Judge Curtis A. Kin, Case Number: 22STCP01933, Date: 2024-12-17 Tentative Ruling

Petitioner Mallcollms Ramirez petitions for a writ of mandate directing respondent County of Los Angeles to either (1) change its finding of “substantiated” child abuse to “inconclusive” or “unfounded” or (2) contact the California Department of Justice and have petitioner’s name removed from the Child Abuse Central Index.

Under the Child Abuse and Neglect Reporting Act (“CANRA”), codified in Penal Code §§ 11165-11174.3, agencies designed as mandated reporters under Penal Code § 11165.9 “shall 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….” (Pen. Code § 11169(a).) Only substantiated reports shall be forwarded to the Department of Justice. (Pen. Code § 11169(a).) “Substantiated report” is defined “as 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 § 11165.12(b).)

The Department of Justice is required to maintain an index, the Child Abuse Central Index (“CACI”), of all substantiated reports of child abuse and severe neglect submitted pursuant to Penal Code § 11169. (Pen. Code § 11170(a)(1-3).) Responsibility for the accuracy, completeness, and retention of the reports lies with the submitting agencies. (Pen. Code § 11170(a)(2).) Submitting agencies shall, at the same time of forwarding to the Department of Justice, send written notice to known or suspected child abusers that they have been reported to the CACI. (Pen. Code § 11169(c).)

As pertinent to this case, “child abuse or neglect” includes “sexual abuse” as defined in Penal Code § 11165.1. Section 11165.1 defines “sexual abuse” to mean sexual assault, which includes the “intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child…for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.” (Pen. Code § 11165.1(b)(4).)

Persons listed in CACI may challenge their listing and have the right to a hearing before the agency that requested their inclusion in the index. (Pen. Code § 11169(d).) The hearing must comport with due process. (Pen. Code § 11169(d).) The procedures for the hearing are set forth in the Manual of Policies and Procedures issued by the California Department of Social Services (“MPP”). (MPP § 31-021 [CACI Grievance Procedures].) The county employee who conducted the investigation leading to the CACI listing must be present at the hearing. (MPP § 31-021.67.) Parties may call witnesses and question witnesses called by the other party. (MPP § 31-021.66.) However, the grievance review officer does not have subpoena power. (MPP § 31-021.66.)

After the hearing, the grievance review officer shall issue a written recommended decision concerning whether the allegation of child abuse or severe neglect is substantiated within 30 days of the completion of the hearing. (MPP §§ 31-021.81-31-021.82.) Within 10 days of issuance of the recommended decision, the county director shall issue a final written decision adopting, rejecting, or modifying the recommended decision. (MPP § 31-021.83.) If the listing is determined to be based on a report that was not substantiated, the agency shall notify the Department of Justice of the determination, after which the department shall remove the listing from CACI. (Pen. Code § 11169(h).)

In 2008, after petitioner and Christine Wong had dated for six months, Wong moved into petitioner’s home with her twin daughters, minors SW and LW. (AR 316 [HT 120:2-11], 317 [HT 121:1-9], 333 [HT 137:9-10].) The girls would live with their mother and petitioner on weekdays and with their father, Peter Wong, on weekends. (AR 58, 316-17 [HT 120:25-121:2].)

When the mother and her twins lived with petitioner, petitioner worked outside the home as a retail store manager, anywhere from 50 to 54 hours per week. (AR 322-23 [HT 126:27-127:7, 127:24-25].) He worked six days a week, with Sundays off. (AR 324 [HT 128:1-4].) He arrived home from work between 7:00 and 8:00 p.m. every workday. (AR 323 [HT 127:19-23].) The mother worked Friday, Saturday, and Sunday nights as a nurse. (AR 323 [HT 127:8-14].) The girls stayed with their father essentially every weekend, until October 2009. (AR 218 [HT 22:15-16], 323 [HT 127:13-15], 327 [HT 131:1-11].)

The father would get the assistance of his brother’s significant other, Cindy Liang, to babysit the girls when they were at his home. (AR 21, 58, 97, 219 [HT 23:1-9].) Near the end of 2009, the mother accused Liang of abusing LW after LW was burned by a cigarette. (AR 21 [Decl. 4:7-11], 323 [HT 127:15-18].) The girls were removed from the father’s care for three months. (AR 21 [Decl. 4:10-11].) They recommenced their normal weekend visits with him in January 2010. (AR 326 [HT 130:9-10].)

During those three months when the twins stayed at petitioner’s house on weekends, if the mother was working, then the mother’s mother, petitioner’s sister, or petitioner’s mother would stay at the house to take care of the twins. (AR 324 [HT 128:6-13], 327 [HT 131:1-6].) Due to the father having been extremely aggressive towards the mother in October 2009 and his fear of being in the same position, petitioner did not want to care for the girls in his home unless their mother was there. (AR 338-39. [HT 142:8-15, 142:23-143:4].) During the entire time that the twins lived with petitioner, which was approximately three years, petitioner maintains that he was not left alone with the girls, except maybe a few times. (AR 217 [HT 21:5-18], 324 [HT 128:19-28].)

On June 27, 2010, the Los Angeles County Department of Children and Family Services (“DCFS”) received a call through its Child Protection Hotline reporting acts of sexual abuse by petitioner against minors SW and LW when they were five years old. (AR 183.) SW allegedly told her babysitter, Cindy Liang, that petitioner kissed her on the lips, butt, and private area under her clothing in the bathroom at her mother’s home, and that he also touched SW’s private area with his thumb but did not penetrate. (AR 58.)

On June 28, 2010, Children’s Social Worker Maya Barnett (“CSW Barnett”) interviewed the mother. (AR 70.) The mother appeared calm, looked with a blank stare and a flat affect when informed of the allegations. (AR 70-71.) When she was asked if she had anything to say about the allegations, the mother stated that petitioner “stopped bathing the girls a couple of months ago” because they were growing, and he could not bathe them anymore.” (AR 71.) When asked whether she left the children alone with the petitioner, the mother stated, “No….not really,” then “No.” (AR 71.)

CSW Barnett asked the mother approximately five times if she believed her children were lying. (AR 71.) The mother had no response the first four times. On the fifth time, the mother stated, “They lie sometimes.” The mother then said, that at times LW lies but SW does not. (AR 71.) CSW Barnett observed that the mother did not appear to be surprised or alarmed that her children stated her live-in boyfriend, i.e., petitioner, sexually abused her children. (AR 71.) When CSW Barnett asked whether the children told her about the sexual abuse, the mother stated that the children would not tell her but would tell someone else. (AR 71.)

On June 28, 2020, CSW Barnett interviewed SW and LW individually in the home of the father. While alone with SW in the living room, Barnett asked SW what she had told Cindy Liang on Saturday. While pointing at her vagina, SW stated that, while in the bathroom and not during bathtime, petitioner touched her private area. (AR 72, 243-44 [HT 47:20-48:4].) SW indicated that she was touched “more than one time.” (AR 72-73.) Barnett asked SW if she was taking a bath and she said “no” and that they were just in the bathroom and that he touched her in her private area with her clothes on. (AR 72, 243-44 [HT 48:15-21].) SW demonstrated how petitioner touched her by touching and squeezing CSW Barnett’s upper arm. (AR 72.) CSW Barnett asked SW whether it hurt when petitioner squeezed her in her private part. SW said “yes” and that she started to cry. (AR 72.) Petitioner then told her to go to her room and be quiet. When asked whether petitioner put his finger inside of her private area, SW said “no.” (AR 72.) SW told Barnett that no one else touched her in her private area the way petitioner did. (AR 73.)

SW also told Barnett that her father, mother, and petitioner all use a hammer to hit her on the hand when physically disciplining her. (AR 73, 255.) When Barnett repeated “hammer,” SW responded that maybe she was just hit on the hand by her parents’ hand. (AR 73.) SW’s comments to Barnett and law enforcement about the use of a hammer did not cause any concern for Barnett; she believed SW’s statements. (AR 255-56 [HT 59:4-60:6].)

CSW Barnett interviewed LW, while alone in the living room. (AR 73.) LW stated that petitioner “touched [her] private and [SW’s] too.” (AR 73.) When asked to demonstrate what petitioner did to her, LW placed her hand on CSW Barnett’s arm, squeezed, released, and then squeezed again. (AR 74.) When asked if petitioner put any of his fingers inside LW’s private area, LW said “no.” (AR 74.) When asked if it hurt when petitioner squeezed her private area, LW said “yes.” LW also stated that no one else touched her in the way petitioner had touched her. (AR 74.)

CSW Barnett did not ask the girls if the alleged incidents happened while they were using the toilet. (AR 264 [HT 68:24-27].) Barnett did not test the ability of either of the girls to discern the difference between a truth and a lie. (AR 241-42 [HT 45:25-46:8].)

On June 28, 2010, at 4:30 pm, petitioner arrived at Barnett’s office for an interview. (AR 74.) CSW Barnett asked whether the mother explained the situation. Petitioner started off by saying, “I stopped bathing the girls 6 months ago.” (AR 74.) CSW Barnett thought the response was strange because they had not discussed anything about the bathroom incident. (AR 75, 223 [HT 27:1-27].) CSW Barnett documented that, during the interview, as she started asking more detailed questions about his relationship with the girls, petitioner started to cry and asked, “Am I going to jail for something?” (AR 75, 224 [HT 28:1-11].) Barnett does not recall petitioner denying that he touched the girls. (AR 224 [HT 28:19-23].) Petitioner stated that, in the past, he gave the girls” time outs” and had yelled and screamed at the children to the point where they were afraid of him. (AR 75, 225 [HT 29:18-24].) Petitioner told CSW Barnett that he took on the role of primary caregiver for the girls when their mother was at work. (AR 75, 224 [HT 28:12-16].)

On June 28, 2010, CSW Barnett contacted informant Cindy Liang, who stated that, while babysitting the children, her sister Kathy went to kiss SW. (AR 76.) SW told Kathy, “Don’t kiss me on my lips.” (AR 76.) When asked who kisses her on the lips, SW referred to petitioner. (AR 76.) SW stated that petitioner kisses her on the lips and touched her private area and her butt under her clothes while they were in the bathroom, but not at bathtime. (AR 76.) SW told Liang that this happened when her mother was not at home and that her mother sometimes leaves them with petitioner. (AR 76.) Liang stated that SW’s sister, LW, verified the incident. (AR 76.) Liang did not state how many times petitioner touched SW. (AR 240 [HT 44:21-23].)

CSW Barnett also reviewed a Baldwin Park police report, dated June 26, 2010. (AR 225 [HT 29:28].) On that date, Officer Serrano spoke with the children’s father, who reported that, on June 26, 2010, he went to pick up his children—identified as “Doe #1” and “Doe #2”—from Cindy Liang. Liang recounted to the father Doe #1’s (presumed to be minor SW) statements that petitioner had kissed her on the mouth and touched her “down there” with his thumb. (AR 97.)

Officer Serrano spoke to Liang, who recounted Doe #1’s statement that petitioner kisses her on the mouth and touched her private part, while pointing to her vagina. (AR 97.) Doe #1 told Liang that she did not like it when petitioner touched her, and she was crying. (AR 97.) Liang asked Doe #2 if she saw what had occurred. Doe #2 told Liang that petitioner was touching Doe #1 in her private part. Doe #2 told Liang that she put petitioner on “time-out” because he was being a bad boy. (AR 97.)

Officer Serrano spoke to “Doe #1,” who confirmed that she knew the difference between the telling a lie and the truth. (AR 98.) Officer Serrano asked Doe #1 questions from the Gladys R. questionnaire but did not believe that she understood the questions that were being asked. (AR 98.) When asked to show where her private part was, Doe #1 pointed to her vagina. (AR 98.) When asked what she calls her private part, Doe #1 stated, “I don’t know the word, I just call it private part.” (AR 98.) Doe #1 said that petitioner touched her private parts “two times” and that petitioner touched her underneath her clothes. (AR 98.)

Doe #1 indicated that petitioner touched her using a hammer. (AR 98.) Doe #1 said petitioner “has fun everyday with [her]” “[be][c]ause he keeps hurting [her] head.” (AR 98.) Serrano asked what petitioner tells her when he touches her and she replied, “Like letters.” (AR 98.) Doe #1 said petitioner also touches her sister, Doe #2. (AR 98.)

Officer Serrano also spoke with “Doe #2,” who also stated that she knew the difference between telling a lie and telling the truth. (AR 98.) Officer Serrano asked Doe #2 questions from the Gladys R. questionnaire but did not believe that she understood some of the questions that were being asked. (AR 98.) Doe #2 denied that petitioner touched her. (AR 98.) Doe #2 said petitioner touches Doe #1 “[i]n the head, in the butt, in the legs, in the lips” and under her clothes. (AR 98.) Doe #2 confirmed that petitioner touched Doe #1 in the bathroom and that Doe #1 was crying and telling him, “Don’t touch me.” (AR 98.) Doe #2 stated that she put petitioner on a “time out” “[b]ecause he was trying to be bad.” (AR 98.) Doe #2 said the last time petitioner touched Doe #1 was “last week.” (AR 98.)

Officer Serrano noted both girls were physically examined by a registered nurse, who saw no lacerations, redness, or abrasions caused by penetration. (AR 99.) The nurse also spoke with the girls and neither girl disclosed abuse to her. (AR 64, 99.) However, the nurse noted that SW said that petitioner “hurt my leg with a hammer and he scratched my face.” (AR 89.)

On July 13, 2010, CSW Barnett spoke with LAPD Detective Larriva, who stated that each of the girls had a forensic interview, but that they did not interview well because they did not answer many questions. (AR 79.) Detective Larriva stated that she believed something happened with the girls and the mother’s boyfriend. (AR 79.) When the girls were asked about petitioner, they would look straight down and did not want to speak anymore. (AR 79.)

The Baldwin Park police report, dated July 20, 2010, also indicated that Detective Larriva spoke with the mother. (AR 103.) The mother said that both girls lie sometimes and that she does not believe that petitioner sexually abused her daughters because she has never seen him “do anything to harm” either of them. (AR 103.) Detective Larriva also spoke with petitioner, who denied the allegations and indicated that he did not know why they would accuse him of touching them in an inappropriate manner. (AR 103.)

On July 22, 2010, the referral of petitioner to DCFS was closed. (AR 7.) The allegations as to SW were deemed substantiated but not the allegations as to LW. (AR 117, 264 [HT 68:7-12], 268 [HT 72:21-28]). Petitioner’s name was listed in the CACI. (AR 117.)

After the mother and the girls moved out of petitioner’s home, petitioner’s parents, brother, sister, brother-in-law, and nephew moved in, and none of them ever saw any notice from DCFS informing petitioner that his name had been placed in the CACI. (AR 20 [Decl. at 3:10-21]; see also AR 25, 29, 34, 37, 40.)

In March 2019, petitioner received a letter from the California Department of Justice informing him that his name came up due to an issue from 2010. (AR 42.) Prior to that, he was not aware of the CACI listing. (AR 42.) He made several inquiries to find out what actions he could take to resolve the issue. (AR 43.) On March 29, 2019, respondent issued a Notice of Child Abuse Central Index Listing to petitioner. (AR 117.)

On April 12, 2019, petitioner requested a CACI grievance hearing to dispute his listing in the CACI. (AR 8.) On April 17, 2019, DCFS denied petitioner’s request for a CACI grievance hearing on the ground that the request was untimely. (AR 10.) On December 16, 2019, petitioner renewed his request for a grievance hearing and explained that he never received any prior notice of CACI listing. (AR 11-45.) DCFS granted petitioner’s request. (AR 46-47.)

Petitioner’s CACI review hearing was held in two parts on April 22, 2021 and July 30, 2021, before hearing officer Melanie Pelayo. (AR 197, 306.) Despite respondent’s objections to petitioner’s exhibits, the Hearing Officer admitted them into evidence but indicated it would be given appropriate weight. (AR 205-06 [HT 9:25-10:15.)

CSW Barnett testified that she substantiated sexual abuse of both LW and SW by petitioner under Penal Code § 11165.1. (AR 208.) Barnett admitted that, with respect to kissing the girls on the lips and squeezing their vagina, Barnett “d[idn]’t know what [petitioner] was thinking, if that was sexual gratification or not.” (AR 265 [HT 69:6-13].)

Petitioner testified under oath and denied ever touching either of the girls in any way that was inappropriate, including sexually inappropriate. (AR 332 [HT 136:7-14].) He denied ever kissing SW. (AR 332 [HT 136:15-21].) Petitioner testified that he told the girls not to kiss people on the lips, just as he told his own daughter that. (AR 332 [HT 136:16-21].) Petitioner also testified that, when he kissed their mother, the girls would say that they did not like him and that they wanted their mother to get back together with their father. (AR 321 [HT 125:23-27].)

Petitioner also offered the testimony of Dr. Veronica Thomas, a clinical and forensic psychologist, as his expert witness. (AR 270 [HT 74:10-11].) She reviewed the county’s evidence in the matter and conducted a psychosexual evaluation of petitioner in 2021. (AR 154, 272 [HT 76:1-12].) She testified that sexual interest in children does not change over time. (AR 280-81 [HT 84:22-85:9].) According to Dr. Thomas, sexual interest is fairly well established by puberty. (AR 311 [HT 115:18-19].) She testified that there was no finding that he had deviant sexual interests over his lifespan since adolescence. (AR 292 [HT 96:17-22].) She also testified that petitioner had no deviant arousal to children, issues with impulse control, or any other paraphilic problem areas. (AR 297 [HT 101:1-10], 312-13 [HT 116:27-117:2].)

On February 25, 2022, the Hearing Officer issued a written recommended decision. (AR 183.) In the “Basis of Recommended Decision” section, the Hearing Officer concluded that the substantiated allegation of sexual abuse as to both girls was supported. (AR 192.) The Hearing Officer noted that petitioner “did not provide evidence that showed that [the girls] were lying” and “did not provide an alternative explanation of what was going on in the bathroom during this incident.” (AR 192.) She further concluded that petitioner’s “efforts to show himself in a positive light came at the expense of him appearing to be a truthful witness.” (AR 192.)

On February 25, 2022, DCFS adopted the Hearing Officer’s recommendation as its final decision. (AR 195.)

On May 20, 2022, petitioner filed a verified petition for writ of mandamus. On July 12, 2022, respondent filed an Answer.

On October 9, 2024, petitioner filed an opening brief. On November 18, 2024, respondent filed an opposition. On December 3, 2024, petitioner filed a reply. The Court has received a hard copy of the administrative record.

Review of administrative decisions made pursuant to required hearings is governed by CCP § 1094.5. (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 reviewing whether a report of child abuse is substantiated “[b]ecause recordation in CACI as a probable child abuser impinges upon fundamental rights.” (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.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

As a preliminary matter, the Hearing Officer found that the allegations of sexual abuse as to both SW and LW were substantiated. (AR 192.) However, the notices of CACI listing issued to petitioner listed SW as the alleged victim. (AR 5, 117.) During the hearing, the Hearing Officer indicated that only the allegations against SW were listed as substantiated in the state case management system. (AR 264 [HT 68:7-12], 268 [HT 72:21-28].) Nevertheless, for the reasons stated below, the allegations of sexual abuse as to SW are sufficient to affirm the administrative decision.

The Court finds that the weight of the evidence supports a finding that the report of sexual abuse of SW by petitioner is substantiated.

According to CSW Barnett’s service log, on June 28, 2010, Barnett interviewed SW alone. (AR 72.) During the interview, SW indicated that, while she was in the bathroom, but not while she was taking a bath, petitioner touched her in her private area while she had her clothes on. (AR 72.) SW also indicated to Officer Serrano that petitioner touched her private part two times underneath her clothes. (AR 98.) LW also told Officer Serrano that petitioner touched SW “[i]n the head, in the butt, in the legs, in the lips” and that LW put petitioner on a “time out” “[b]ecause he was trying to be bad.” (AR 98.)

During the hearing, Barnett confirmed SW’s account and indicated that SW had pointed to her vagina in explaining that petitioner touched her in her private area. (AR 243-44 [HT 47:20-48:4, 48:15-21].) In demonstrating how petitioner touched her, SW squeezed Barnett’s upper arm. (AR 72.) When asked whether it hurt when petitioner squeezed her private area, SW responded “yes” and started to cry. (AR 72.)

Cindy Liang, the girls’ babysitter, also indicated to Officer Serrano that SW told her about petitioner’s touching and how SW did not like the touching and cried. (AR 97.) Liang also told Officer Serrano that LW told her that petitioner touched SW in her private part and that she placed petitioner on time out because he was being a “bad boy.” (AR 97.) When Detective Larriva spoke with the girls, they would not answer questions, but they would look straight down and did not want to speak anymore when asked about petitioner. (AR 97.) Detective Larriva believed that something happened between petitioner and the girls. (AR 79.)

Based on the foregoing, the weight of the evidence supports a finding that petitioner sexually abused SW, warranting his listing in the CACI. “Sexual abuse” includes the “intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child…for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.” (Pen. Code § 11165.1(b).) SW was consistent in her accounts to Liang, CSW Barnett, and Officer Serrano that petitioner had touched her on her vagina in the bathroom.

The Court notes certain inconsistencies and claims that could cast doubt on credibility. For example, SW indicated to Barnett that her parents and petitioner hit her on the hand with a hammer when they were disciplining her. (AR 73.) When Barnett repeated the work “hammer,” SW explained that perhaps her mother or father would use their hand to hit her hand. (AR 73.) LW also indicated to Officer Serrano that petitioner had not touched her (AR 98) but later told Barnett that petitioner did touch her. (AR 73.)

The Court also notes that SW and LW’s mother told Barnett that her children sometimes lie. (AR 71.) The Court also notes petitioner contention as to why SW would misrepresent that sexual abuse had occurred, claiming that, when he kissed the girls’ mother, they would say that they did not like him and that they wanted their mother to get back together with their father. (AR 321 [HT 125:23-27].) Petitioner and the mother also told Barnett that petitioner would yell at the girls a lot and that they would be afraid of him. (AR 75, 225 [HT 29:18-24], 216 [HT 20:23-21:2].)

Nonetheless, a “substantiated report” is defined “as 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 § 11165.12(b).) When the evidence is looked at as a whole, the Court finds that it is more likely than not that petitioner sexually abused SW. As stated above, SW was consistent in asserting that petitioner had touched her on her vagina. The Court also credits CSW Barnett conclusion that SW and LW’s corroboration of SW’s account was credible based on the girls’ demeanor, body language, and statements. (AR 255-56 [HT 59:21-60:15].)

While their mother told Barnett that the girls lie sometimes, the mother then clarified that LW lies, but not SW. (AR 71.) Even assuming LW may have some tendency to lie, her sister SW separately gave the same account of what petitioner did to SW. In any event, Barnett found the mother to be defensive, not surprised, at the allegation that petitioner was sexually abusing her daughters. (AR 215 [HT 19:17-27].) Barnett stated it is not a good sign when a parent states that their children lie. (AR 215 [HT 19:24-27].) Indeed, Barnett found it suspicious that, after she explained the allegation that petitioner touched SW in the private area, unprompted, the mother stated that petitioner stopped bathing the girls six months ago, even though Barnett had not brought up the topic of bathing. (AR 73, 214-15 [HT 18:21-19:12], 216 [HT 20:6-20].) Barnett also noted that she had asked the mother four times if the children were lying before receiving any response. (AR 71.)

Similarly, when Barnett asked petitioner at the outset of their interview whether the mother had explained the situation to him, petitioner curiously brought up the topic of bathing, which Barnett found to be suspicious for lack of prompting about the bathroom incident. (AR 74-75, 223 [HT 27:1-27].)[1] Barnett noted that, as she started asking more detailed questions about his relationship with the girls, petitioner started to cry and asked, “Am I going to jail for something?” (AR 75, 224 [HT 28:1-11].)

The Court finds that mother’s unnatural reaction to reports of sexual abuse to her daughters, petitioner’s nervousness during his interview, and the mother and petitioner’s unprompted assertion that petitioner had stopped bathing the girls are all consistent with a consciousness of petitioner’s wrongdoing, thereby bolstering the Court’s finding that SW and LW’s version of events is more likely true than not.

Furthermore, petitioner’s proffered reason for the girls’ purported misrepresentations is unavailing. The Court agrees with the Hearing Officer’s finding that “the girls were toddlers when their parents split, and they would not have remembered a time they were together, nor is there evidence that they fabricated the allegation in hopes of making that happen.” (AR 193.) Petitioner’s speculation concerning the girls’ motivations does not outweigh SW and LW’s account of events, as found credible by CSW Barnett.

Lastly, even though Dr. Thomas testified that petitioner had no inclination to be sexually aroused by children or problematic around children (AR 297 [HT 101:1-10], 312-13 [HT 116:27-117:2]), the doctor also testified that she could not be sure what happened 10 years ago during the incident or whether some external factor occurring after the incident could account for the doctor’s conclusions about petitioner today. (AR 312-13 [HT 116:23-117:27].)

Accordingly, for the reasons stated above, the Court finds that the weight of the evidence supports the finding that petitioner engaged in sexual abuse of SW, which warrants his continued inclusion in the CACI.

Petitioner argues that respondent failed to give timely notice of the CACI listing. Agencies referring suspected child abusers to the CACI are required to send notice of their CACI listing at the same time the report is sent to the Department of Justice. (Pen. Code § 11169(c); see also MPP 31-021.1 [notice of CACI listing, grievance procedures, and request for hearing to be sent to individual within five business days of submission of individual’s name to DOJ].)

On July 22, 2010, CSW Barnett deemed the allegations of child abuse against petitioner substantiated. (AR 7.) Petitioner’s name was placed in the CACI in October 2010. (AR 42.) Respondent does not deny that the placement occurred in 2010. Petitioner contends that he did not receive the notice of the CACI listing under March 2019, which prohibited him from calling the mother and obtaining a psychosexual evaluation closer to the time of the incident. (AR 42, 117.)

However, petitioner did not raise the issue of untimely notice in the administrative proceeding. “In general, a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) The exhaustion doctrine “requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy.” (McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 539.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.” (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) “The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.) Petitioner bears the burden to establish that it exhausted administrative remedies. (Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 37.)

The MPPs imposed on petitioner the burden of “provid[ing] evidence supporting his or her claim that the county's decision should be withdrawn or changed.” (MPP § 31-021.68.) As such, the CACI proceeding was akin to an adversarial proceeding subject to the requirement of exhaustion of issues and not, as petitioner contends, an informal, inquisitorial proceeding to which exhaustion does not apply. (See Carr v. Saul (2021) 593 U.S. 83, 89 [“The critical feature that distinguishes adversarial proceedings from inquisitorial ones is whether claimants bear the responsibility to develop issues for adjudicators' consideration”].)

Petitioner did not meaningfully raise or pursue his claim of untimely notice during the CACI hearing. Nor does he demonstrate he should be excused from so doing because he was barred or because it was futile for him to argue that he was prejudiced by receiving notice of the CACI listing nine years later. Accordingly, petitioner fails to show that he is entitled to writ relief based on untimely notice of the CACI listing.

Petitioner argues that the notice of CACI listing did not provide him adequate notice of the acts he was alleged to have committed. “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.)

Petitioner did not argue the adequacy of the notice during the hearing. For the reasons stated above with respect to untimely notice, petitioner is now barred from raising the adequacy of notice due to failure to exhaust. Even if petitioner was not barred from arguing that the notice was inadequate, the Court would find that the notice satisfies due process.

Under “THE SPECIFIC ACT(S) OF ABUSE OR SEVERE NEGLECT ALLEGED AGAINST YOU IS/ARE AS FOLLOWS,” the notice stated: “Substantiated: Sexual Abuse, Assault. Exploitation ([SW]). (AR 117.) The notice provided the alleged victim’s full name and the address where the alleged abuse occurred. (AR 117.) Further, the notice notified petitioner that reports may be disclosed to statutorily authorized parties pursuant to Penal Code § 11167.5. (AR 117.) As the person reported to the Department of Justice for listing in the CACI, petitioner is a statutorily authorized party to whom reports of the abuse may be disclosed. (Pen. Code § 11167.5(b)(11).) The notice provides petitioner with sufficient notice to ascertain the allegations against him.

Moreover, to the extent that the notice was deficient, petitioner must also show actual prejudice. (Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1141.) Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.) Here, petitioner interviewed with the Baldwin Park Police Department and CSW Barnett concerning the allegations of sexual abuse from the minors. (AR 75, 103.) Further, during the hearing, petitioner testified that, on June 29, 2010, Barnett informed him about the allegations of sexual molestation toward the kids, which prompted him to hire an attorney. (AR 327-28 [HT 131:22-132:19].) Under the circumstances here, notwithstanding any deficiencies in the notice of CACI listing, petitioner was adequately notified of the allegations against him.

Petitioner contends that the recommended and final decisions were untimely rendered. MPP 31-021.82 states that the hearing officer shall issue a written recommended decision within 30 calendar days after completion of the hearing. The hearing was completed at the latest on July 30, 2021.[2] (AR 306, 350.) Accordingly, the Hearing Officer had until August 29, 2021 to issue a recommended decision. The recommended decision was issued on February 25, 2022. (AR 183-94.)

Under MPP 31-021.83, “[t]he county director shall issue a final written decision adopting, rejecting, or modifying the recommended decision within ten (10) business days after the recommended decision is rendered.” Based on the August 29, 2021 due date of the recommended decision, the final decision was due by September 8, 2021. The final decision was issued on February 25, 2022. (AR 195.) Although the decision was untimely, however, “requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed.” (Edwards v. Steele (1979) 25 Cal.3d 406, 410.) The MPPs do not state the effect of an untimely decision, such as removal of a complainant from the CACI.

Accordingly, the untimeliness of the decision does not entitle petitioner to removal from the CACI.

Petitioner contends that he was deprived of the opportunity to cross-examine SW, LW, the father, Liang, Officer Serrano, and the nurse who conducted the physical examinations. However, “there is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies.” (Boermeester v. Carry (2023) 15 Cal.5th 72, 93.) While the accused is entitled to a meaningful opportunity to respond, there is also an interest in encouraging witnesses to report sexual assault and ensuring that accusers alleging sexual assault are not retraumatized. (Id. at 93 [sexual misconduct hearings at universities].) Indeed, the MPP provides that the hearing officer may prevent a child from being examined to protect the child from trauma. (MPP 31-021.662.) Entities lacking subpoena power, like the hearing officer in a CACI proceeding (MPP 31-021.66), are “ill-equipped to function as courts” because they cannot “force key witnesses to attend a hearing and be subject to cross-examination.” (Id. at 94.) So long as petitioner was provided with adequate notice of the charges and a meaningful opportunity to be heard, this is sufficient. (Id. at 90.)

Here, petitioner was provided sufficient notice of the CACI listing, presented himself and Dr. Thomas as witnesses, cross-examined DCFS’s witness, CSW Barnett (AR 229), and presented closing argument (AR 340-45). Petitioner was provided with fair procedure.

Petitioner contends that the Hearing Officer relied on a petition filed in dependency court to which he was not a party and which he never received. (AR 193.) Even though the allegations of the dependency petition were set forth under the “Basis of Recommended Decision,” it is clear the Hearing Officer did not rely on the dependency petition as evidence to reach a final decision that the claims of sexual abuse were substantiated. Indeed, the opposite is true. The decision of the hearing officer merely notes that “[a]s a result of the investigation in this matter, a petitioner was filed in Juvenile Dependency Court” and proceeds to quote some of the allegations of that petition. (See AR 193 [“Malcollms Ramirez sexually abused the children [SW] and [LW] by fondling the children’s vagina…inflicting pain to the children.” Notably, the decision does not even disclose what, if anything, the juvenile dependency court.

Accordingly, the dependency petition was not improperly used as evidence to conclude that petitioner engaged in sexual abuse. As discussed above, that conclusion was instead supported by, among other things, CSW Barnett’s testimony concerning her interviews with SW and Ms. Liang. (AR 186-87)

Petitioner argues that the Hearing Officer failed to apply the evidence to any category of sexual abuse. “[I]mplicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) The Court explained that “among other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.” (Id. at 516.)

Here, the Hearing Officer set forth the categories of sexual assault, which constitutes sexual abuse. (AR 192.) One of those categories is Penal Code § 11165.1(b)(4), “intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child…for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.” (Pen. Code § 11165.1(b)(4).) In the basis for the recommended decision, the Hearing Officer stated that SW told Liang that petitioner touched her private parts and that it was clear to law enforcement that SW was referring to her vagina. (AR 192.) Although the Hearing Officer noted Barnett’s testimony that she did not know if petitioner had sexual gratification when he touched the girls (AR 188), the Hearing Officer found that petitioner provided no alternative explanation for his being in the bathroom with the girls. (AR 192.) Further, SW indicated that she was not taking a bath when petitioner touched her. (AR 72, 186.) Absent any other reason for petitioner having been in the bathroom with SW, the evidence supports the implicit finding that petitioner touched SW for sexual gratification, an element of sexual assault as defined in Penal Code § 11165.1(b)(4).

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

[1] Petitioner testified during the hearing that he only spoke with Barnett over the phone and did not submit to an interview in Barnett’s office. (AR 329 [HT 133:3-10].) However, this is contradicted by Barnett’s notes of the interview. (AR 74-75.)

[2] The transcript of the hearing indicates that the second part of the hearing took place on July 30, 2021 (AR 306), but the recommended decision of the Hearing Officer stated that the second part of the hearing was on June 30, 2021 (AR 183). Regardless of the date of the second part of the hearing, the Hearing Officer did not issue a written recommended decision within 30 calendar days of completion.