § 11165.6.)

“[A]ny person who is listed on the CACI has the right to a hearing before the agency that requested his or her inclusion in the CACI to challenge his or her listing on the CACI. The hearing shall satisfy due process requirements.” (Pen. Code § 11169(d).) “If, after a hearing pursuant to subdivision (d) or a court proceeding [regarding the abuse allegations], it is determined the person's CACI listing was based on a report that was not substantiated, the agency shall notify the Department of Justice of that result and the department shall remove that person's name from the CACI.” (Pen. Code § 11169(h).)

Here, petitioner argues she is entitled to an order directing her removal from the CACI on six bases, which the Court consolidates to four for ease of analysis. First, petitioner argues the Panel’s findings are not supported by the evidence adduced at the hearing and that the Department’s Order is not supported by the Panel’s findings. (Opening Br. at 13.) Second, Petitioner argues respondent gave her deficient notice that it intended to list her on the CACI, thereby depriving her of due process. (Opening Br. at 14-16.) Third, petitioner argues respondent denied her a fair hearing because it denied her the opportunity to cross-examine witnesses and relied on evidence from the juvenile dependency court proceedings not produced to petitioner. (Opening Br. at 17-18.) Fourth, petitioner argues respondent violated relevant regulations by impermissibly delaying her grievance hearing. (Opening Br. at 18.)

Petitioner criticizes the Panel’s findings of petitioner’s substantiated sexual abuse of I.M., arguing that the Panel based such findings primarily on the fact that I.M. reported her story to multiple people and that the juvenile dependency court also found that petitioner sexually abused I.M. Further, petitioner argues this Court should give no weight to the Panel’s determination that I.M. was credible because I.M. did not testify at the hearing, which would have afforded the Panel the opportunity to assess her demeanor, manner, and attitude.

Separate and apart from whatever the juvenile dependency court may have found concerning petitioner’s sexual abuse of I.M., this Court, in its independent judgment, finds the evidence before the Panel at the grievance hearing supports the finding that petitioner sexually abused I.M. That finding is not based simply on the fact that I.M. recounted the sexual abuse to multiple parties. Rather, I.M.’s account was credible proof of petitioner’s sexually abusive conduct because I.M. consistently provided the same account to multiple persons on several occasions (including to the social worker, Los Angeles County Sheriff’s Department detectives, her father’s girlfriend, and her previous foster mother) that petitioner undressed her, laid her on the coach, touched her vagina, and took pictures. (See AR 120, 123.)

While it is true that I.M. did not testify before the Panel and that the Panel thus could not assess her credibility in person, the evidence before the Panel indicated I.M.’s reports to others were reliable. In addition to the consistency and similarity of I.M.’s multiple accounts, the undisputed evidence was that I.M. was bright and articulate for her age, that she understood and could explain the difference between the truth and a lie, and that she promised to tell the truth to the social worker. (AR 120, 123.) Further, while it may be true that physical corroborating evidence may be lacking (e.g., the physical exam of I.M. yielded no findings and no nude photos of I.M. were located on petitioner’s electronic devices (AR 75, 202-03)), the absence of additional corroborating evidence does not render I.M.’s account of petitioner’s conduct insubstantial or insufficient where, as here, there is good reason to find it reliable, as discussed above.

For the foregoing reasons, in the Court’s independent judgment, the evidence adduced at Petitioner’s hearing supported the Panel’s finding that the allegations of sexual abuse against her were substantiated.[1]

“At the time an agency . . . forwards a report [of child abuse] in writing to the Department of Justice . . . , the agency shall also notify in writing the known or suspected child abuser that he or she has been reported to the Child Abuse Central Index (CACI). The notice required . . . shall be in a form approved by the Department of Justice.” (Pen. Code § 11169(c).) Petitioner argues the notice she received was deficient, as it purportedly did not provide her with sufficient notice for due process purposes. (Opening Br. at 14.) The Court disagrees.

“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner. Consequently, due process is a flexible concept, as the characteristic of elasticity is required in order to tailor the process to the particular need.” (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1072.)

The DOJ Notice sent to petitioner informed her that she had been accused of “Sexual Abuse, Exploitation” and provided petitioner with I.M.’s full name, the location where the abuse was alleged to have occurred, and when it was alleged to have occurred (during I.M.’s weekend visits). (AR 43.) The Notice also explained petitioner could request and “inspect all records and evidence related to the investigation” of the alleged abuse and provided her with contact information for how to obtain such evidence. (AR 43.) The DOJ Notice here gave petitioner a meaningful opportunity to be heard in a meaningful manner. While use of the term “Sexual Abuse, Exploitation” might arguably be generic concerning the accusation, the use of that term did not render the notice fatally deficient, particularly when petitioner was given the victim’s name and details concerning when and where the alleged sexual abuse or exploitation occurred. Furthermore, the Notice informed petitioner that she could obtain the records and evidence relating to the accusation and told her how to do so. This was sufficient to satisfy due process.

Petitioner notes the absence of any case law concerning the sufficiency of notice for a CACI hearing and invites this Court to consider cases in which the notice provided was insufficient in other contexts, specifically Do v. Department of Housing & Urban Development (Fed. Cir. 2019) 913 F.3d 1089, and Rodgers v. State Personnel Board (2022) 83 Cal.App.5th 1.[2] These cases are inapposite. In Do, the court determined that the Merit Systems Protection Board had violated the due process rights of a HUD employee when it reviewed her for discipline on one ground and then disciplined her on another after finding the initial ground insufficient. (Do, 913 F.3d at 1092.) Here, by contrast, Petitioner was informed in the DOJ Notice that the acts of abuse or neglect against her were “Sexual Assault, Exploitation,” which is precisely what the Panel determined petitioner did. (Compare AR 40 [Notice] with AR 103-05 [Panel’s findings].) Similarly, in Rodgers, the court found that, where a Sheriff’s deputy was cited for “‘a linked set of events as the singular ground constituting the cause for discipline,’” the State Personnel Board violated his right to notice when they disciplined him despite finding some of the linked events unsubstantiated. (Rodgers, 83 Cal.App.5th at 11.) Here, petitioner was accused of “Sexual Assault, Exploitation,” which the Panel found to be substantiated, making no findings that any allegation was unsubstantiated.

The law does not vest Petitioner with an absolute right to cross-examine witnesses against her in an administrative proceeding—particularly when the witness is the alleged victim of sexual abuse or assault. (See Boermeester v. Carry (2023) 15 Cal.5th 72, 93 [no right to cross-examine sexual assault accuser in university administrative proceedings].) “There is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies.” (Ibid.) “[F]air procedure does not compel formal proceedings with all the embellishments of a court trial.” Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555.)

Petitioner’s complaint that she had no opportunity to cross-examine her alleged victim does not render her grievance hearing unfair.

Petitioner also contends that the Panel “quoted and relied upon the alleged true finding of the dependency court” that Petitioner sexually abused I.M. (Opening Br. at 17.) She contends the dependency court’s findings were not in evidence and were not revealed to her prior to her hearing. Thus, argues petitioner, the Panel’s reliance on such findings deprived her of a fair hearing.

Respondent does not directly address the contention of whether the Panel considered the dependency court’s findings and instead reiterates that the Panel based their findings on the evidence adduced at the hearing. (See Opp. Br. at 13.)

Even if it were true that the Panel impermissibly considered the dependency court’s findings, in order to prevail on her argument that she was deprived of a fair hearing, petitioner must show that the Panel’s doing so wrought a “fundamental unfairness” on the administrative proceedings that effectively denied petitioner of her right to be heard. (Sieg v. Fogt (2020) 55 Cal.App.5th 77, 84.) Such fundamental unfairness is not present here. To begin with, the hearsay nature of the dependency court’s findings would not render them per se unfair or inadmissible. (See Boermeester, 15 Cal.5th at 93 [no right to cross-examination].) More to the point, the Panel was clear that it based its decision on the fact that I.M. “gave consistent, detailed accounts of what happened to multiple collaterals and professionals” during which I.M. “repeatedly stated that both her mother and [petitioner] sexually abused her.” (AR 104.) After making that finding, the Panel also noted that they also “cannot ignore” that the Juvenile Dependency Court also came to the same conclusion after a multi-day trial with evidence “similar to the evidence presented by DCFS in this matter.” (AR 104.)

Where, as here, the purportedly impermissible consideration of evidence from the Juvenile Dependency Court merely confirmed the decision reached by the Panel based on the grievance hearing evidence before it, petitioner was not deprived of a fair hearing and due process.

There was considerable delay between Petitioner’s request for a grievance hearing and the date of the hearing itself. Petitioner requested the hearing on August 2, 2011. (AR 6-7.) DCFS declined her request on the ground that the matter was pending before the Juvenile Dependency Court. (AR 1.) Petitioner’s hearing did not take place until 2020.

“A hearing requested pursuant to [Penal Code section 11169,] subdivision (d) shall be denied when a court of competent jurisdiction has determined that suspected child abuse or neglect has occurred, or when the allegation of child abuse or neglect resulting in the referral to the CACI is pending before the court. A person who is listed on the CACI and has been denied a hearing pursuant to this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction has terminated, the court has not made a finding concerning whether the suspected child abuse or neglect was substantiated, and a hearing has not previously been provided to the listed person pursuant to subdivision (d).” (Pen. Code, § 11169(e), italics added.)

As an initial matter, petitioner may have waived this argument. It may be debatable whether the County properly denied petitioner a hearing in 2011 while the allegations underlying petitioner’s CACI listing were pending before the juvenile dependency court. As pointed out by petitioner in her letter requesting a hearing in 2020, petitioner was not a party to the juvenile dependency proceedings and that court’s finding regarding sexual abuse of I.M. related to petitioner’s daughter, who was a party to that proceeding, not petitioner. (AR 3.) However, as is conceded in petitioner’s 2020 letter, petitioner “did not request reconsideration of the denial of her grievance hearing” (AR 3) or otherwise challenge the denial in 2011. When petitioner finally questioned the 2011 denial in her request for a grievance hearing in 2020, she was given one.

To the extent petitioner has not waived her right to complain about the timeliness of her hearing, even if petitioner should have been given a grievance hearing when it was requested in 2011, petitioner has not shown she suffered prejudice due to the delay. “When an individual claims governmental delay in imposing sanctions has violated the guarantee of due process, the individual bears the burden of establishing actual prejudice.” (Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1141.) Even assuming the delay was improper, petitioner has made no showing that she was prejudiced, as is her burden to do so. The Court cannot assume she suffered prejudice solely based on the length of the delay. Petitioner’s timeliness argument thus fails.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.

[1] Penal Code section 11165.1 defines “sexual abuse” to mean “sexual assault or sexual exploitation.” (Pen. Code § 11165.1(a).) “Sexual assault” includes “[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs. . . of a child . . . for purposes of sexual arousal or gratification . . .” (Pen. Code § 11165.1(b).) “Sexual exploitation” includes the preparation of matter, including photos, depicting a minor engaged in sexual conduct. (Pen. Code § 11165.1(c).) Petitioner argues “the evidence does not prove all the elements of any of the offenses described in PC § 288(a), 647.6, and 11165.1(b)(4), and 11165.1(c).” (Opening Br. at 13.) Surely, I.M.’s testimony that petitioner and her daughter would “switch off rubbing their hands over [I.M.’s] vagina area and take pictures” satisfies the definition of “sexual abuse” under section 11165.1.

[2] Petitioner also cites Smulson v. Board of Dental Examiners (1941) 47 Cal.App.2d 584, 589, for the rule that “[an administrative] accusation or complaint is sufficient if expressed in the language of the statute…subject to the qualification that the language of the statute must be sufficiently explicit to advise a person charged thereunder of the particular kind of unprofessional conduct which it is proposed to prove against him.” It is hard to see how Smulson bears any relevance to the question of whether the DOJ Notice in this case satisfied due process.