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Court of Appeal:
County Owed No Duty to Notify Relative of Murdered Boy of Custody-Removal Order
Opinion Says Statute Requiring Contact if Child is Removed From Parents’ Care Does Not Trigger Obligation to Great-Grandmother After ‘Authorized’ Removal Order Was Never Executed
By a MetNews Staff Writer
Div. Four of the Court of Appeal for this district held, in an opinion certified for publication yesterday, that a statute providing for the preferential treatment of certain family members in custody matters after a child has been removed from parental care does not create a mandatory duty to notify relatives in the event the minor’s removal has been “authorized” by a court but never executed.
The question arose after the tragic death of four-year-old Noah Cuatro, who was removed from his abusive parents’ custody multiple times before being ordered to return to their Palmdale home, where he was killed in July 2019. His parents, Jose Cuatro Jr. and Ursula Juarez, pled no contest in March to murder charges relating to their son’s death.
At issue is Welfare and Institutions Code §361.3(a) which provides that “[i]n any case in which a child is removed from the physical custody of his or her parents…, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.”
Subdivision (b) specifies that “[t]he county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them.” The section specifically includes great-grandparents as among the relatives entitled to preferential consideration.
Petition to Remove
On May 15, 2019, a caseworker with the Los Angeles County Department of Children and Family Services (“DCFS”) filed a 26-page petition to remove Noah from his parents’ custody after reports of bruising and injuries consistent with sexual abuse. Then-Los Angeles Superior Court Commissioner Steven E. Ipson (now a judge) granted the application “authorizing Noah’s removal” the same day.
The order also mandated a sexual abuse examination.
DCFS never acted on the order and the boy remained in his parents’ care until he was murdered a few months later. The agency never notified Noah’s great-grandmother, Evangelina Hernandez, of the order authorizing removal even though she had taken custody during some of the removal periods.
Hernandez, on behalf of herself and as guardian ad litem for the decedent’s minor siblings, filed a complaint against the county alleging, among other causes of action, that the DCFS was negligent in breaching a duty to notify her that it had applied for, obtained, and failed to execute the warrant to remove Noah Cuatro from his parents’ care.
Mandatory Duty Alleged
The second cause of action in the seventh amended complaint (referred to in the opinion as “7AC”) asserted:
“Had DCFS complied with its mandatory duty to notify Ms. Hernandez of the petition for removal order and the issuance of the removal order for Noah, she would have been able to notify the dependency court that DCFS defied executing the removal order and that Noah did not undergo a mandated forensic sexual abuse exam within 72 hours of the date of the removal order.”
The county filed a demurrer to the second cause of action, arguing that it owed no mandatory duties to Hernandez because §361.3 only required notification in the event that the child is actually removed.
Los Angeles Superior Court Judge Christian R. Gullon overruled the demurrer in May 2024, finding that Hernandez “sufficiently pled that the County allegedly breached the mandatory duty owed to her under…section 361.3.”
Gullon said “had the County done what it was mandated to do—submit Noah to a forensic sexual abuse exam—the results would have revealed that…Noah was sexually abused by his father.”
Under those circumstances, he opined that DCFS would have been obligated to remove the child and Hernandez, as a relative given preferential consideration, “must have been notified of the removal” under the law.
Writ Petition
The county filed a petition for writ review.
Justice Audrey B. Collins authored the opinion, initially filed Nov. 13 and not certified for publication, ordering the issuance of a writ of mandate directing the Superior Court to vacate its order overruling the demurrer to the second cause of action and to issue a new order sustaining the petition. She wrote:
“We…hold that section 361.3 does not impose on the County a mandatory duty to notify a relative who requested preferential consideration for placement of an application for a protective custody warrant…or a court order granting such a warrant prior to the minor’s removal from physical parental custody. We further conclude that none of the other provisions invoked by Hernandez in the 7AC—including the California Department of Social Services Manual of Policies and Procedures for Child Welfare Services…, Civil Code section 1714, and the special relationship doctrine—gives rise to a mandatory duty to notify.”
Presiding Justice Brian S. Currey and Justice Helen Zukin joined in the opinion.
Public Entity Liability
Collins said that “[t]he relevant statutory basis for direct public entity liability is Government Code section 815.6,” which says that “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty.”
She noted that “[a] plaintiff must allege a breach of a mandatory duty to impose direct liability on a public entity under Government Code section 815.6.”
Unpersuaded that §361.3 creates the requisite mandatory duty to notify, Collins wrote:
“The County contends that the first sentence of the statute establishes that it does not apply to the facts alleged in the second cause of action and 7AC generally. We agree….
“The gravamen of the second cause of action is that Noah was not removed from his parents. There are no allegations in the 7AC that Noah was removed from his parents or moved from one placement to another pursuant to the May 15, 2019 application or order. Absent a removal of a child from the physical custody of his or her parents, section 361.3 does not apply. It therefore cannot give rise to a mandatory duty here, regardless of how its remaining language is interpreted.”
Absurd Results Claim
Hernandez argued that this reading is an “extraordinary tortured interpretation” of the section, saying it is “absurd” and “makes no sense to take a child into custody before determining whether the potential new custodian is willing to accept the placement” because “[s]ocial workers would have to place the removed child in some interim ‘holding area’ before and during the assessment.”
Disagreeing, Collins remarked:
“Hernandez does not cite any authority in support of these arguments, and they are not persuasive. The plain language of section 361.3 provides that relatives are given preferential consideration for placement when ‘a child is removed from the physical custody of his or her parents.’ The expression of legislative intent set forth in Welfare and Institutions Code section 16000, subdivision (a) mirrors this unambiguous language, stating, ‘….If a child is removed from the physical custody of his or her parents, preferential consideration shall be given whenever possible to the placement of the child with relatives….’….The 7AC does not allege Noah was removed.”
Considering Hernandez’s contention that Ipson’s May 2019 removal order “equates to a removal and gives rise to the duty to contact,” the jurist concluded that “the 7AC provides no factual allegations from which to conclude that a mandate to remove a child is equivalent to the physical removal of the child.”
Civil Code §1714
Hernandez also asserts that an applicable mandatory duty is created by Civil Code §1714, which provides that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.”
Unconvinced, Collins said that §1714 imposes a general duty of care on a party only if the actor has created a risk of harm to the plaintiff. In this case, she reasoned:
“To the extent the 7AC alleges that Hernandez suffered the loss ‘of the life-long love, companionship, comfort, society, and care of Noah…’ this peril was created by Noah’s parents. The County thus did not have a duty to Hernandez under section 1714 unless an exception to the general rule applied….[such as the] special relationship doctrine….”
Saying that Hernandez did not qualify as a “victim” who had the right to expect protection from DCFS, she agreed with the county that “Hernandez was not the victim; Noah was.”
The case is County of Los Angeles v. Superior Court (Hernandez), B339093.
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