Judge James C. Chalfant, Case 21STCP03427 2022-10-04 Tentative Ruling

Petitioners Service Employees International Union, Local 721 (“SEIU”) and Hripsime Kanataryan (“Kanataryan”) seek administrative mandamus directing Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision terminating Kanataryan’s employment with Real Party-in-Interest Los Angeles County, Department of Children & Family Services (“DCFS”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioners SEIU and Kanataryan commenced this proceeding on October 13, 2021. The verified Petition alleges a cause of action for administrative mandate and alleges in pertinent part as follows.

Kanataryan had been an employee of DCFS since March 6, 2009. On January 22, 2019, she received a Notice of Intent to Discharge (“Notice of Intent”) for alleged failure to meet performance standards. DCFS alleged that Kanataryan filed to thoroughly assess allegations of physical abuse of Damian V (“Damian”). She closed the case but did not assess allegations of physical abuse, contact collateral contacts, follow-up regarding inconsistent statements, investigate the mother’s boyfriend, Joe B., or document client contacts.

On February 21, 2019, DCFS held a pre-deprivation hearing. DCFS issued a Letter of Discharge on March 6, 2019 which did not include any documents, names, witnesses, dates, or any other related information supporting its random review of other cases. Kanataryan filed an appeal, and the Commission certified the issues to include (1) whether the allegations in the Letter of Discharge were true and (2) if the discipline of termination was appropriate.

After a multiple-day hearing in December 2019, the Hearing Officer filed Proposed Findings of Fact, Conclusion of Law, and Recommendation. The Hearing Officer recommended that the discharge be overturned for DCFS’s failure to carry its burden and recommended suspension instead. The Hearing Officer concluded that DCFS had fired Kanataryan because it wanted to blame someone for Damian’s death.

On October 14, 2020, the Commission issued Revised Findings of Fact and Conclusions of Law, concluding that the DCFS met its burden in proving discharge was the appropriate discipline. On July 16, 2021, the Commission issued a final decision of discharge.

Petitioners seek a writ of mandate compelling the Commission to set aside the discharge and restore Kanataryan’s employment and benefits prior to March 7, 2019, as well as general and special damages with interest at the full legal rate, attorney’s fees, and costs.

On October 18, 2021, Petitioners served the Petition and Summons on Real Party-in-Interest County, Real Party-in-Interest DCFS, and Respondent Commission.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

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, supra, 4 Cal.3d at 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the 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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217218. The penalty should be upheld if there is “any reasonable basis to sustain it”. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (“Montez”) (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

When assessing allegations of physical abuse, a Children’s Social Worker (“CSW”) shall interview each child separately, away from the caregiver, and consider the child’s age and developmental stage, physical and mental health, intellectual, verbal and cognitive capacity. DCFS Procedural Guide 0070-529.10; AR 424.

The CSW must consider the possibility of physical abuse when the nature or the extent of the child’s injury is inconsistent with the explanation given by the parent/caregivers. DCFS Procedural Guide 0070-529.10.5.c; AR 376. The CSW must also consider whether the parent/caregiver who is alleged to be the perpetrator of physical abuse has substance abuse or mental health issues. DCFS Procedural Guide 0070-529.10.5.a; AR 376.

If the child has physical injuries or symptoms which may be indicative of physical abuse, the CSW must consider detention if (1) the physical injuries/symptoms are verified by medical evaluation to be the result of physical abuse; (2) a verbal child discloses being physically abused, describes the perpetrator as being a parent/caregiver or other person who has access to him/her, and has observable marks and/or other symptoms of physical abuse; or (3) there is evidence that the child has been physically abused and the alleged perpetrator is the parent/caregiver. DCFS Procedural Guide 0070-529.10.8; AR 376.

It is particularly critical that, for children 0-36 months of age, the CSW conducts visual inspections during the investigative stages when assessing for physical harm resulting from an act of abuse or neglect. DCFS Procedural Guide 0070-531.10; AR 376. If marks or bruises are found on the child’s body, the CSW should document their size, color, and shape before determining whether a detention is necessary to protect the child. DCFS Procedural Guide 0070-531.10; AR 376.

A CSW should interview alleged victims and all the children in the family regarding the allegations individually and privately. DCFS Procedural Guide 0070-548.10; AR 376. Each child’s safety and well-being should be assessed based on health/physical condition, condition of the home, child’s age and developmental stage, family or environmental stress, parenting skills, and availability of day care. DCFS Procedural Guide 0070-548.10; AR 376. The CSW must also document all children before closing a referral. DCFS Procedural Guide 0070-548.10; AR 376.

The CSW must also (1) make all reasonable efforts to contact pertinent collateral contacts that may have knowledge of the child’s alleged abuse or neglect; (2) request all available written reports, photos and other documents that will assist in determining whether child abuse or neglect occurred; and (3) document all attempts to obtain these reports and document the results of any criminal check. DCFS Procedural Guide 0070-548.10; AR 376.

A CWS/CMS clearance is required on adults when investigating reports of alleged abuse, neglect, or exploitation; clearance is required on parents and alleged perpetrators, including history of a parent as a child and out-of-county history. DCFS Procedural Guide 0070-559.10; AR 377. A Supervisor CSW (“SCSW”) determines if clearance is necessary on other adults living in the home. DCFS Procedural Guide 0070-559.10; AR 377. The investigation should include a CWS/CMS search on the parents and alleged perpetrators, including any history of a parent as a child, out-of-county history, and any history as a foster/resource parent. DCFS Procedural Guide 0070-548.10; AR 377. If there is a prior history, the CWS should review the results of the investigation, whether child welfare services were provided, and assess the family’s prior level of compliance. DCFS Procedural Guide 0070-548.10; AR 377. A review of a comprehensive Investigation Narrative may suffice as review of a referral. DCFS Procedural Guide 0070-548.10; AR 377. The CSW should also contact the current or last CSW/SCSW assigned to the case or referral and gather additional information regarding the family. DCFS Procedural Guide 0070-548.10; AR 377.

CSWs shall have ongoing contact with any other professional working with the child, parents/guardians, and any out-of-home care provider who can provide insight on the needs or progress of the family. DCFS Procedural Guide 0400-503.10; AR 377. CSWs shall make necessary collateral contacts with persons having knowledge of the condition of the children that will help in understanding the nature and extent of the alleged child abuse/neglect, and in the ongoing assessment of the risk to, and safety of, the child. DCFS Procedural Guide 0400-503.10; AR 377.

If the reporting party/mandated reporter is not reached after three attempts and there is an address on file, the CSW must send a certified letter to the reporting party/mandated reporter explaining the attempts made and request a telephone response to the letter. DCFS Procedural Guide 0070-548.10; AR 377. If necessary, the CSW should request the assistance of SCSW or supportive staff that can assist in contacting the reporting party/mandated reporter. DCFS Procedural Guide 0070-548.10; AR 377. If new allegations are discovered, the CWS must determine if the allegations should be added to the referral. DCFS Procedural Guide 0070-548.10; AR 377.

All contacts, including attempted contacts (i.e., face-to-face, telephone, letter, e-mail, etc.) must be documented in CWS/CMS within three business days of the date the contact took place. DCFS Procedural Guide 0400-503.10; AR 377. If the information needs to be edited or additional information needs to be entered after completing and saving a contact, the CSW should enter the date of the update at the bottom of the narrative section and add the supplemental information; the original language of the contact must not be altered or modified. DCFS Procedural Guide 0400-503.10; AR 377.

If a DCFS employee observes, suspects, or receives a report of abuse, neglect, caregiver absence/incapacity, or exploitation from a source other than the CPH, that employee must immediately contact the CPH to make a referral for initial assessment. DCFS Procedural Guide 0050-501.10; AR 377.

Any employee of a child protective agency who has knowledge of, or observes a child in his or her professional capacity, or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse, to report the known or suspected instance to a child protective agency immediately or as soon as practically possible, by telephone, and to prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. DCFS Human Resources Manual §8.020; AR 377-78.

A failure to follow established rules or regulations is punishable the first time by warning or 10-day suspension, a 15- to 30-day suspension or discharge for the second occurrence, and discharge or reduction upon the third. Discipline Guidelines §II.B; AR 478.

When carelessness or inattention to duties results in improper service being rendered to clients, patients, or the public, or it results in impairment of a county function, the agency may punish it by (1) a warning to a 15-day suspension, reduction, or discharge for the first offense, (2) 20- to 30-day suspension, reduction, or discharge for the second occurrence, and (3) discharge or reduction upon the third. Disciplinary Guidelines §VII.A; AR 483.

When work performance fails to meet job expectations, standards, or requirements, whether implied or explicit, the agency may punish it by (1) a warning to a 10-day suspension for the first offense, (2) 15- to 30-day suspension or reduction for the second occurrence, and (3) discharge or reduction upon the third offense. Discipline Guidelines §VII.F; AR 484.

When failure to exercise sound judgment results in loss of, injury to, or damage to persons or property of the County or of County service, the agency may punish it by (1) a warning to 15-day suspension, reduction, or discharge for the first offense, (2) 20- to 30-day suspension, reduction, or discharge for the second occurrence, and (3) discharge upon the third occurrence. Discipline Guidelines §VII.H; AR 484.

Kanataryan began work for DCFS as a CSW on March 6, 2009. AR 1113. As part of her employment, she signed an acknowledgement of expectations for CSWs on November 20, 2015. AR 593-94.

Kanataryan worked in the West Los Angeles office’s Emergency Response Unit (“ERU”) between 2016 and 2019. AR 740, 1113-14. The ERU investigates allegations of abuse and neglect. AR 1051-52. To that end, the duties of the CSW include visiting children, interviewing them and their families and other cohabitants, documenting their actions, finding supporting agencies in the County, and connecting the families to them. AR 1088. A matter comes to ERU as a referral and goes to Continuing Services if it gets promoted to a case. AR 1114.

Kanataryan’s performance evaluations during her employment were between “Competent” or “Met Expectations” and with improvement needed. AR 564-80.

In 2011, DCFS discharged Kanataryan for missed face-to-face contacts with children and parents, falsification of contact records, field itineraries, and mileage claims, and insufficient or missing narratives for face-to-face contacts with children. AR 610. In 2014, however, the Commission reduced the discipline to 30-day suspension and reinstated her with backpay. AR 605.

On January 20, 2018, Damien V. (“Damien”) arrived at Kaiser Permanente with his father (“Father”) for a medical examination. AR 502. Father explained that Damien’s parents are separated, and that Damien’s mother (“Mother”) dropped Damian off with a red left eye. AR 502. When Father asked what happened, Damian said that Mother’s boyfriend, Joe B. (“Joe”), hit him. AR 502. Father said that Damien appeared scared and sad when he arrived at Father’s house. AR 502. When Father asked Mother, she said she thought Damian fell at daycare. AR 502. The medical examiner found signs of child abuse including left subconjunctival hemorrhage, a petechiae at left side of neck, and bruising of the forehead, cheek, and chest. AR 503.

In response to Kaiser’s report of suspected child abuse, DCFS generated a five-day response referral, due January 26, 2018, and assigned it to Kanataryan. AR 353.

On January 25, 2018, Kanataryan and CSW Gunaratne visited Damien at Father’s house to interview them both. AR 492. Gunaratne reviewed the living space shared with Father’s parents and siblings and found it adequate. AR 492. Kanataryan discovered Damian asleep in the car, having fallen asleep on the drive home with Father. AR 492. Father had tried to wake up Damien, but he would open his eyes and fall back asleep. AR 492. Kanataryan and Gunaratne tried to speak to Damien, but he was too sleepy. AR 492. Father asked if the CSWs could interview him (Father) at the car so that they would not have to wake up Damien. AR 492. The CSWs agreed. AR 492.

Although Kanataryan observed no physical marks on Damien’s face, Father asserted that they were more visible last week and showed the CSWs two videos and pictures. AR 492-93. Father explained that Mother always blames Damien’s daycare for injuries but never gave Father its number to call and confront the teacher. AR 493. Father stated that Damien had bruises on his forehead, cheeks, and neck. When he asked Damien what happened, Damien told him that Joe slapped him on the face. AR 493.

Father had a car in his driveway that he permitted Mother to drive because she needed a car to transport Damien. AR 493. He asked Mother to return the car because she was behind on the payments. AR 493. When he got the car back, it smelled like marijuana inside. AR 493. This was surprising because she drives Damien in the car and may have been smoking marijuana with the baby inside. AR 493. Father asserted that Damien was due to return to Mother’s care on Monday and he was not comfortable sending the child back to her. AR 493.

On February 6, 2018, Kanataryan spoke with “Cici,” the director of Cici Child Care. AR 497. Cici denied ever meeting Father because Damien did not attend childcare when he was with Father. AR 497. Cici denied that Damian received any injuries at the daycare center. AR 493. When she asked Damien about his injuries, he said “Oscar did it”. AR 497. She was surprised that Damien referred to Father as Oscar. AR 497. She stated that Damien was picked up from childcare by Mother, grandmother, or Mother’s boyfriend, Joe. AR 497. Damien had no problem going home with Joe; he runs and holds Joe’s hand to leave. AR 497. Her opinion was that Damian was just clumsy and injured himself. AR 497.

On May 29, 2018, Kanataryan and PHN Sevana Keshishian (“Keshishian”) visited Mother, who claimed that five minutes earlier Damian dropped a toy while having breakfast and bumped his forehead on the coffee table. AR 507. Damien was sitting on a chair holding an ice pack to his head and crying. AR 507-08. The CSWs observed a bump on his forehead. AR 508. During the conversation, Damian was able to show his toy and say: “It’s a Crocodile”. AR 508. Damien had a faint linear mark in a vertical fashion next to his left eye, and a small circular light blue or green mark on his left cheek. AR 508. When Keshishian asked about it, Mother claimed that Damien told her a cousin poked her while he was at Father’s house. AR 508. Mother claimed that Damien exaggerates and has begun hitting people with closed fists, including his grandmother. AR 508.

On June 4, 2018, Kanataryan contacted the District Attorney’s office and was informed that Joe had no arrests and no district attorney assigned to a criminal case for him. AR 509.

On June 7, 2018, Kanataryan learned from the police that it had received an injury report but had not made any arrests. AR 509.

Kanataryan closed the referral as inconclusive for physical abuse on June 21, 2018. AR 379. On July 3, 2018, Damien was pronounced dead with multiple bruises on his face and torso. AR 379. Joe was with Damien prior to his death. AR 365.

DCFS launched an investigation into the handling of the Damien referral. AR 364.

On January 22, 2019, DCFS issued a Notice of Intent to Discharge Kanataryan. AR 361. The Notice of Intent alleged that for the Damien referral Kanataryan had (1) failed to thoroughly assess allegations of physical abuse, (2) failed to contact collateral contacts, (3) failed to follow-up regarding inconsistent statements, (4) failed to further investigate Joe after learning that he had a DUI, (5) failed to document client contacts in accordance with DCFS policy, and (6) failed to adequately complete her duties as a CSW on a random review of other referrals. AR 365-68.

For the last allegation, DCFS conducted a random review of ten referrals assigned to Kanataryan from February through June 2018. AR 368. In those cases, she failed to (1) enter client contacts in CWS/CMS timely, (2) review DCFS family history, (3) contact the reporting party and pertinent collateral contacts, (4) close referrals timely, (5) complete body charts, and (6) consult with Public Health Nurses (“PHNs”) on physical abuse. AR 368. All ten referrals also were open for over 30 days, with two over 60 days and one of those over 120 days. AR 368. For all ten cases, Kanataryan also entered contacts beyond the 72-hour window. AR 368.

After a February 21, 2019 Skelly hearing, on March 6, 2019, the DCFS issued a Notice of Discharge. AR 375. The allegations were identical to the Notice of Intent, except that The Notice of Discharge also noted that there were 11 occasions where Kanataryan failed to record contact for Damien’s case within the 72-hour period and that, subsequent to the initial entry, she went back into CWS/CMS and altered her client contacts. AR 382.

Kanataryan filed for an appeal. On May 29, 2019, the Commission certified two issues for hearing: (1) whether the allegations in the Notice of Discharge are true, and (2) whether discharge was appropriate. AR 186.

The hearing began on December 9, 2019. AR 621. Pertinent testimony is as follows.

Ada Escobar (“Escobar”) is a DCFS Children Services Administrator 1. AR 646. She has been with DCFS for 18 years, most of that “on the line” as either an ERU CSW or Continuing Services CSW. AR 673.

As part of her investigation, Escobar found that Kanataryan did not contact the mandated reporting party, the Kaiser social worker who examined Damian. AR 652. Kanataryan did leave voice messages asking the social worker to call, but she did not send a letter asking for a return call. AR 653.

Escobar reviewed the Deliberate Service Logs -- documentation of all contacts in a referral or case -- for the Damian referral. AR 654. CSWs are supposed to record every contact within 72 hours, but Kanataryan violated that rule many times. AR 657, 727. For example, she did not input a January 25 contact until March 7, 2018. AR 658-59.

According to the logs, Damien’s referral was opened on January 20, 2018. AR 655. Kanataryan did not interview Damian during her first visit or inspect his body because he was asleep. AR 656. A body chart is required, and she never did one. AR 656-57. Although she noted some scarring, it was already fading. AR 657. When Kanataryan closed the case in June, the logs still showed that she had not completed an inspection or a body chart. AR 656-57, 727.

A CSW must contact mandatory contacts on a regular monthly basis per policy. Mandatory contacts include parents, people who live in the home, and the alleged perpetrator. AR 725, 727. The CSW must contact all collateral contacts at least once and may contact them as many times as necessary. AR 724-25. Whether someone is a mandatory or a collateral contact depends on the level of interaction; anyone who picked up or babysat Damian could be a collateral contact. AR 693.

Although Joe drove Damien to and from childcare, Kanataryan never evaluated Joe’s suitability to drive Damien around. AR 664. There was no evidence that Joe picked Damien up from school daily. AR 693.

Kanataryan contacted Joe by telephone. AR 660. Despite allegations that Joe hit Damien, she never performed a search for Joe in CWS\CMS – a statewide database of all case notes, court reports, and referrals. AR 661. A CWS/CMS search would have revealed that Joe had history with DCFS, both as a minor who suffered abuse while in foster care and as a father suspected of child abuse. AR 661-62. Kanataryan did conduct a search in CLETS – a criminal database – and found that Joe had both a failure to appear in court and a DUI arrest. AR 663.

Escobar reviewed ten other referrals assigned to Kanataryan to see if she conducted the basic procedure such as contacting relevant parties. AR 667-68. She discovered a pattern of contacts not being inputted timely or not done at all, collateral persons not being contacted, and leaving referrals open for over 30 and sometimes 150 days. AR 668-69. Some of them lacked Structured Decision-Making as well. AR 668.

During the Damien investigation, Kanataryan had a normal caseload of 33 new cases per month, and sometimes she had less than half of that. AR 669. However, in February 2018, she had 48 cases -- half new and half pending -- because she did not close any referrals in January 2018. AR 733. For February, her 24 new cases were the highest in the ERU. AR 733.

Although a supervisor can always access an electronic file and keep working on it, a supervisor must approve closure of a file. AR 686-87. A social worker cannot close it on their own. AR 687. A CSW who hands a file to the supervisor for closure and waits for approval can make a note of that. AR 688.[1]

Luis Valdovinos (“Valdovinos”) was a supervisor of the West Los Angeles ERU for three years. AR 737. Before that, he was a social worker for what is now considered Continuing Services. AR 737, 739.

He supervised Kanataryan for 2.5 years between June 2016 and April 2018. AR 740-41. He rated her as competent through September 2017. AR 766-67. Blanca Magaña (“Magaña”) succeeded him as supervisor. AR 741-42.

On one occasion, Kanataryan had a mental breakdown during a hard case with many children and Valdovinos remarked that Kanataryan seemed to get the most challenging cases. AR 795-96.

The ERU typically tries to work fast on physical abuse cases because evidence on the child fades and disappears. AR 774. Valdovinos advises CSWs to ask PHNs whether they should conduct a joint visit if the PHN has additional information. AR 777.

To close a case and decides how to move forward, the supervisor considers all the information gathered from various sources and makes the best decision possible. AR 799-800.

Valdovinos worked with Kanataryan after she was assigned Damien’s referral by the system to create a case plan for gathering information. AR 742-44. The case plan was to follow up on all medical impressions and observations from the medical staff, and obtain professional collateral contacts form the school, social workers from past cases, and law enforcement because it was a physical abuse allegation. AR 744-45. Kanataryan also was to run a CLETS search on those associated with the family. AR 745. He met with Kanataryan regularly to discuss the case but could not remember how often. AR 746.

On March 7, 2018, Kanataryan sent the case to Valdovinos for approval to close it. AR 747. Valdovinos reviewed the case and returned the file. AR 747. He had concerns about the case and made follow-up notes from the work plan. AR 7747. One thing he wanted her to do was contact the detective for a statement about any investigation into Joe and whether law enforcement would arrest him. AR 748. He also wanted specific statements from the doctor whether his medical opinion was based on review of the case or examination of Damien. AR 749. The reporting party at Kaiser also had not been contacted. AR 749. Finally, Valdovinos wanted to meet with the family to discuss Alternative Response Services. AR 749.

Kanataryan did not complete any of the five tasks Valdovinos gave her. AR 751. She did complete an additional task he had added in a March 9, 2018 email by calling Dr. D. Ridder (“Ridder”).[2] AR 752. Valdovinos was not sure whether Kanataryan had a thorough conversation with Ridder about her findings of marks and bruises and impressions of the child. AR 783. He did not believe that Kanataryan had an appropriate conversation with Ridder but did not personally call because this was close to when he left ERU. AR 783-84. He did not inform his successor, Magaña, that he did not have faith in Kanataryan’s report of her conversation with Ridder. AR 784.

At some point, Kanataryan contacted the detective working the case and the District Attorney’s office. AR 780.

On April 23, 2018, Valdovinos sent an email to Kanataryan that she needed to finish the Damien referral and introducing her to Magaña. AR 753. By then, he was out of ERU and no longer supervising Kanataryan, but he was concerned about a case that was open for four months. AR 754. Kanataryan had a pattern of poorly managing her time. AR 754. By then, DCFS should have decided either to move forward or close the case. AR 760. He was also concerned about her failure to complete investigative tasks, meeting deadlines, entering contacts on time, and organizing the case as needed. AR 756-57, 761. He had voiced these concerns to Kanataryan throughout their meetings. AR 761.

Joe had a son that Kanataryan should have contacted but never did. AR 758. There was another social worker from a different office who was investigating Joe that she should have contacted as well. AR 759.

Valdovinos did not recall whether he asked Kanataryan to file a body chart, even though it is mandatory. AR 790.

He issued a Confirmation of Counseling (“COC”) – a tool the DCFS uses to monitor employee errors and impose progressive discipline – to Kanataryan showing that he met with her on January 9 and March 30, 2018. AR 762-63. The January 9 meeting concerned her time management, organization, and adhering to policy. AR 763. The March 30 meeting concerned Kanataryan’s caseload and her failure to timely input contact information, complete investigations, and close referrals. AR 764. When Kanataryan received the COC at a meeting with her union steward, Valdovinos, and Magaña, she refused to sign it and said she would seek representation. AR 765-66. Around the same time, the union grieved the COC system on behalf of 11 members, which Valdovinos became aware of after-the-fact. AR 787.

Brandon Nichols (“Nichols”) is the Chief Deputy Director of DCFS. See AR 361. The chain of command in DCFS goes from the Director to the Chief Deputy to the Deputy Director to a Regional Administrator. AR 885. He has never been a social worker. AR 841.

Nichols was the decisionmaker for Kanataryan’s discharge based on the allegations in the Notice of Intent. AR 817. He made this decision based on the severity of conduct repeated multiple times across multiple cases, her disciplinary history, lack of rehabilitation, and the damage she could cause to the public’s confidence in DCFS. AR 817-18. DCFS’s reputation and public confidence depend on its ability to work with the public and the ability of dependency judges to rely on its reports. AR 818.

The policies ensure that a social worker handles cases in a reliable and consistent way. AR 830. The investigator’s job is to assess the safety and risk to a child and, to do that, the social worker needs all relevant information. AR 831. The cases are often “he said, she said” and it is important to get the perspective of multiple parties and witnesses. AR 831. Timely input of contacts ensures that the information inputted is accurate and not subject to memory loss and allows other employees to use it sooner. AR 830-31. Contacting collaterals allows the social worker to gather as much information as possible, as well as more witnesses for court proceedings. AR 831-32, 835. When there are inconsistent statements, the social worker’s obligation is to gather as much evidence as possible to ascertain the truth of whether the child is being hurt. AR 832. A failure to follow up on inconsistent statements means that the social worker loses an opportunity to determine the truth. AR 832. The requirement of a physical inspection of an injured child enables the social worker to trigger a more detailed medical assessment. AR 834. The requirement that cases be closed within a timeframe ensures that the child is not left at risk for further injury. AR 834.

In 2018, DFCS faced a serious issue of social workers failing to finish cases by the 30-day time limit. AR 846-47, 849. Management and staff spent the year discussing how to address the problem, including alerting managers when a social worker’s investigations were consistently going beyond the timeframe. AR 847-48. DCFS had to bring in a strike force at Kanataryan’s office at one point. AR 871. Nichols considered this department-wide slowdown in weighing Kanataryan’s failure to timely close cases. AR 849.

The Notice of Intent contains the facts on which Nichols relied. AR 820. In reviewing her competency, DCFS asked for a review of ten of her other cases. AR 820. The issues with those ten referrals – delays in investigation, issues with documentation, issues making entries into the case management system, failure to use DCFS tools and forms to structure decision-making and injury assessment, failure to speak to collateral contacts, and leaving cases open too long – mirrored the issues in Damien’s case. AR 821-22. The ten-case review was never adjudicated, and DCFS may not be able to use an uncharged incident as additional discipline. AR 870. DCFS has never issued a disciplinary notice based solely on a ten-case review. AR 870.

This was Kanataryan’s second or third infringement of the policy to follow established rules and regulations. AR 826. The same was true for her (1) inattention to duties that led to improper service; (2) failure to meet job expectations; and (3) failure to exercise sounds judgment. AR 826-28. Some issues are so critical that information must be recorded before the policy deadline. AR 822.

The policy requires contemporaneous notes of contacts in the field because a failed memory can be a problem. AR 857. Despite this policy, Nichols did not ask or consider whether Kanataryan took copious handwritten notes during the interviews. AR 857, 859.

The policy of following up on inconsistent statements about a child’s injury would entail the social worker confronting the person who said one thing after someone else contradicted them. AR 859-60.

Kanataryan’s previous 30-day suspension is the highest level of discipline short of termination or reduction. AR 823. When Nichols saw that she had been suspended before for the same reasons, a discharge or reduction were the only possible remedies. AR 823-24. He did not consider reduction because the issues identified in the ten-case review are critical and he had no confidence that she would be a reliable employee in a lesser position. AR 824. He did not consider input from mid-level managers who might disagree with termination because the case was not in a gray area, and he had a pretty strong opinion. AR 888.

Lynne Bowles Condon (“Condon”) is the DCFS human resources manager who led the Performance Management team that reviewed the Internal Affairs investigation and recommended Kanataryan’s discharge. AR 895, 900-01. Internal Affairs conducted an investigation, and the Internal Affairs report was referred to Condon. She reviewed the report and assigned it to Janelle Gregory, the person acting in charge of the Performance Management team, and they discussed the results. AR 902-03. It was determined very early that Kanataryan should be recommended for discharge, so Condon signed the pertinent document and sent it to Nichols. AR 902.

There is no difference between not performing tasks and not documenting them. AR 928. When it comes to child safety, “if you didn’t document it, it didn’t happen.” AR 928. Even with their heavy workload, social workers find time to log in their contacts; very few of the 4500 CSWs are disciplined for failure to log contacts in their daily log. AR 941. Kanataryan’s failure to log contact information was only one reason why she was discharged. By itself, it probably would not have led to discharge. AR 942.

Armand Montiel (“Montiel”) started as a CSW in 1989. AR 946. He was a CSW predominately at Continuing Services for about five years and is now part of DCFS’s Office of Litigation Management. AR 946-47. Supervisors of CSWs report to the Assistant Regional Administrators. AR 949. Although he was a supervising CSW for eight months, he did not supervise line CSWs; he was part of an audit unit. AR 947-48. Between January 2018 to July 2018, he was the West Los Angeles Office Regional Administrator. AR 954-55.

Between January and July 2018, some DCFS social workers struggled to input case notes within the required 72 hours, and it was quite prevalent that they did not finish cases within 30 days. AR 952-53. A social worker’s number of referrals, difficulty contacting family members, waiting for a law enforcement or medical report, difficulty making collateral contacts can all be reasons why a referral does not close in 30 days. AR 953-54. Sometimes a social worker may not be diligent in their work. AR 954. The cap for caseloads varies depending on the CSW’s assignment, the goal for an ERU CSW’s caseload was 12. AR 955. On average, the ESU social workers were handling between 12 and 20 referrals at any one time. AR 956.

Kanataryan interviewed Father as he initial contact. AR 962. her decision to have Father show her the video from his phone of Damien’s injuries was an appropriate choice. AR 962. She also consulted “The Hub,” a facility at County-USC Medical Center that is part of the Violence Intervention Program. AR 962. She conferred with a nurse practitioner and received the same body chart from HUB that a CSW would need to complete. AR 963.

Father alleged that Joe hit Damien, so Joe was the focus of the investigation. AR 963-64. Kanataryan then spoke to Joe, Mother, Damian’s maternal grandparents, and daycare owner Cici. AR 963. Cici spoke highly of Damien, Joe, and Mother. AR 963. The maternal grandparents also spoke highly of Joe. AR 963. In his view, Kanataryan thoroughly investigated whether Damien was abused and whether Joe was the abuser. AR 964. Because the Hub examiners could not find sufficient evidence of physical abuse, her investigation into Damien’s social and collateral contacts would determine whether there had been physical abuse in his home. AR 964. That is why her interviews of collateral contacts, including her two visits to daycare, were important. AR 964.

Cici never raised concerns about abuse and spoke glowingly about every member of Damien’s family, including Joe. AR 965. The maternal grandparents also had no concerns about Joe or Mother. AR 965. While they knew about Mother’s marijuana use, they did not believe it put Damien at risk. AR 965-66. When Kanataryan visited Mother, Damien was happy and in good health, and he presented no reason for Kanataryan not to believe Mother. AR 966. Mother took Damien that day to Kaiser to see a doctor, who only recommended annual checkups. AR 966.

In the six months that Damien’s case was open, no additional referrals for Damien came in. AR 967. Montiel did not know if Kanataryan ever contacted the social worker on Joe’s other open referral. AR 1017. The other referral came after Damien’s referral, and it would have been the other social worker’s responsibility to contact Kanataryan. AR 1017. As Joe was not a family member and did not live with Damian, DCFS policy only required that Joe be interviewed as the alleged perpetrator, which he was. AR 1035.

Kanataryan’s inconclusive finding was supported by the case notes. AR 967. Kanataryan thoroughly investigated the case and set forth the essential facts to support a disposition of inconclusive. AR 993. There were procedural issues, but they did not impact the disposition. AR 993, 1002. Certain steps in DCFS policy are mandatory, but some matters are within the social worker’s judgment. AR 1019.

A child’s actions – such as lingering around the teacher at the end of the school day -- can be a sign of abuse, but it can also be something else. AR 991. It is important to have an interview with the child to learn what his or her behaviors represent. AR 991. A two-year-old will be limited in the behaviors they display. AR 991. DCFS’s policy that the child be interviewed is not a hard and fast requirement because the department recognizes that some children cannot be meaningfully interviewed. AR 1013. Whether Kanataryan should have woken Damien in the car to interview him is a grey area, in part because she was unlikely to get anything meaningful. AR 1014.

Although Damian slept at Father’s house, everyone else living there was a collateral contact that Kanataryan had discretion not to interview. AR 1015-16.

The purpose of the policy that the CSW examine the child is to determine if the child needs a more intrusive exam. AR 999. When a doctor has already performed the examination – as occurred at Kaiser -- the CSW is not an expert and doing an intrusive exam is redundant. AR 999-1000. Medical exams closer in time to the incident also are more reliable. AR 1030. The Kaiser doctor said that he or she could not conclude one way or the other whether Damien had been abused. AR 1000.

Montiel was never asked formally if he disagreed with the discharge, but he does. AR 969. He also does not consider a CSW being behind in making case notes or in closing cases a justification for discharge; there probably are hundreds of social workers that are behind. AR 970. He admits that Kanataryan never added a body chart to the case file. AR 971. Contacting the reporting party at Kaiser was one of the less important aspects of policy to follow because the Kaiser social worker had no firsthand knowledge except what she was told by the attending physician. AR 1028.

Daphne Huggins (“Huggins”) was a CSW II between July 2018 and June 2019. AR 1048. She quit during her probationary period because she could not do the job according to policy. AR 1049. At DCFS’s request, she has filed paperwork to come back. AR 1049.

Her cases did not close; they just piled up. AR 1052. She estimates that she had over 50 cases at one point. AR 1052. She received emails regularly with a long list of CSWs who were behind on their work; that list kept growing. AR 1061.

Valdovinos was one of her supervisors. AR 1050. When working under him, Huggins had a hard time getting his help or getting him to close a case that she gave him. AR 1050-51. Valdovinos did not hold team meetings on a regular basis. AR 1052.

She had some of her referrals returned for not having a body chart; it was mandatory. AR 1051.

A CSW should examine the child’s behavior, feelings, and tendency to fidget as signs of abuse. AR 1058. It is unlikely that an abused child will be happy-go-lucky. AR 1059.

If a CSW cannot reach the reporting party for a referral, he or she can send a certified letter but does not have to do so. AR 1053-54.

An investigation must have two collateral contacts of persons with daily contact with the child in addition to those persons living in the same house as the child. AR 1054. Interviewing the unmarried boyfriend or girlfriend of a parent is optional. AR 1054-55. If the grandparents are living with the child, the CSW should try to interview them. AR 1055. If they refuse, the CSW should document the reason. AR 1055. If they are just unavailable, a supervisor gives further instructions. AR 1056.

There have been occasions where Huggins could not contact the reporting party until after the case closes and her supervisor accepted that was the best she could do. AR 1057.

Contacting a day care center is not required. AR 1060. Most CSWs are too busy to visit, although they may call the day care center. AR 1060-61.

All CSWs must ask for a police report at the beginning of a case; when the report is received is another matter. AR 1056.

Although some supervisors will strictly enforce the three-day rule for inputting contact notes into the case file, it is standard practice to handwrite notes during a conversation and keep them in the file. AR 1065.

Beginning in 1993, Ahmad Emdad (“Emdad”) has been a CSW for 24 years and part of the ERU for 19 years. AR 1086-87. He has investigated about 2,000 referrals. AR 1089. He was “exiled” from the ERU in December 2017 for being outspoken about “what was going on”. AR 1102.

Although the DCFS policies reflect the practices of the office, it is widely understood by CSWs that they will not be able to follow every step all the time. AR 1090. This includes doing everything a case or referral requires in a timely manner. AR 1091. Emdad and his colleagues were never disciplined for not finishing a case in 30 days, but they would receive automatic notices within 10 to 15 days of the due date. AR 1101-02.

Supervisors normally will not close a case if the CSW has not completed the body chart, and Emdad had cases returned for this failure. AR 1091. It is not common practice when a step like a body chart is completed to enter that fact in the case notes. AR 1092.

If the CSW cannot reach the reporting party after two or three tries, the supervisor will ask them to make a note and sometimes send a non-certified letter. AR 1092-93. Similarly, although it was required to contact two collateral contacts and the reporting party, sometimes that was impossible. AR 1098.

Valdovinos held onto referrals a lot, sometimes for months, such that Emdad was not able to close cases in 30 days when supervised by him. AR 1094-95. Emdad had to send emails sometimes to higher-ups to get him to review Emdad’s referrals and close them. AR 1085.

Valdovinos was her supervisor in ERU from January to April 2018. AR 1116. After that, her supervisor was Blanca “Magallanes”. AR 1116.

There are different types of referrals – five-day, emergency response, and expedited – with different deadlines for the CSW to investigate. AR 1116-17. Each CSW handles all types. AR 1117. The CSW will receive a pop up electronically on CWS/CMS when a referral comes in. AR 1117-18. The supervisor also receives a SCSW copy of the referral. AR 1119.

The referral for Damien was blank, meaning “perp unknown.” AR 1158. At the time of Damien’s referral, the ERU was receiving referrals back-to-back. AR 1121. This pace made it impossible to follow the 72-hour rule for entering contacts, but she kept detailed notes of her contacts. AR 1163-64. She would put the notes in the folder temporarily and destroy them before closing the case, which is a common practice. AR 1165-66.

When Valvinados and Kanataryan met about the case, Valvinados asked her to have a joint visit with the PHN who examined Damien. AR 1127. Joint visits with PHNs often involved children with serious illnesses. AR 1127. The PHN decides whether to attend, and it is up to the supervisors to decide what to do if there is a disagreement. AR 1127.

After Father and Damien returned from the DMV on February 6, 2018, Kanataryan and Father tried waking Damien up five times before Father insisted that he would rather Damien stay asleep. AR 1129, 1131. She still performed a body inspection in that she checked Damien’s face for bruises and found only faint healing discoloration. AR 1130. She also manipulated his shirt to see his belly and chest and rolled up his pants to check his legs, and she found nothing. AR 1130-1131. Kanataryan also knew that the Hub and the PHN had examined Damien. AR 1132. She planned to see Damien again when she visited Mother. AR 1131-32.

Father sent Kanataryan a video of him talking to Damien just after the alleged abuse, saying in Spanish that Joe hit him. AR 1149. When she spoke to Damien and asked if Joe hit him, Damien did not answer. AR 1150. That did not alarm her because she was a stranger to Damien. AR 1150.

She returned to the office and explained to “Indi” how to fill Damien’s body chart, circling the face and writing the observations. AR 1133-34. Kanataryan hole-punched the finished chart and put it in the file. AR 1134. She knew that Valdovinos returned cases for failure to provide the chart. AR 1135. Neither Valdovinos nor Magaña ever told her Damien’s body chart was missing. AR 1139-40. Kanataryan did not fill out another body chart after her joint visit with the PHN. AR 1187.

Valdovinos returned the file towards the end of April 2018, not March. AR 1140. It is standard to ask for a police report and she did so. AR 1140. After Valdovinos returned the file, Kanataryan learned from Police Officer Higa that nobody was being charged or arrested and that she should contact the District Attorney for more information. AR 1140. As an extra step, she also contacted the District Attorney’s office and was informed that there were no arrests or charges. AR 1141.

The lack of a police report carries significant weight in physical abuse cases. AR 1142. By the time she got the police report on June 19, 2018, the case was with the supervisor for review to close. AR 1159, 1196. Officer Higa was the only officer with whom she spoke; she did not speak to the two officers who prepared the report. AR 1197-98.

Kanataryan tried to contact Joe multiple times. AR 1142. Mother said he worked long hours. AR 1142. Eventually, she spoke to him over the phone as collateral contact. AR 1143. She was not required to interview him face-to-face. AR 1143. Joe did not live in the home and was not part of Damien’s daily care, although he did pick up Damien from day care once in a while. AR 1143. She performed a CLETS search on Joe and got no hits. AR 1143. A CACI search revealed a DUI and failure to appear in court. AR 1143-44. Kanataryan did not investigate whether Joe was an appropriate driver for Damien because she did not know at the time that he did so. AR 1157. She never performed a CWS/CMS search. AR 1212.

Father gave her an estimated address for the day care center, but it was wrong. AR 1144-45. Kanataryan looked it up herself and found the right address. AR 1145. Owner Cici had firsthand contact with Damien every day he was there. AR 1145. She did not say anything significant over the phone, but she claimed during Kanataryan’s in-person visit that Damien was a happy-go-lucky child not afraid of going home with anyone or of anything else – not akin to an abused child – but he was clumsy and fell down the stairs a lot. AR 1146, 1152. She also had no concerns of abuse or neglect. AR 1147. By this point, Kanataryan had enough collateral members; she just wanted more. AR 1147.

She received inconsistent statements from Father (who contended that Joe hit Damien), Mother (who said Damien was injured at the day care center) and the day care owner (who said that Damien never was hurt at day care and that in another incident hit his head on a coffee table). AR 1199-1202. These inconsistencies were part of her reason for the inconclusive disposition of the referral. AR 1202.

The maternal grandparents asked Kanataryan if they could talk in person. AR 11151. She met them at their dry-cleaning business where she asked about Mother, Father, and Joe. AR 1151. The grandparents said all three were great and caring. AR 1151. The grandmother also said Damien tends to claim others hit him when they did not. AR 1151. Kanataryan never interviewed paternal grandparents because they were out of the country at first and she became busy as time passed. AR 1153. Her supervisors did not ask her to interview them. AR 1153-54.

Kanataryan solicited advice from her supervisors multiple times throughout the process. AR 1153-54. She also met with County Counsel and Assistant Regional Administrator Richard Miyake (“Miyake”) because no matter how hard she dug, she could not find signs of abuse by any of the adults. AR 1175.

At some point, Kanataryan obtained records from the examining doctor to review them with the Hub nurse practitioner Maria Cochila (“Cochila”) and Hub nurse Ridder. AR 1156. Ridder stated it was a grey area – not enough to validate the abuse, but also not saying there was none. AR 1157. The inconsistency between the parties’ statements was one reason why she talked to so many about it. AR 1221.

Kanataryan never interviewed Joe’s son, Andy B., because she did not know he existed until Damien died. AR 1158-59.

As to the charge that Kanataryan did not make a referral of suspected abuse when she and the PHN visited Mother’s house, she did not suspect that Damien’s new bruise on his forehead was from abuse. AR 1160. He seemed normal as he ate cereal, watched TV, and did not cry or seem scared. AR 1161. He was in a great mood. AR 1162. The bump on his forehead was consistent with Mother’s story that he hit his head on the table. AR 1162, 1219. The PHN still advised taking Damien to the doctor and the Kaiser doctor also found it was an accident. AR 1163.

When Kanataryan received her COC, she refused to sign because she did not agree with it. AR 1166. A group of people in the ERU filed a group grievance over their COCs. AR 1166.

Valvinados was a brand-new supervisor who was nervous, confused, and panicky about closing cases, but it was hard to close cases on time under any supervisor because the CSWs needed more stuff. AR 1177.

At one point, Assistant Regional Administrator Miyake asked to appoint Kanataryan as a mentor in the ERU to help and guide new members. AR 1180. She had about four mentees over six months. AR 1180-81. Indi was one of those mentees, and Kanataryan now regrets not overseeing her work more thoroughly when she prepared the initial January 26, 2018 visit note for Damien. AR 1189. Miyake has also twice given Kanataryan challenging cases, something Valvinados once noticed. AR 1181.

Any discrepancies between her testimony and what she said in her Internal Affairs interview stem from her trauma in learning that a child on her referral had died. AR 1217.

On May 8, 2020, the Hearing Officer issued her proposed decision. AR 185-208. The Hearing Officer noted that Kanataryan’s COC should not be considered because the group grievance against the COCs was not final. AR 203.

The DCFS met its burden in proving that Kanataryan did not (1) completely record each body part examined during the initial contact, (2) completely record all injuries observed during her joint visit with a PHN on May 29, 2018, (3) remove Damien from his car seat during the initial visit to visually examine each part of his body, (4) document the receipt and review of LAPD photos in CMS/CWS, (5) send a certified letter to Kaiser reporting party requesting a response, (6) follow-up with Father about inconsistencies in statements about the cause of Damien’s injuries, (7) attempt to interview Damien privately on either visit, (8) document a request for a joint visit with a PHN or her declination of such a visit before her initial contact with Damien, (9) run a CMS/CWS search on Joe when she knew that Damien accused him in a video, (10) follow up on Joe’s driver license status, (11) find out the frequency with which Joe picked up Damien from daycare, when, and with what vehicle, (12) enter her contact information into CMS/CWS within 72 hours of each of 11 contacts, and (13) enter contacts as standalone entries and instead altered contact entries four times. AR 207.

DCFS had demonstrated that Kanataryn’s (1) failure to follow established rules; (2) carelessness or inattentiveness that resulted in improper service; and (3) work performance below job expectations, standards, or requirements. AR 208. DCFS failed to prove that this conduct was egregious enough to merit discharge, or that it resulted in loss or injury. AR 207. DCFS also did not consider Kanataryan’s oversized caseload and its own failure of supervision. AR 207.

The Hearing Officer concluded that, while DCFS proved Kanataryan’s misconduct, it had not met its burden of proving that discharge was appropriate. AR 207. Kanataryan was not diligent and thorough, but she was not negligent either. AR 207. Because DCFS did not demonstrate that the facts merited discharge, the Hearing Officer recommended a 30-day suspension. AR 208.

On August 5, 2020, DCFS filed objections to the proposed decision, asserting that the Hearing Officer substantially agreed with DCFS’s factual allegations and legal conclusions. AR 118-19. The egregious nature of her repeat conduct made Kanataryan unsuitable for employment, and DCFS had already tried suspension. AR 124-25. The Hearing Officer ignored the harm to the public’s faith in DCFS to properly investigate and document its investigation. AR 125. Unorganized and incomplete files make it harder for DCFS to prove that it is not at fault when a child is injured. AR 127. The Hearing Officer’s conclusion about Kanataryan’s case load were contradicted by the evidence that she had an average number of referrals and some months when she had significantly fewer referrals than average. AR 128. Kanataryan’s attempt to blame her supervisors was an improper effort to shift responsibility and a supervisor failure does not excuse her violations. AR 128. Additionally, any conclusion about her supervisor’s failure was not before the Hearing Officer and not relevant to her actions. AR 128. DCFS asked the Commission strike the Hearing Officer’s second conclusion of law and reinstate discharge as the discipline. AR 129.

On October 14, 2020, the Commission issued a Revised Decision that reinstated the penalty of discharge and dismissed Kanataryan’s appeal. AR 96, 101.

The Revised Decision noted that Kanataryan’s performance evaluations were “competent” from April 2016 through September 2017. AR 97. On September 11, 2015, she was suspended for 30 days for a pattern of (1) missed face-to-face contacts, (2) falsification of contact records, field itineraries, and mileage claims, and (3) insufficient or missing narratives for face-to-face contacts with children. AR 97.

Kanataryn’s May 16, 2018 COC included additional alleged failures to meet contact requirements, but it was not final and could not be relied upon for discipline. AR 97.

Kanataryan did not violate DCFS Procedural Guide 0070-548.10 by failing to examine a sleeping Damien’s bottom and back in a car seat on January 26, 2018 insofar as no harm had been alleged for those parts of his body and various medical professionals had already conducted full physical exams. AR 97.

Kanataryan did complete a body chart afterwards in concert with her trainee and did not violate DCFS Procedural Guide 0070-548.10 for failure to do so. AR 98.

When her trainee prepared the narrative for the January 26, 2018 contact with Damien and Father, Kanataryan only skimmed the contact entry. She should have added (1) an explanation of her decision to allow Damien to sleep in the car seat through the physical examination, and (2) detail every body part examined. AR 98. Both failures violated DCFS Procedural Guide 0400-503.10. AR 98.

Kanataryan did not attempt to interview Damien on January 26, 2018 and should have done so to find out if he was pre-verbal and interview him if possible. AR 98. Even if he later manifested an inability to answer questions, she did not know that. AR 98. This was a violation of DCFS Procedural Guide 0070-529.10 and 0070-548.10. AR 98.

Although LAPD had taken photographs of Damien during its investigation of the physical abuse allegations, Kanataryan did not know this; LAPD Officer Russell Higa (“Higa”) did not tell her about photographs on the phone. AR 98. The photographs obtained are not adequate to ascertain the bruising. AR 98. Kanataryan therefore did not violate DCFS Procedural Guide 0070-548.10 for failure to request the photographs. AR 98.

Kanataryan requested that a PHN conduct a joint visit to Damien’s home on May 29, 2018, but the PHN declined to attend due to Damien’s past medical and forensic exams. AR 98.

When Damien bumped his head just before Kanataryan’s May 29, 2018 visit, she failed to list the new injuries in the CMS/CWS case file in violation of DCFS Procedural Guide 0400-503.10. AR 98.

She again failed to interview Damien in private on May 29, 2018 in violation of DCFS Procedural Guide 0070-529.10 and 0070-548.10, even if in prior visits he would not answer her questions. AR 98.

When Kanataryan first received the referral for Damien on January 22, 2018, she timely tried to call the Kaiser reporting party and multiple times thereafter. AR 98. When that failed, she did not send it a certified letter requesting a response in violation of DCFS Procedural Guide 0070-548.10. AR 99.

Neither Kanataryan’s failure to contact Damien’s paternal grandparents nor her failure to request a copy of the LAPD report until June 2018 were grounds for any policy violations. AR 99. Because Kanataryan received the report on June 19, 2018, she could not know beforehand that Joe had a son named Andy that she should contact. AR 99. She therefore did not neglect to contact Andy. AR 99. Additionally, she satisfied the minimum number of collateral contacts under DCFS Procedural 0070-508.10. AR 99.

Once Kanataryan heard a differing explanation for Damien’s injuries, she failed to follow up with Father about the inconsistent statements. AR 99.

Despite the fact that he was the alleged abuser, Kanataryan failed to perform a CMS/CWS search on Joe in violation of DCFS Procedural Guide 0070-548.10 and 0070-559.10. AR 99. Whether the search would have yielded a record of Andy’s referral is unclear. AR 99.

Although Kanataryan ran a CLETS search on Joe, she did not follow up on his driver’s license status after it revealed his DUI. AR 99. She knew at the time that Joe may be picking up Damien from daycare, but she assumed that he picked Damien up with minimal frequency and not in a car. AR 99. Her failure to check into Joe’s driver’s license status and the nature of his pickup of Damien are violations of DCFS Procedural Guide 0070-548.10. AR 99.

Kanataryan failed to document 11 contacts within the 72-hour deadline, thereby violating DCFS Procedural Guide 0400-503.10. AR 99-100. Although none of her 11 failed contacts appeared in her COC, 11 other social workers have filed grievances for parallel COCs for late documentation of contacts. AR 100.[3] Kanataryan also altered four contact narratives in the referral after inputting them but before the case was closed. AR 100. She violated DCFS Procedural Guide 0400-503.10 in entering contact data more than 72 hours after contact and in altering existing contacts. AR 100.

Kanataryan did not close any of the 24 referrals assigned to her in January 2018 within that month. AR 100. The DCFS assigned her 24 more referrals in February notwithstanding the cap of a 33-referral maximum. AR 100. This overwhelming case load resulted in imperfect casework on the Damien referral. AR 100. Kanataryan’s supervisor closed the Damien referral with the alleged defects.

Kanataryan’s Regional Administrator and Assistant Regional Administrator disagree with the decision to discharge her. AR 100.

The Commission concluded that DCFS met its burden in proving that Kanataryan did not (1) completely record each body part examined during the initial contact, (2) completely record all injuries observed during her joint visit with a PHN on May 29, 2018, (3) remove Damien from his car seat during the initial visit to visually examine each part of his body, (4) document the receipt and review of LAPD photos in CMS/CWS, (5) send a certified letter to Kaiser reporting party requesting a response, (6) follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries, (7) attempt to interview Damien privately on either visit, (8) document requesting a joint visit with a PHN or her declination of such visit before her initial contact with Damien, (9) run a CMS/CWS search on Joe when Damien accused him, (10) follow up on Joe’s driver license status, (11) find out the frequency that Joe picked up Damien from daycare, when, and with what vehicle, (12) enter her contact information into CMS/CWS within 72 hours of each of 11 contacts, and (13) enter contacts as standalone entries but rather changed entries four times. AR 100-01. DCFS therefore met its burden in proving that discharge is the appropriate remedy. AR 101.

On October 29, 2020, the Commission gave notice of the Revised Decision. AR 90. The Commission adopted it as the final decision on July 16, 2021. AR 1-2.

Petitioners Kanataryan and SEIU (collectively, “Kanataryan”) seek administrative mandamus setting aside the Commission’s final decision to discharge her. Petitioners present two issues: (1) four of the Commission’s findings are not supported by substantial evidence; and (2) the penalty of discharge is a manifest abuse of discretion. Petitioners also challenge DCFS’s pattern evidence of ten random referrals.

DCFS’s random review of ten of Kanataryan’s other referrals revealed that she repeatedly failed to comply with policy by failing to enter collateral contacts on a timely basis, thoroughly review DCFS family history, contact the reporting party and pertinent collateral contacts, timely close referrals, and complete body charts. Like Damien’s referral, all ten referrals were open for over 30 days and all ten had contacts entered beyond the 72-hour timeframe. AR 368 (Notice of Intent) 519-64 (screenshots of case notes from ten referrals) 667-69 (Escobar’s testimony on screenshots). Opp. at 3, 10.

Kanataryan disputes this evidence, arguing that it is well-settled law that a public agency must prove, not merely allege, the facts constituting an employee’s alleged misconduct. See Layton v. Merit System Commission, (1976) 60 Cal. App. 3d 58, 64. Both DCFS’s January 22, 2019 Notice of Intent and March 6, 2019 Notice of Discharge alleged the random review showed numerous policy violations. AR 361-73, 375-605. However, DCFS issued both notices in violation of Kanataryan’s rights under Skelly v. State Personnel Board, (“Skelly”) (1975), 15 Cal. 3d 194, by failing to provide the names, files, dates, and case notes of these ten referrals as the basis for the DCFS’s claims. Reply at 3.

At the administrative hearing, DCFS failed to identify the client names associated with these ten referrals or produce the case files and other documents supporting DCFS’s allegations. AR 361-616. Instead, DCFS simply relied upon Escobar’s testimony that she reviewed the ten referral files and allegedly observed a pattern regarding Kanataryan’s referral closures. Reply at 3. Pursuant to California’s secondary evidence rule, with few inapplicable exceptions, “oral testimony is not admissible to prove the content of a writing”. Evid. Code §1523. At state administrative hearings, uncorroborated hearsay cannot constitute the substantial evidence necessary to support an administrative agency’s finding of fact. See The Util. Reform Network v. Pub. Utilities Com., (2014) 223 Cal. App. 4th 945, 959–63. Similarly, the County’s Civil Service Rule (“CSR”) 4.10(B) provides that “[h]earsay evidence may be admitted for any purpose, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Los Angeles County Code, Title 5, Appendix 1, Rule 4.10 B. Escobar’s testimony about what she observed in the referral files and case notes is unvarnished hearsay. Evid. Code §1200 (a)-(b). It should come as no surprise that the Hearing Officer, as well as the Commission, declined to conclude that Kanataryan failed to complete her duties as a CSW when handling the ten referrals. AR 91-5, 185-221. DCFS cannot escape the complete lack of evidence supporting its claim about the random review. Reply at 2-4.

The problem with Kanataryan’s argument is severalfold. First, any Skelly violation in failing to provide the names, files, dates, and case notes of these ten referrals as the basis for the DCFS’s claims is irrelevant. A Skelly violation was not within the scope of the administrative hearing and is not within the scope of Katarayan’s administrative mandamus claim.

Second, and more important, the evidence concerning the ten referrals was not a charge against Kanataryan that was required to be included in the Accusation. Rather, it was evidence that her failures in Damien’s case were part of a pattern. As such, this evidence was admissible, not as a charge, but as evidence of her intent under Evid. Code section 1101(b). Specifically, the pattern was offered to show that her misconduct in Damien’s referral was not an accident or mistake. This is particularly important given Kanataryan’s defense that she and other CSWs in the ERU were overburdened. A failure in handling one referral might be excused by workload burdens, but repeated similar failures tend to show it as inexcusable.

Third, the pattern evidence at the hearing did not consist only of Escobar’s testimony but also of screenshots of the referral files on which Escobar relied to show a pattern. Whether these screenshots were sufficient, or whether additional portions of the ten referrals should have been required for completeness, is an issue Kanataryan could have raised at trial. Kanataryan points to no objection to the screenshots as incomplete, or to any objection about the admissibility of the ten referrals. She cannot object to this evidence for the first time now.

The evidence concerning the ten referrals was admissible to show a pattern of Kanataryan’s misconduct and the absence of accident or innocent mistake.

(2) completely record all injuries observed during her joint visit with a PHN on May 29, 2018;

(3) remove Damien from his car seat during the initial visit to visually examine each part of his body;

(6) follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries;

(8) document requesting a joint visit with a PHN or the PHN’s declination of such visit before her initial contact with Damien;

(11) find out the frequency that Joe picked up Damien from daycare, when, and with what vehicle;

(12) enter her contact information into CMS/CWS within 72 hours of each of 11 contacts; and

(13) leave existing contacts as standalone entries and instead changed them four times. AR 100-01.

Kanataryan disputes the Commission’s findings that she failed to (2) completely record all injuries observed during her joint visit with a PHN on May 29, 2018, (7) attempt to interview Damien privately on either visit, (6) follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries, and (9) run a CMS/CWS search on Joe.

a. Kanataryan Failed to Attempt to Privately Interview Damien on January 26 and May 29

A CSW investigating child abuse allegations must attempt to interview the child separately from the caregiver. DCFS Procedural Guide 0070-529.10, 0070-548.10, 0400-503.10; AR 389-90, 410, 428. The Commission ruled that Kanataryan violated these policies by failing to attempt to interview Damien privately on January 26 and May 29, 2018.

The Commission found that Kanataryan failed to attempt to interview Damien privately on either the January 26 or the May 29 visit. AR 100-01.

Kanataryan points out that she was the only percipient witness who testified about her visits with Damien. For the January 26 visit, she testified that she tried several times to wake Damien to interview him, but he could not be roused. AR 1129-30. Father also tried to wake the child, but Damien refused to wake up and interact with Kanataryan, another CSW, or Father. AR 492-494, 1014, 1129-31. DCFS presented no evidence contradicting Kanataryan’s testimony. Pet. Op. Br. at 12.

Moreover, Kanataryan contacted Damien twice after her initial visit, including on May 29, 2018. AR 501-7, 1149-51. She provided uncontradicted testimony that she interviewed Damien both times, but the two-year-old child (AR 503) was simply unresponsive to her questions. AR 501-08, 1149-51. This is unsurprising given his age. AR 991, 1013-4, 1148-9. No reliable evidence supports any findings that Kanataryan failed to interview, or failed to attempt to interview, Damien on January 26 and May 29, 2018. An employer’s disbelief in an employee’s testimony cannot create evidence to the contrary. See Catricala v. State Pers. Bd., (1974) 43 Cal. App. 3d 642, 650. Pet. Op. Br. at 12-13.

As DCFS argues (Opp. at 6), Kanataryan ignores the Commission’s finding that she failed to attempt to interview Damien privately on either January 26 or May 29. A CSW must interview each child separately from a caregiver, and Kanataryan failed to do so. AR 389-90, 410. On January 26, 2018, Kanataryan never interviewed Damien at all as he was asleep in the car seat during the entire visit. The contact note states that Kanataryan interviewed Father at the car so that Damien could “continue with his nap.” AR 492-93, 1129-31. Kanataryan’s failure to interview Damen – who was 2½, not 2 (AR 502)[4] -- prevented her from properly assessing him and his safety during that initial visit.

On May 29, Kanataryan and PHN Keshishian jointly visited Damien and talked to him at Mother’s home. Kanataryan again failed to privately interview him away from Mother, despite the fact that he had just sustained a new bump on his forehead. AR 507-08, 664-65. PHN Keshishian also observed a “faint linear mark in a vertical fashion next to his left eye” and a “small circular light blue/green mark on his left check.” AR 508. Despite these newly observed injuries, Kanataryan did not interview Damien separately from Mother as required by policy. DCFS argues that Kanataryan’s contact note shows that Mother was in the room the entire time “assisting the minor with the ice pack while talking to CSW and PHN.” AR 507-08. Opp. at 6.

Kanataryan replies that she made contact with Damien at least twice after her initial January visit and interviewed him both times, he was mostly unresponsive to her questions. AR 501-08, 1149-51. Reply at 7, n. 1. She argues that Escobar’s testimony does not support DCFS’s claim that she failed to interview Damien away from Mother on May 29. Escobar was not a percipient witness to the interview, and she merely assumed that Mother must have been present because Kanataryan did not document Mother’s absence in the case notes. Contrary to Condon’s testimony (AR 928), there is no DCFS policy that if something is not documented, then it never happened. See AR 191. (Hearing Officer finding to this effect). Reply at 7. The court agrees. The absence of an affirmative statement in Kanataryan’s case notes that Mother left the room does not mean she was present.

Additionally, Kanataryan argues that her case notes do not state that Mother was present during the May 29 interview. AR 507-08. At most, the case notes are ambiguous about Mother’s presence during the entire time Kanataryan and the PHN interacted with the child. Even if the interview took place in Mother’s presence, DCFS fails to explain how such a slight policy misstep caused any harm to the investigation, the public interest, or DCFS. AR 200-3. Reply at 7-8.

The court agrees that the May 29 case note is ambiguous. There is an inference that Mother was present assisting Damien with the ice pack while Kanataryan and the PHN were talking to him, but it is not conclusively shown from the case notes. The fairest conclusion is that Mother was present for at least part of the interview while caring for Damien.

In sum, Kanataryan’s efforts on the critical January 26 date were insufficient. She was required to wake him and talk to him about his injuries. Kanataryan’s argument that she was not required to interview Damien because he was a non-verbal child is contradicted by the fact that Father reported, and the videos confirmed, that Damien said “Joe hit me”, as well as by other entries in the case notes. The PHN subsequently recorded that Damien “. . . was able to hold a conversation with PHN. Minor spoke about his favorite toy and was excited to show them to CSW and PHN.” AR 507-08. Even if Damien was too young to make a statement, DCFS Procedural Guide section 0400-503.10 required Kanataryan to wake him up during this first visit to observe his “behavior, interactions with others and affect in relationship to their development or chronological age.” AR 436.

Kanataryan also failed to interview Damien on May 29 without Mother present for the entire interview. While this may seem a minor violation, it seems apparent that Mother was wrong when she claimed that Damien’s injuries stemmed from his cousin poking him. AR 508. She may also have been wrong when she claimed that Damien injured himself five minutes earlier by dropping a toy and bumping his forehead on the coffee table. AR 507. While this is hindsight, it illustrates why a CSW must talk to a child without a caretaker present. The caretaker may be the perpetrator or may be an undue influence on the child identifying the perpetrator.

The court’s independent review shows that the Commission’s finding that Kanataryan violated DCFS policies by failing to attempt to interview Damien privately on January 26 and May 29, 2018 is supported by substantial evidence.

b. Kanataryan Failed to Record All Injuries Observed During Her Joint Visit on May 29, 2018

A CSW shall “[d]ocument all observations.” DCFS Procedural Guide 0400-503.10; AR 432. A CSW shall document any observations of injury and complete a body chart if any marks or bruises are observed on the child and that she document the date that a body chart was completed. DCFS Procedural Guide 0070-529.10, 0070-531.10, 0070-548010; AR 391, 400, 401, 414, 432, 1160.

The Commission found that Kantaryan failed to completely record all injuries observed during her joint visit with PHN Keshishian on May 29, 2018. AR 100-01.

Kanataryan notes that DCFS Procedural Guide 0400-503.10 does not specify that a CSW is required to report all new injuries observed where the CSW does not suspect the new injury was a result of abuse. AR 423-38. During the joint visit on May 29, 2018, Kanataryan and PHN Keshishian determined that Damien’s new injury was likely accidental. AR 1161-63. Nevertheless, Kanataryan documented in her notes the injury seen by her. AR 507-09. That she did not describe the injury in the detail of a medical professional is unsurprising and not required. PHN Keshishian prepared a detailed evaluation of the injury and inputted the information in CWS/CMS. AR 507-09. Kanataryan reviewed Keshishian’s entry and concurred with her assessment. AR 1160-04. In essence, the child’s new injury was inputted in CWS/CMS and the Commission’s finding that Kanataryan violated DCFS Procedural Guide 0400-503.10 is meritless. Pet. Op. Br. at 13.

DCFS responds that Kanataryan admitted that she failed to complete a body chart on May 29. AR 1187. She also failed to document any observations of Damien’s new injuries. Rather, her case notes merely provide that Mother said that Damien hit his head on the coffee table and has a bump on his forehead. AR 507. Kanataryan’s note does not indicate that she observed any bump on Damien’s forehead or the bruising on his left eye and left cheek. Opp. at 7-8.

The fact that the PHN, but not Kanataryan, complied with these policies by documenting Damien’s new injuries does not excuse Kanataryan’s policy violation. AR 507-08, 664-65. Nowhere does the policy state that a CSW is exempt from documenting her observations during a contact simply because there is a joint visit with a PHN. They are two different professionals with different skill sets and the fact that PHN Keshishian documented her observations does not excuse Kanataryan from her duty to document her own observations. Opp. at 7-8.

The court agrees with DCFS. While the significance of Kanataryan’s violation of policy is minimized by PHN Keshishian’s observations, Kanataryan nonetheless failed to record Damien’s new injuries on May 29 and prepare a body chart. Substantial evidence supports the Commission’s finding.

A CSW shall complete a CWS/CMS and criminal background check on parents, alleged perpetrators, and adults with significant contact with a child. DCFS Procedural Guide 0070-548.10, 0070-559.10; AR 407, 445.

The Commission found that Knataryan failed to run a CMS/CWS search on Joe after Damien accused him. AR 100-01.

Kanataryan notes that the CSW and SCSW have discretion to decide whom to identify as a person with significant contact with a child or a collateral contact. AR 1016. To find that she violated DCFS Procedural Guide sections 0070-548.10 and 0070-559, DCFS had to establish that Joe either had significant contact with Damien or was the alleged perpetrator of abuse. Pet. Op. Br. at 14.

Kanataryan contends that Joe did not have significant contact with Damien and rather was a collateral contact. He did not live in the same home as Damien and Kanataryan had no indication that Joe had significant contact with Damien. AR 495-501, 515-16, 1035. The evidence only established that Joe occasionally retrieved Damien from childcare. AR 693, 1142-43.[5]

Kanataryan also argues that Joe was never officially identified as a perpetrator. AR 1158. The initial referral states “perp unknown.” The grandmother claimed that Damien had blamed Mother, his grandparents, and Father as hitting him, which Kanataryan interpreted as an unreliable claim. AR 496-501, 1151. In Valdovinos’s March 8, March 9, and April 23, 2018 emails to Kanataryan regarding the investigative steps she needed to take, he did not notify her that she should run a CMS/CSW search on Joe. AR 597-99. As a precaution, Kanataryan completed a CLETS and CACI criminal background check on Joe. Both SCSW Magaña and West LA Assistant Regional Manager Montiel reviewed the Damien referral before closure. If a CWS/CMS search on Joe was necessary, neither should have approved its closure. AR 686-87. Pet. Op. Br. at 13-14.

As DCFS argues (Opp. at 8), the fact that Joe was not listed as an alleged abuser in the referral is irrelevant. DCFS Procedural Guide 0070-548.10 requires an investigation and assessment of all safety threats beyond the initial allegations of the referral. AR 410. The referral was opened because a Kaiser medical professional noted Damien’s injuries and the accusation that Joe, Mother’s boyfriend, had hit Damien. AR 502. During Kanataryn’s initial January 26 visit, Father showed her videos and photographs and said that Damien told him that “Joe slapped him on the face.” AR 492-93. Kanataryan knew that Joe was Mother’s boyfriend. AR 502, 495-96. She knew LAPD was investigating Joe as the perpetrator. AR 509. Kanataryan performed a CLETS search on Joe because she knew he was an alleged perpetrator. AR 660-63, 1143-44. She contacted Officer Higa and the District Attorney to find out the status of their investigation of Joe. AR 509. Yet, she failed to ever perform a CWS/CMS search on Joe. Opp. at 8.

Kanataryan’s admitted failure to perform a CWS/CMS search on Joe is a clear violation of policy and one of the more important of her failures. Had she performed the required CWS/CMS search, and depending on the timing,[6] she may have discovered an open second referral involving allegations of Joe’s neglect and physical abuse of another minor. AR 660–63. Substantial evidence supports the Commission’s finding.

d. Kanataryan’s Investigation Required Her to Follow-Up with Father Regarding Inconsistent Statements

The Commission found that Kanataryan failed to follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries. AR 100-01.

Kanataryan admitted that she received inconsistent statements from Father, Mother, and the day care provider (Cici) regarding Damien’s initial injuries. Father told Kanataryan that Damien said Joe slapped him. Father also said that Mother told him that Damien got injured at day care. Cici denied that Damien ever was injured at day care and advised Kanataryan that Damien said “his father hit him”.

Kanataryan rejects as sophistry any argument that she had to conduct a follow-up interview of Father. While she did not document any follow-up conversation with Father about the inconsistent statements, the insinuation that she did not follow up to determine the origin of Damien’s injury is not well taken. She interviewed Cici at least two times after January 26, 2018, including about Damien’s injuries. AR 1145-47, 492-510. She interviewed Mother, Father, Damien’s maternal grandparents, and Joe. She ran background checks on several of these individuals. She spoke with all the medical professionals about their examination of his initial and later injuries. AR 492-510. She followed up with law enforcement. AR 509-10. Her SCSW never indicated that she should follow up with Father regarding the inconsistent statements. Rather, the SCSW and the Assistant Regional Administrator approved the closure of the referral. AR 686-87. Thus, although Kanataryan did not follow up with Father about the inconsistent statements, she did follow up on the child’s injuries. Pet. Op. Br. at 14-15; Reply at 8-9.

Kanataryan’s arguments about her general investigative effort do not address her failure to follow up on the inconsistent statements, and these inconsistencies were key to the issue of abuse. She never questioned Father about Cici’s denial of injuries at day care or Damien’s statement that “his father” had struck him.[7] When Damien sustained additional injuries in May 2018 and Mother told Kanataryan that he incurred those injuries from his cousin while in Father’s care, Kanataryan never questioned Father about Mother’s contention.

Kanataryan replies that DCFS’s opposition identifies no policy that requires CSWs to reinterview a contact regarding their statements that are inconsistent with those of another contact. There are other methods to determine the reliability of a contact’s hearsay statement, including interviewing other contacts, relying on law enforcement’s investigation, making credibility determinations, and other fact-gathering techniques. A CSW surely fulfills their obligation to follow up on an inconsistent statement by performing one of these investigative techniques. Reply at 8.

True, but Kanataryan admitted that the inconsistencies were part of the reason that the Damien referral was closed as inconclusive. AR 1202. By definition, Kanataryan’s inconclusive finding means that she was unable to ascertain the cause of Damien’s injuries and whether it had been the result of abuse. Additional discussion with Father about the inconsistencies was important for the investigation.

Finally, Kanataryan argues that, if a reinterview of Father was required by policy, then her supervisor’s case plan surely would have reflected the need for her to reinterview him. Yet, Valdovinos never indicated that she should perform this follow-up reinterview. AR 597-99, 778. Reply at 9.

The short answer is that this case is not about the failures of Kanataryan’s supervisors; it is about her failures. Kanataryan can rely on the fact that Valdovinos did not direct her to reinterview Father to some extent, but she had the direct responsibility to ascertain if Damien’s injuries were the result of abuse by a perpetrator. Any failure by her supervisors – and Valdovinos gave way to Magaña approximately halfway through the five-month period that Damien’s case was open -- does not absolve her of that responsibility. Kanataryan’s failure to reinterview Father to evaluate the inconsistencies in the source of Damien’s injuries is part of the reason she recorded the referral as inconclusive.

The Commission’s finding that Kanataryan failed to follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries is supported by substantial evidence.

3. The Commission Did Not Commit a Manifest Abuse of Discretion in Terminating Kanataryan

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18. The penalty should be upheld if there is “any reasonable basis to sustain it”. Montez, supra, 40 Cal.App.5th at 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, supra, 7 Cal.3d at 515.

Kanataryan notes that the discipline imposed must be supported by the evidence, and this is especially important in this case where the County terminated Kanataryan despite mitigating factors. See Magit v. Bd. of Med. Examiners, (1961) 57 Cal. 2d 74, 87.

Between 2018 and 2019, many CSWs were struggling to close referrals in 30 days and had difficulties inputting their contacts within 72 hours. AR 846-49 (Nichols), 952-54, 970 (Montiel), 1050 (Huggins), 1094-95 (Emdad), 1163-64 (Kanataryan). As Regional Administrator Montiel explained, this was due in part to the complexity of the referrals, the CSWs large caseloads, and their difficulties in completing contacts with mandatory and collateral contacts. AR 953-54. DCFS’s management and staff organized work groups to address these issues. AR 847-49. DCFS began hiring more staff and redeploying staff to mitigate these problems. Id. During a year-long discussion between DCFS and SEIU for solutions, DCFS had to send a strike team to the West LA ERU to help close referrals. See AR 871.

Although DCFS had a cap for ERU of 33 open referrals, between January and July 2018 it sought to limit the ERU’s CSWs to 12 open referrals as a best practice. AR 953-55. Yet, the CSWs still were sometimes handling more than the 33-referral cap during the relevant period. AR 582-87, 708, 1052. During the first 30 days of the Damien referral, Kanataryan had 48 open referrals. AR 733. Pet. Op. Br. at 16.

Kanataryan also argues that, between 2016 and 2019, the West LA office’s CSWs were struggling with following policy under Valdovinos because of their excessive caseloads and his poor leadership and advice. AR 1121, 1177. The West LA office eventually developed an understanding that CSWs were not expected to observe all DCFS investigation policies. Regional Administrator Montiel testified that interviewing a child was not always a hard and fast rule, completing all investigative procedures was not necessary to a valid disposition of a referral, and not all policies were mandatory, and some were open to a CSW’s discretion. AR 1002, 1017-19. CSW Huggins and CSW Emdad testified that it was understood in the West LA office that CSWs could not follow all policies in investigating a referral. AR 1053-55, 1089-93, 1100-02. Given the lax enforcement of policies to provide CSWs breathing room to get their work done, Kanataryan’s procedural omissions did not harm the public or warranted her discharge. AR 970, 1002 (Montiel). Pet. Op. Br. at 16-17; Reply at 5.

The heavy workload in the West LA office is a legitimate factor in legitimate. However, it is somewhat undermined by Escobar’s testimony about Kanataryan’s actual caseload. Kanataryan had a normal caseload of 33 new cases per month during the Damien investigation and sometimes less than half of that. AR 669. She did have 48 cases in February 2018 -- half new and half pending – but that was because she did not close any referrals in January 2018. AR 733.

The mitigation also is lessened by Valdovinos’ testimony that Kanataryan had a pattern of poorly managing her time. AR 754. He specifically returned the Damien file to Kanataryan on approximately March 7, 2018 because he had concerns about the case and wanted follow-up. Yet, Kanataryan did not complete any of the five tasks Valdovinos gave her. AR 751. On April 23, 2018, Valdovinos sent an email to Kanataryan stating that she needed to finish the Damien referral. AR 753.

Finally, DCFS’s random review of ten other referrals assigned to Kanataryan revealed that she repeatedly failed to comply with policy by failing to enter collateral contacts on a timely basis, thoroughly review DCFS family history, contact the reporting party and pertinent collateral contacts, close referrals timely, and complete body charts. Like Damien’s, all ten referrals were open for over 30 days and all ten referrals had contacts entered beyond the 72-hour timeframe.

Thus, it is fair to conclude that all CSWs were busy and overworked during the relevant period, and this is a mitigating factor. However, Kanataryan’s negligent failure to do her job properly, both in the Damien referral and on other matters, undermines this mitigation.

Kanataryan notes that her supervisors were ultimately responsible for closing the referrals she investigated. Under DCFS policy, her supervisors would not close her referrals unless she complied with DCFS policy. Yet, Kanataryan’s supervisors approved closure of the Damien referral despite her policy violations. Regional Administrator Montiel testified that she properly investigated the Damien referral and none of her procedural oversights had any bearing on the proper disposition of the matter. AR 962-71, 993-4, 1002. Reply at 5-6, 9-10.

DCFS argues that Kanataryan’s attempt to blame her supervisors for her policy violations is an improper attempt at shifting responsibility. Any alleged improper supervision does not negate the fact that Kanataryan committed multiple policy violations in the Damien referral. Any potential discipline of her supervisors was not before the Hearing Officer. Marino v. City of Los Angeles, (1973) 34 Cal.App.3d 461 (actions of other city employees regarding employee’s improper conduct were irrelevant). Opp. at 13.

This is true for purposes of discipline, but the approval of supervisors and Regional Administrator Montiel’s opinion are relevant to Kanataryan’s knowledge of the significance of her wrongs and their importance. If her supervisors signed off – or in Montiel’s case, approved her investigation after-the-fact – that reflects on the significance of her misconduct. This is mitigating evidence.

Kanataryan argues that there is no evidence that her conduct caused harm to the public service. Her supervisors did not identify any procedural mistakes in her handling of the case and approved the referral’s closure. The Hearing Officer found that Kanataryan’s handling of the referral was not negligent and did not cause the loss of or injury to any person. AR 202-07. In essence, Kanataryan acted in good faith in handling the Damien referral, despite the hurdles she and the rest of the colleagues faced as CSWs. Pet. Op. Br. at 17.

Kanataryn notes that, while many CSWs committed similar policy violations due to the exhausting working conditions and the fact that their supervisors communicated a relaxation of a mandatory duty to follow some of these same policies, these other CSWs have not been disciplined as harshly as Kanataryan. DCFS has not treated these policy violations as harm to the public service.[8] Pet. Op. Br. at 18-19.

Kanataryan’s argument that her conduct did not harm the public is spurious. Kanataryan did not (1) completely record each body part examined during the initial contact, (2) completely record all injuries observed during her joint visit with a PHN on May 29, 2018, (3) remove Damien from his car seat during the initial visit to visually examine each part of his body, (4) document the receipt and review of LAPD photos in CMS/CWS, (5) send a certified letter to Kaiser reporting party requesting a response, (6) follow-up with Father about inconsistencies in statements about the cause of the initially reported injuries, (7) attempt to interview Damien privately on either visit, (8) document requesting a joint visit with a PHN or her declination of such visit before her initial contact with Damien, (9) run a CMS/CWS search on Joe when Damien accused him; (10) follow up on Joe’s driver’s license status, (11) find out the frequency that Joe picked up Damien from daycare, when, and with what vehicle, (12) enter her contact information into CMS/CWS within 72 hours of each of 11 contacts, and (13) change existing contacts as standalone entries four times. AR 100-01.

The harm to the public service from these failures was serious. Some of this misconduct -- such as the documenting failures – may be less important to public harm. However, Kanataryan’s failure to remove Damien from his car seat and inspect his injuries, interview Damien in private on January 26 and May 29, follow-up with Father about inconsistencies, run a CMS/CWS search on Joe, and check Joe’s driver’s license prevented her from determining whether Damien had been abused, and whether Joe was the abuser.

The County correctly takes issue with Karatanyan’s argument that DCFS has made her a scapegoat for the death of Damien. Children get abused through no fault of DCFS and its employees and Karataryan was not a guarantor of Damien’s safety. But there remains the potential for a better outcome from better performance of her job.

Decisionmaker Nichols explained that Kanataryan’s discharge was warranted because her multiple policy violations in missing contacts, incomplete investigation, failure to use sound judgment, and failure to properly document negatively impacted the public’s trust in DFCS to properly investigate and document referrals. AR 817-38. The public’s trust is negatively impacted anytime a County employee fails to comply with a policy intended to protect the safety of children and families. AR 817-18. Her conduct also exposed the County to liability from Damien’s death. “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” Hankla v. Long Beach Civil Service Comm’n, (1995) 34 Cal.App.4th 1216, 1222-1223. Opp. at 11.

The distinction between her failures and those of other CSWs at the ERU lies in her repetitive failures and the fact that her pattern of misconduct shows it was not an innocent mistake. While the County’s purported policy that “if it’s not documented, it didn’t happen” is not a formal one, the point reflects the fact that documentation is important so that DCFS, other professional agencies, and the public can rely upon a CSW’s accurate documentation of a referral. AR 131-32, 928. Courts frequently use and rely upon a CSW’s documentation in a file in child protection cases, family law cases, criminal cases, and civil litigation. Opp. at 11-12.

Even the documentation issues harm the public. The County will not be able to prove that it is not liable for a child’s death when its employees fail to comply with basic policies for timely and complete documentation, interviewing the child separately from his caregiver, and performing a CWS/CMS search on the alleged perpetrator. Karatanyan’s pattern of misconduct prevents the County from defending Karatanyan’s actions or omissions, thereby increasing its potential liability. Opp. at 12.[9]

Ultimately, Karataryan’s policy violations resulted in a loss of trust by the public and other agencies, potential impact on the safety of children and families, and an increase in the potential liability on the part of County, which was a significant harm to the public service.

There is a strong likelihood of recurrence of Karataryan’s policy violations. While County departments are empowered by CSR 18.031 to employ non-progressive discipline, this is a case where progressive discipline was exercised. Karataryan’s discharge falls well within the parameters of each of the charges due to the repetitive and serious nature of her policy violations. Her performance evaluations of merely “competent” over the decade of her service show her to be a marginal employee. On September 11, 2015, she received a 30-day suspension -- the maximum that can be imposed short of discharge (AR 823) -- for a pattern of missed face to face contacts, falsification of contact records, field itineraries, and mileage claims, and insufficient or missing narratives for face-to-face contacts of children. These violations were similar to her misconduct in the Damien referral. AR 382, 823-25. Despite this serious discipline, Kanataryan again failed to comply with policy in her handling of the Damien referral. She also failed to properly handle ten random referrals evaluated by County. Opp. at 12-13.

DCFS argues that Kanataryan attempts to blame others for her misconduct, which demonstrates that she is likely to repeat her behavior if she were returned to employment. She would continue to inadequately investigate child abuse claims and not document contacts. Opp. at 13. Karataryan replies that she has not failed to acknowledge wrongdoing and accountability. She testified that she regrets some parts of the investigation in the Damien case. AR 1164, 1189. Reply at 10.

The likelihood of reoccurrence is not shown by Kanataryan’s reliance on the approval of her supervisors, which is a legitimate mitigating factor. Nor is it a failure to express remorse. Rather, it is her repetitive misconduct as shown by her prior disciplinary case, the Damien case, and the ten random referrals. This repetition demonstrates that Kanataryan is not likely to follow DCFS policy if her employment continues.[10]

Karatayan notes that an administrative agency abuses its discretion when it fails to follow its adopted progressive discipline policy for punishing its employees. Kazensky v. City of Merced, (1998) 65 Cal. App. 4th 44, 73, 76 (listing the steps of escalating penalties under progressive discipline that aims at addressing and rehabilitating an employee’s misconduct, e.g., oral warning, written reprimand, suspension, demotion, and termination).

The County’s Discipline Guidelines require supervisors to assess an employee’s misconduct under a progressive discipline policy while considering mitigating circumstances. AR 477, 488. The Discipline Guidelines direct a supervisor to consider a lesser discipline of a “15 to 30-Day Suspension” for a second substantiated event of an employee “fail[ing] to follow established rules or regulations” and only a third substantiated event permits discharge. AR 478. Similarly, the Discipline Guidelines require the supervisor to consider “a 20 to 30-day Suspension” or reduction in addition to discharge for a second case of “[c]arelessness or inattention to duties resulting in improper service being render to clients, patients, public or impairment of a County function”. AR 483. Even when the County has substantiated an allegation that an employee has for the second time “failed to exercise sound judgment which results in loss of, or injury, or damage to persons or property of the County or of County service,” the Discipline Guidelines expects the decision-makers to consider only a “20 to 30-day Suspension” or reduction. AR 484. Only when there is a third case where the employee has failed to exercise such sound judgment is “discharge or reduction” alone recommended. Id. Pet. Op. Br. at 18, n. 13; Reply at 4-5.

Kanataryn argues that the County failed to follow its progressive discipline policy. During her decade-long career, she received no poor evaluations and was only formally disciplined once. She was entrusted with the most difficult child abuse referrals to investigate because her SCSWs knew she would successfully handle them. AR 795-96, 1181. The West LA office’s Assistant Regional Administrator appointed her as a mentor to help assist and guide ERU trainees. AR 783-4. Pet. Op. Br. at 15-18.

Simply put, as Regional Administrator Montiel made clear, Kanataryan properly and thoroughly investigated the referral and none of her procedural errors had any bearing on the proper disposition of the matter. Relatedly, as the Hearing Officer rightly found, her work was not negligent and caused no loss or injury to the public. Yet, incongruent with the principles of progressive discipline, DCFS did not first attempt to correct Kanataryan’s performance problem or misconduct at the mildest, most effective level of suspension. Rather, with post hoc reasoning and an apparent attempt to offer up a sacrificial lamb in response to the unfortunate passing of a child, the Commission terminated her. Pet. Op. Br. at 19.

Progressive discipline does not aid Kanataryan. She is correct that a decision-maker should consider discharge only for a third offense of a failure to follow established rules or regulations, or where work performance fails to meet job expectations, standards, or requirements. Discipline Guidelines §II.B; AR 478. However, the decison-maker may impose a penalty of discharge for a second offense of carelessness or inattention to duties results in improper service being rendered to clients, patients, or the public, which is the principal reason for disciplining Kanataryan. See Discipline Guidelines §VII.A; AR 483. Moreover, the Discipline Guidelines expressly state that they “are intended as a guide only” and that managerial discretion permits action more or less severe than listed. AR 477.

Decision-maker Nichols did not have to slavishly follow progressive discipline steps where the circumstances warranted greater discipline. Kanataryn had been previously disciplined with a 30-day suspension for quite similar offenses. While she received no poor evaluations in her decade of work, she received no stellar performance evaluations either. The ten random referrals show that she did not simply make mistakes in the Damien referral.

Nichols noted that Kanataryn’s previous 30-day suspension is the highest level of discipline short of termination or reduction. AR 823. When Nichols saw her previous suspension was for the same reasons, he concluded that discharge or reduction were the only possible remedies. AR 823-24. He did not consider reduction because the issues identified in the ten-case review were critical and he had no confidence that she would be a reliable employee in a lesser position. AR 824. As a result, he had a pretty strong opinion that discharge was required. AR 888. Condon at DCFS Human Resources also determined very early that Kanataryn should be discharged. AR 902. DCFS did not fail to follow progressive discipline.

In conclusion, Kanataryan’s misconduct -- which on its face may not appear momentous -- led to serious public harm and is likely to be repeated. Despite the catastrophic consequence of Damien’s death, she probably would not have been discharged if the violations in his referral were her first offense. They were not her first offense; she had a 30-day suspension for similar conduct. The Commission did not commit a manifest abuse of discretion in discharging her.

The Petition is denied. DCFS’s counsel is ordered to prepare a proposed judgment, serve it on Petitioners’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for November 15, 2022, at 1:30 p.m.

[1] The closure is reviewed by the Assistant Regional Administrator. AR 417.

[2] Ridder was a Hub nurse, not a medical doctor. See AR 1156.

[3] Although none of her 11 failed contacts appeared in her COC, 11 other social workers have filed grievances for parallel COCs for late documentation of contacts. AR 100.

[4] Six months makes a big difference in a child that young.

[5] Kanataryan argues that a CSW need not interview a parent’s romantic partner (AR 1054-55), and Regional Administrator Montiel testified that there was no expectation that Kanataryan contact Joe. AR 1035-36. Pet. Op. Br. at 14, n. 9. Actually, Montiel testified that Joe was not a family member and did not live with Damian, and that DCFS policy only required that he be interviewed as the alleged perpetrator, which he was. AR 1035.

[6] Kanataryan argues that DCFS inappropriately claims that she would have discovered a second referral concerning Joe. West LA Office’s Regional Director Montiel testified that the referral regarding Joe and another child came in after the Damien referral. AR 1031. Reply at 10, n. 2. Hence, Kanataryan would only have discovered the second referral concerning Joe if she conducted the search after the second referral and before she closed Damien’s referral.

[7] Kanataryan also never questioned Mother about Joe, about Damien’s contention, or Cici’s denial that Damien was injured at day care, but that is not part of the Commission’s finding.

[8] In 2018, Valdovinos issued Kanataryan a COC for her work performance. AR 203. She correctly argues that DCFS’s MOU with the Union prohibited DCFS from considering the COC in meting out discipline because the Union was grieving the matter. Pet. Op. Br. at 19. Thus, the Commission found that the COC could not be considered. AR 91.

[9] Kanataryan argues that the County cites no evidence of harm to the public and relies only on witnesses’ conclusory claims. Reply at 5. No more is necessary because harm to the public service reasonably may be inferred from the nature and extent of misconduct.

[10] The parties do not directly address the circumstances of the misconduct criterion, but it is incorporated in their other analysis of the other two factors.