Petition for Writ of Mandate (Judge James C. Chalfant)

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Case Number: 22STCP01225    Hearing Date: August 27, 2024    Dept: 85

 

Rolando Soriano v. County of Los Angeles, et al., 22STCP01225

 

Tentative decision on petition for writ of mandate: denied

Petitioner Rolando Soriano (“Soriano”) petitions for a writ of mandate compelling Respondent County of Los Angeles (“County”), through its Department of Children and Family Services (“DCFS”), to set aside its decision and to remove his name from the Child Abuse Central Index (“CACI”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

  1. Statement of the Case
  2. Petition

Petitioner Soriano filed the Petition against Respondent County on April 5, 2022, alleging administrative, or alternatively traditional, mandamus.  The Petition alleges as follows.

Soriano is listed in the CACI.  Pet., ¶1.  The County’s DCFS was and is responsible for placing Soriano’s name in the CACI.  Pet., ¶2.

Soriano is a nurse who at the relevant time worked as a nurse at a hospital.  He lived with his elderly parents, but he was given room and board to stay in a hotel during all of 2020 to protect them from exposure to COVID. Pet., ¶6.

Soriano and his former wife P.S. (“Mother”) have four children.  Pet., ¶7.  As of June 2021, the four children and their ages were: Child 1 (18-year-old son), Child 2 (17-year-old daughter), Child 3 (16-year-old daughter), and Child 4 (10-year-old daughter).  Pet., ¶8.  Soriano and Mother separated in October 2019 and the four children have lived with Mother primarily since then. Pet., ¶9.

In June 2021, the parents were going through divorce proceedings and the exchanges of the children between them took place at a sheriff’s station.  Pet., ¶10.  On June 15, 2021, Soriano arrived at the sheriff’s station to pick up the children.  Mother would not let him have the children; she came to the station to report that he had sexually assaulted them.  Soriano has not had visitation with his children since that date. Pet., ¶11.

Soriano learned nothing more about the allegation against him until July 2021, when Derek Brandon (“Brandon”), an investigative children’s social worker (“CSW”) employed by DCFS, contacted him at his house. Pet., ¶12. When speaking with Brandon, Soriano denied sexually assaulting his children.  Pet., ¶13.

Later, a law enforcement detective called Soriano on the telephone and asked if he had ever touched Child 3’s breasts while in a hotel room.  Soriano denied the allegation and was given no more details.  Pet., ¶13.

On or about August 5, 2021, CSW Brandon, or another of DCFS’s employees, prepared and mailed a Notice of Child Abuse Central Index Listing (“Notice”) to Soriano. The Notice indicated that DCFS had substantiated an allegation against Soriano of “Sexual Abuse, Assault, Exploitation” of Child 3. The Notice further indicated that the date and location of the abuse was “11/01/2020 Unknown.”  Finally, the Notice indicated that DCFS had submitted Soriano’s name to DOJ for listing in the CACI.  Pet., ¶15.

On or about August 25, 2021, Soriano’s counsel requested a so-called grievance hearing to dispute the listing of his name in the CACI.  Pet., ¶16.  The grievance hearing was held on November 4, 2021.  Pet., ¶17.

The parties presented their cases to a so-called grievance review officer, Melanie Pelayo (“Pelayo”), employed by DCFS.  Pet., ¶19.  DCFS presented evidence and the testimony of CSW Brandon.  Soriano, represented by counsel, presented evidence and his own testimony.  Pet., ¶18.

On a date unknown to Soriano, hearing officer Pelayo issued a recommended decision that the allegation remain substantiated.  Pet., ¶20.  In the recommended decision, under the heading “Applicable Laws and Statutes,” the hearing officer noted the nine distinct crimes that are included in the governing statute’s definition of “sexual assault.” The hearing officer further noted the governing statute’s descriptions of five types of conduct covered in the definition of “sexual abuse.”  Pet., ¶21.  The basis for the recommendation was that Soriano asked Child 3 if her breasts were real, asked to touch them, and then touched them despite Child 3 denying permission to do so. The hearing officers concluded that this evidenced a touching for purposes of sexual gratification.  Pet., ¶22.

On January 7, 2022, DCFS Acting Director Ginger Pryor adopted the recommended decision and issued a Final Decision maintaining the substantiation, which meant that Soriano’s name would remain in the CACI.  Pet., ¶23.  Soriano is not listed in the CACI for any other reason or by any other entity.  Pet., ¶25.

Petitioner Soriano contends that the hearing was unfair because DCFS gave him insufficient notice of the basis for his CACI listing, failed to identify the statute on which the substantiation was based, failed to properly apply the law set forth in the governing statute, and lacked jurisdiction under Penal Code section 11165.9 to investigate the matter and to refer his name to the CACI.  Pet., ¶26.  The decision is not supported by the findings of the hearing officer because it was based on Penal Code section 11165.1(b)(4), which is not a legal basis for a CACI listing, and the findings do not support an order or decision under Penal Code section 11165.1(a). Pet., ¶32.  The findings are not supported by the evidence because the hearing officer gave undue credit to evidence unfavorable to Soriano and improperly discounted other evidence favorable to him.  Pet., ¶33.

Soriano prays for a writ of mandate and such other and further relief as is proper and just, including costs and attorney’s fees.  Pet. at 6.

  1. Course of Proceedings

On May 5, 2022, the County filed its Answer.

  1. Governing Law

The Child Abuse and Neglect Reporting Act (“CANRA”) is set forth in Penal Code[2] sections 11164-74.

  1. Definitions

CANRA defines “child abuse or neglect” as physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse as defined in Penal Code[3] section 11165.1, the willful harming or injuring of a child, the endangering of the person or health of a child, and unlawful corporation punishment or injury.  §11165.6.

As used in CANRA, “sexual abuse” means “sexual assault or sexual exploitation as defined by the following:”

“(a) ’Sexual assault’ means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261 (statutory rape), Section 264.1 (rape in concert), Sectio 285 (incest), Section 286 (sodomy), Section 287 or former Section 288a (oral copulation), subdivision (a) or (b) of, or paragraph (1) of subdivision (c) of, Section 288 (lewd or lascivious ats upon a child), Section 289 (sexual penetration), or Section 647.6 (child molestation). “Sexual assault” for the purposes of this article does not include voluntary conduct in violation of Section 286, 287, or 289, or former Section 288a, if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.”

(b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:

…..

(4) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”

  1. The CACI

In part, the CANRA requires child abuse mandated reporters to report certain types of to report to government officials.  See §§ 11165.7, 11166.  Additionally, the CACI database is part of CANRA. The Department of Justice (“DOJ”) maintains the CACI database, which contains all substantiated reports of child abuse and severe neglect.  §11170(a)(1).  DOJ is only a repository for the reports, and the reporting agency has the responsibility to ensure that reports submitted to the CACI are accurate.  §11170(a)(2).  The listing of a person in the CACI database can affect employment, licenses, and child custody.  See Welf. & Inst. Code §16519.5 (foster care approval process).  Once listed, there is no provision for removing an adult individual’s name from the CACI.  See §11170(a)(3).

Only substantiated reports of child abuse and neglect may be listed in the CACI; unfounded or inconclusive reports may not result in listing.  §11170(a)(1).  CANRA defines a “substantiated report” as “a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred.”  §11165.12.  A substantiated report does not include a report found to be false, inherently improbable, involving accidental injury, or that does not constitute child abuse or neglect as defined in section 11165.6.  §11165.12(b).

CANRA’s definitions have been borrowed almost verbatim from the statutes defining criminal child abuse.  Gonzalez v. Santa Clara County, (“Gonzalez”) (2014) 223 Cal.App.4th 72, 85-86.  The Legislature’s placement of CANRA in the Penal Code governing criminal culpability and prosecution suggests that the statute was addressed to criminal conduct.  Id. at 89.  Thus, CANRA contemplates criminal acts of child abuse before placement of a person in the CACI database.  Id. (citing Planned Parenthood Affiliates v. Van de Kamp, (1986) 181 Cal.App.3d 245, 267).

  1. The Right to an Administrative Hearing

An agency specified in section 11165.9 shall forward to the DOJ a report in writing of every case it investigates or known or suspected child abuse or severe neglect that is determined to be substantiated, other than cases coming within subdivision (b) of Section 11165.2 for “general neglect.”.  §11169(a).  The agency shall also notify in writing, on a DOJ-approved form, the known or suspected child abuser that he or she has been reported to CACI.  §11169(c).  Subject to an inapplicable exemption, any person listed in CACI has a right to a hearing before the agency that requested his or her inclusion in CACI to challenge the listing.  §11169(d).  The hearing shall satisfied due process requirements.  Id.

  1. Standard of Review

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.  The pertinent issues under section 1094.5 are (1) whether the respondent has proceed without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion.  CCP §1094.5(b).  An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  CCP §1094.5(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (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, (1971) 4 Cal.3d 130, 143.  See CCP §194.5(c). Because recordation in CACI as a probable child abuser impinges upon fundamental rights, the superior court must exercise its independent judgment in determining whether the evidence before DCFS established that the report is substantiated.  Saraswati v. County of San Diego, (2011) 202 Cal.App.4th 917, 928.

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.”  Id. 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.  However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  Fukuda v. City of Angels, supra, 20 Cal.4th at 817.

In exercising its independent judgment, the court must accord a strong presumption of correctness to the administrative findings.  Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 817.  The agency’s decision must be based on 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 at 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.  Topanga, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof 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.

  1.  Statement of Facts
  2.  Background

            Soriano and his ex-wife (Mother) were married for 19 years and have four children together.  AR 280.  The oldest is a boy, Child 1, who was 18 years old at the relevant time.  AR 21.  The second oldest is a girl, Child 2, who was 16 years old.  AR 22.  The third child is a girl, Minor, who was 15 years old.  AR 22.  The youngest child is a girl, Child 4, who was 10 years old.  AR 22.  Soriano has worked as a registered nurse for 20 years at Kaiser, and is an ordained minister.  AR 279, 309.

            Soriano and Mother separated in October 2019.  About a year-and-a-half into their divorce, Mother and the kids lived together in the County while Soriano lived in San Bernardino at his parents’ home.  AR 12.  The kids would visit Soriano two weekends a month, from Friday to Sunday.  AR 288.  When he exercised overnight visitation with the kids, Soriano would take them to a Hilton hotel where they all stayed together in one room.  AR 12, 291-2.  He stayed in a hotel because his elderly parents have respiratory issues and during the pandemic they were really scared to have the children there.  AR 299.  He had nowhere else to take the kids.  AR 299.  Mother had no concerns regarding Soriano’s care of the children when they were with him.  AR  269.

  1.  The Referral

            On June 15, 2021, DCFS received a call through its Child Protection Hotline that Minor, age 16, was sexually abused by her father, Soriano.  AR 324. The referral noted that Minor had revealed that, during her last visit with Soriano in December 2020, she was changing into her pajamas and not wearing a bra when he asked her: “Are those real?”  He was referring to her breasts and asked if he could touch them.  Id. Minor told Soriano that he could not do so.  Id.  Soriano poked Minor on the side of her right breast anyway.  Id.

  1.  The DCFS Investigation

CSW Brandon was assigned to investigate potential sexual abuse.  AR 1.  On June 18, 2021, he traveled to Minor’s residence to investigate the referral.  There was nobody home and he left his business card for the family to contact him.  AR 1.

            On June 25, 2021, CSW Brandon spoke with Mother, who stated that she could not meet that day because of a scheduled court hearing regarding Soriano’s visitation with the children.  AR 1-2.  She reported that Soriano tried to get her arrested recently because he had not seen his daughters.  AR 2.  Mother reported that her daughters refused to go back to Soriano, and they have been with her for the past six months.  Id.  Her daughters did not want to see Soriano and she was trying to protect her daughters from him.  Id.  Mother stated that Minor had expressed concerning issues about Soriano and she did not feel his home was safe. Id.

            On June 28, 2021, Brandon met with Mother, who reported that Child 2 and Minor have not seen Soriano in over six months.  AR 3.  Mother reported that law enforcement had been called multiple times because Soriano said Mother was holding the children and not allowing visitation. AR 3.  Law enforcement came to the home and threatened to arrest her and the children if she did not comply with the visitation order.  Id.  Minor then disclosed the incident to Mother as the reason for refusing to see Soriano.  Id.  Mother reported the incident to LASD’s Walnut Station. AR 4.

            Mother reported that her daughters have felt uncomfortable with Soriano since the incident and have consistently stated they no longer want to visit him.  Id.  The children were scared to speak about the incident due to Soriano’s reaction. Id.  Mother stated that she had not seen any history of sexual abuse and that this was an isolated incident. Id.  She “did not believe father was sexually grooming [Minor]” but “it was inappropriate as their daughter did not give him consent to touch her.”  AR 4.

            On June 28, 2021, CSW Brandon spoke privately with each of the children.  AR 6.  Minor reported feeling safe at home with Mother but did not feel safe with Soriano.  Id. Minor did not appear to be fearful or hesitant to speak with CSW Brandon and denied being told what to say by either parent.  Id.  Minor stated that she felt uncomfortable and uneasy with Soriano as he lives in multiple hotels.  Id.  In November 2021, she and her siblings were visiting Soriano in a hotel.  Id.  Minor had finished showering and was dressing in a shirt and underwear when Soriano noticed her changing.  Id.  He asked: “Are your boobs real?” He then asked: “Can I touch them?” Id. Minor declined his request to touch her breasts.  Id.  Soriano approached her anyway and poked her breasts with his fingers.  Id.  He had never touched her in this manner.  Id.  Minor is still upset at him for touching her without consent.  Id.  She was so upset that she isolated herself and did not want to tell anyone.  Id.  She does not like to cry and gets upset when she cries.  Id.  She thought she could get over the incident, but it was still affecting her sleep.  Id.  All her siblings were in the room when it happened, and they are all scared of Soriano.  Id.  She stated: “I think it’s better if my dad is completely removed from my life.” Id.

            CSW Brandon met with Child 2, age 17.  AR 7.  She did not appear fearful or hesitant to speak with him and denied being told what to say by either parent.  Id.  Child 2 stated that she witnessed the incident between her sister (Minor) and Soriano.  Id.  She saw her sister in the room when Soriano asked Minor if he could touch her boob.  Id.  She heard Minor say “no” and saw Soriano poke Minor’s breasts anyway.  AR 7.  She did not think it was sexual, but it was very awkward and uncomfortable afterwards. Id.  She and her siblings no longer wanted to see Soriano because of the incident. Id.

            CSW Brandon met with Child 4, age 10.  AR 8. The child denied being told what to say by either parent.  Id.  She was present but did not see what occurred between Soriano and Minor at the hotel.  Id.  She only heard the conversation wherein Soriano asked Minor if he could touch her boobs.  Id.  After the incident, she and all her siblings felt uncomfortable.  Id.  She felt traumatized, is scared of Soriano, and does not want to visit him.  Id.  She wished Soriano would be more truthful. Id.

            CSW Brandon met with Child 1, an adult.  AR  9.  Child 1 appeared nervous and uneasy during the interview.  Id.  He denied being told what to say by either parent.  Id.  He stated that he was present but did not see the incident.  Id.  He heard Minor refuse Soriano’s request to touch her breast.  Id.  He knew his sisters saw the incident because they told him afterwards.  Id.  He did observe Minor looking very uncomfortable after the incident.  Id.

            On June 29, 2021, CSW Brandon met with Soriano.  AR 12.  Soriano denied sexual abuse and denied touching Minor’s breast.  AR 12.   He “denied ever touching his daughter’s breast “out of pleasure or touching her breast in a joking manner.”  AR 12.     Soriano stated that he could not “recall” if he ever asked to touch Minor’s breasts.  Id.

            CSW Brandon noted that Soriano appeared hesitant and confused when asked if his other children were in the room when the incident occurred.  AR 12.  He said that he talked to his children about their body development and may have asked or commented to Minor something about her breast development, which is not outside his role as a father.  AR 12.  He could not remember a time in which he ever asked Minor about her breast development.  Id.  He stated that the incident might have been misinterpreted by Child 2 “out of jealousy” because he would show more attention to Minor’s breast development than that of Child 2.  Id.  He stated that he would never touch his children inappropriately without asking for consent.  Id.

            Based on the information gathered during the investigation, CSW Bandon concluded the sexual abuse allegation was substantiated.  AR 25, 28-29.

  1.      The CACI Notice

            On or about August 5, 2021, DCFS prepared a Notice of Child Abuse Central Index Listing form (“Notice”) and mailed it to Soriano.  AR 43.  The Notice indicated that DCFS substantiated the allegation of Soriano’s “sexual abuse, assault, exploitation” of Minor on “November 1, 2020” at an “unknown” location.  AR 43.          

  1.  The Private Investigator’s Report

            Soriano’s counsel had a private investigator, Christina Duran, investigate.  AR 88.  On June 19, 2021, Duran spoke to Child 1.  AR 88.  Child 1 said that Soriano’s daughters did not like being stuck in the hotel room with everyone together and did not like being at their grandparents’ house either.  AR 88-9.  His sisters also are uncomfortable at Mother’s house because Mother’s boyfriend lives in the house.  AR 89.

            On June 15, 2021, Mother asked the two older girls why they did not want to visit Soriano.  AR 89.  Minor first answered: “I don’t know, I just don’t want to go.”  AR 89.  Mother “encouraged [Minor] to speak up and say something.”  AR 89.  Minor then said she was poked on “her boob.”  AR 89.  Child 1 said he did not see Soriano poke Minor but it seems his other two sisters did.  AR 9.  Minor did not “seem concerned about the poking incident, but Mother “made a big scene out of it.”  AR 89.  Minor “did not want to make the police report”, but Mother told the children: “Your father is a child molester.”  AR 89.  Child 1 said that Mother “hates” Soriano and he (Child 1) “believes that his mother is trying to ruin his father’s life.”  AR 89.

  1.  The Reodique Declaration

            Soriano submitted a declaration from his girlfriend, Minle Reodique (“Reodique”) executed on August 28, 2021.  AR 203-06. Reodique witnessed on many occasions the interaction between Soriano and his children, “always laughing and enjoying each other’s company.”  AR 204.  Reodique saw the attitudes and demeanor of Child 2 and Minor change, and they treated Soriano disrespectfully and lied.  AR 204.  Reodique and her then five-year-old daughter spent time with Soriano and his kids “every time they stayed” at the Hilton.  AR 205.

        Reodique stated that on September 24, 2021[4] she overheard a phone call between Soriano and Child 1, with Minor added to the call.  AR 205.  Soriano explained that he cared about Minor and asked if she believed he did any intentional harm, if he touched her inappropriately, and she said “no”.  AR 205.   She said that “the visitations are just inconvenient” and this was the only way to get out of them.   AR 205.  Minor stated that she thought he would only “go to jail for one month”.  AR 205.  She agreed to speak with a private investigator to “come clean” but later changed her mind because she did not want Mother to get in trouble.  AR 205-6.

  1.      The Grievance Hearing

            On August 25, 2021, Soriano requested a grievance hearing.  AR 44.  The grievance hearing was held on November 4, 2021, conducted by DCFS hearing officer Pelayo.  AR 239.  Soriano’s exhibits included declarations of his good character.  AR 55.

  1. Soriano

            In October 2020, Sorianobegan a dating relationship with Reodique.  AR 279.

            As his teenage girls began puberty, he had to tell them not to walk around in front of him or their brother wearing just a shirt and panties, but to also wear a bra and shorts.  AR 292.  This is a conversation he had more particularly with Minor.  Minor’s relationship with Soriano was such that she would tell Soriano when she needed a new bra.  AR 294.

            Every time the kids visited him, they would all stay at the same hotel with Reodique and her five year-old daughter.  AR 301-02.  Soriano never asked his daughter if her breasts were real or if he could touch them.  AR 295, 303.  He has never touched his daughter’s breasts.  AR 295.  He did not recall an incident in a hotel room with the kids when Minor came out of the bathroom not wearing a bra.  AR 300.  After he moved out of the family household, he had never talked to Minor about her physical development.  AR 301.  He did make comments about the appropriateness of what she was wearing.  AR 301.  The only time Soriano mentioned Minor’s breasts was in discussing either buying or wearing a bra.  AR 308.

            The teenagers had other activities they wanted to participate in over the weekends, and their visits with Soriano interfered with those plans.  AR 289.   At no point from November 2020 to June 14, 2021 did any of the kids tell Soriano or Mother that they saw Soriano touch Minor’s boob, heard him ask to touch her breasts, or ask her if her breasts were real.  AR 292.

  1. Brandon

            CSW Brandon testified that he interviewed Mother, Child 1, Child 2, Minor, Child 4, and Soriano. AR 245.  He testified about these interviews consistently with his report. AR 1-12, 245-78.

            Brandon referred Soriano’s name to the DOJ for inclusion in the CACI based on a violation of Penal Code section 11165.1.  AR 244.  On cross-examination, he clarified that he substantiated abuse on the grounds of “the intentional of the [sic] touching of genitals or intimate parts including the breast…for purposes of sexual arousal…except that…it does not include acts which may….reasonable be construed to be normal caretaker responsibility and interactions with or demonstrations of affection for the child or as performead for a valild medical purpose.”  AR 276.

            On August 4, 2021, Brandon learned from law enforcement Detective Johnson that the criminal investigation would be transferred to San Bernardino County because that is where the the incident allegedly occurred.  AR 273.

  1. Closing Argument

            Prior to the hearing, Soriano objected that DCFS had not identified the precise sexual abuse on which it was relying.  AR 62-3.  In closing argument, DCFS for the first time indicated that allegation was based on a violation of section 647.6 (annoying or molesting a child), which PC section 11165.1(a) identifies as an offense within the category of sexual abuse.  AR 312.  DCFS seemed to argue that Soriano’s alleged question to Minor of whether her breasts were real qualified as sexual abuse under section 647.6.  AR 313, 319-20.  DCFS argued that a father asking his teenage daughter whether her breasts are real is inappropriate and therefore sexual abuse.  AR319-20.  DCFS conceded that “it is appropriate for a parent to talk about the child…a child’s development.”  AR 322.

            Soriano argued that DCFS had not proved the elements of section 647.6 as set forth in the California Criminal Jury Instructions.  AR315-6.  Soriano further argued that, under section 11165.9, DCFS lacked jurisdiction to refer his name to the CACI on August 5, 2021 because CSW Brandon had learned a day earlier that the alleged incident of abuse occurred in San Bernardino County.  AR 318-9.

  1.  The Decision

            On January 7, 2022, Grievance Review Officer Pelayo issued a recommended decision confirming the substantiation of sexual abuse. AR 324-32.  Pursuant to section 11165.1, the intentional touching of intimate body parts — including the breasts — for purposes of sexual gratification is sexual abuse.  Id.

            Based on the information obtained during the hearing, there was sufficient evidence that Soriano sexually abused Minor pursuant to the reporting requirements of CANRA.  AR 331.  Soriano asked Minor if her breasts were natural and if he could touch them. Id. When she told him no, he poked her breast anyway.  Id.  He was not asking as a medical professional inquiring about development as he claimed.   He was asking his daughter if they were “real”, indicating that he had some sort of interest and/or surprise at the size of his daughter’s breasts.  Id. Minor expressed how upset and uncomfortable she was regarding the incident.  Id.  Any parent looking at his daughter’s breasts, clearly analyzing them for any amount of time, would likely be in an uncomfortable situation.   Id.  Adding to that a sexual comment and touching moves the situation from uncomfortable to an abusive one.  Id.

            The actions of Soriano could not be anything other than an intentional act of sexual abuse, especially when Minor told him that he could not touch her breasts and he did so anyway.  AR 332.  Also, his inappropriate comments about Minor’s breasts, and whether they were real, were sexual. Id.

            The DCFS Acting Director adopted the recommendation in its entirety. AR 333.

  1. Analysis

            Petitioner Soriano contends that DCFS (1) findings are not supported by the evidence, (2) the decision is not supported by the findings, (3 did not act in the manner required by law because it misinterpreted section 11165.1, (4) violated due process by lack of proper notice, and (5) acted in excess of its jurisdiction.

  1. The Findings Are Supported by the Evidence

Soriano points to five findings in the hearing officer’s[5] decision: (1) Soriano claimed he touched Minor’s breast “as a medical professional inquiring about development.”  AR 331; (2) “[A]sking his daughter if [her] breasts are ‘real’…indicates [Soriano] had some sort of interest and/or surprise at the size of his daughter’s breasts.”  AR 331; (3) “[T]he actions of [Soriano] cannot be considered as anything other than an intentional act of sexual abuse, especially when his daughter told him that he could not touch her breasts and he did so anyway.  Furthermore, the inappropriate comments by a father about his daughter’s breasts and whether they were real, as described in this incident, is sexual.”  AR 332; (4) Soriano poked Minor’s breast “for purposes of sexual gratification.”  AR 331; and (5) DCFS did not prove that Soriano violated section  647.6.  Pet. Op. Br at 10-12.

Of these, the last is not a finding at all.   The hearing officer did not mention a charge of section 647.6 (child molestation or annoyance).  See AR 331-32.

Soriano misinterprets the first finding, which is “Mr. Soriano was not asking [Minor] about her breasts as a medical professional inquiring about development, as he testified.”  AR 331.  This finding merely rebuts any suggestion that he was talking to Minor about her development.  Soriano told CSW Brandon that he would talk to his children about their body development and may have asked or commented to Minor something about her breast development, which is not outside his role as a father.  AR 12.  The hearing officers correctly concluded that his inquiry about her breasts was not within the scope of a father’s role.

The second hearing officer finding is that asking his daughter if her breasts were real indicates Soriano’s interest and/or surprise at the size of his daughter’s breasts.  AR 331.  This is certainly true and is not undermined by Soriano’s argument that a father could ask his teenage daughter if her breasts were real for reasons of disappointment, concern, surprise, to tease or joke, or to annoy.  Soriano’s argument that there is no evidence that he had an interest or surprise at the size of Minor’s breasts because they had stayed at the same hotel every two weekends for months is spurious.  He may not have noticed her breasts previously without a bra on, but he was surely expressing interest and surprise when he saw them that date.

Soriano’s only significant quibble with the findings is that the hearing officer found that his actions cannot be considered as anything other than an intentional act of sexual abuse, especially when he made inappropriate comments about whether his daughter’s breasts were real and then touched them even though she told him he could not do so.   The hearing officers found, therefore, that Soriano poked Minor’s breast “for purposes of sexual gratification.”  AR 331.

Soriano argues that a father asking his daughter whether her breasts are real is not necessarily sexual.             Sexual offenses are most commonly committed in private where the perpetrator will not get caught.  This incident occurred in a hotel room where Minor’s teenage siblings (along with Reodique and her five year-old daughter) were present.  None of them claimed to hear Minor effectively say: “Dad!  Why did you do that!?  I told you not to touch me.  I can’t believe you poked my boob when I told you not to!”  The evidence hints at no reaction by Minor at all.  These circumstances suggest that Petitioner did not touch Minor’s breast.

            Not so.  The evidence is overwhelming that Soriano did touch Minor’s breast over her objection.  Every Child said as much, even Child 1 who did not see it but heard Minor refuse Soriano’s request to touch her breast, knew that his sisters saw the incident because they told him afterwards, and also observed Minor looking very uncomfortable after the incident.  AR 9.

            Soriano then argues that, even if he did poke Minor’s breast, the circumstances suggest a reason other than sexual gratification.  A more reasonable conclusion is that he did so to teach Minor a lesson: “don’t walk around without a bra on, with me and your brother here.”  The evidence suggests it was done because he felt awkward and uncomfortable with his daughter being dressed as she was in front of him and his son, and he acted in a way to guarantee she would not do it again by making her feel uncomfortable with it.  Child 1 did not view this as a sexual act, and he relayed to a private investigator that Minor “does not seem concerned about the poking incident,” “did not want to make the police report,” and does not think Soriano “is a pervert.”  AR 89.   There is no evidence Petitioner’s questions or poking of the breast were for purposes of sexual gratification.  Pet. Op. Br. at 12.

            Unfortunately for Soriano, he did not testify that he touched Minor’s breast to teach her a lesson.  Rather, he falsely testified that he has never touched his daughter’s breasts (AR 295) and that he did not recall an incident in a hotel room with the kids when Minor came out of the bathroom not wearing a bra.  AR 300.  He also denied to CSW Brandon that he touched Minor’s breast, whether out of pleasure or in a joking manner.  AR 12.

While there is some support for the notion that poking a daughter’s breast in a roomful of people is not necessarily sexual, one need only look at the children’s reactions to see that it was.  After the incident, Minor told CSW Brandon that she did not feel safe with Soriano.  Id.  She was still upset at him for touching her without consent. Id.  She was so upset that she isolated herself and did not want to tell anyone.  Id.  She thought she could get over the incident, but it was still affecting her sleep.  AR 6.  She stated: “I think it’s better if my dad is completely removed from my life.” Id.

            Child 2 witnessed the incident between her sister (Minor) and Soriano.  AR 7.  She did not think it was sexual, but it was very awkward and uncomfortable afterwards. Id.  She and her siblings no longer wanted to see Soriano because of the incident.  Id.

            Child 4 heard the conversation wherein Soriano asked Minor if he could touch her boobs.  AR 8.  After the incident, she and all her siblings felt uncomfortable.  Id.  She felt traumatized, is scared of Soriano, and does not want to visit him.  Id.

            Even Child 1, who supports Soriano, observed Minor looking very uncomfortable after the incident.  AR 9.

             These very strong reactions show that the children understood both that what Soriano did was wrong and that it had a sexual component.  It is difficult to separate one from the other.  While perhaps not a traditionally deviant act, it was sufficient to satisfy the requirement of sexual gratification.[6]

  1.  The Proper Interpretation of Section 11165.1

CANRA defines “child abuse or neglect” to include sexual abuse as defined in section 11165.1.  §11165.6.

In turn, section 11165.1 states that “sexual abuse” means “sexual assault or sexual exploitation as defined by the following:”

“(a) ’Sexual assault’ means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261 (statutory rape), Section 264.1 (rape in concert), Sectio 285 (incest), Section 286 (sodomy), Section 287 or former Section 288a (oral copulation), subdivision (a) or (b) of, or paragraph (1) of subdivision (c) of, Section 288 (lewd or lascivious ats upon a child), Section 289 (sexual penetration), or Section 647.6 (child molestation). “Sexual assault” for the purposes of this article does not include voluntary conduct in violation of Section 286, 287, or 289, or former Section 288a, if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.”

(b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:

…..

(4) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”

CANRA’s definitions have been borrowed almost verbatim from the statutes defining criminal child abuse.  Gonzalez, supra, 223 Cal.App.4th at 85-86.  The Legislature’s placement of CANRA in the Penal Code governing criminal culpability and prosecution suggests that the statute was addressed to criminal conduct.  Id. at 89.  Thus, CANRA contemplates criminal acts of child abuse before placement of a person in the CACI database. Id. (citing Planned Parenthood Affiliates v. Van de Kamp, (1986) 181 Cal.App.3d 245, 267).

Soriano notes that the hearing officer did not expressly identify section 11165.1(b)(4) as the basis for placing him in CACI, but that is the only ground on which the decision could be based.  The court agrees.

Soriano’s principal argument is that section 11165.1(b) is a definitional statute, meaning that it is a subdivision that defines “child abuse or neglect” as meant in section 11165.6.  He argues that the terms in section 11165.1(b) do not define “child abuse or neglect” and therefore it is not a legal basis for a CACI listing.  Pet. Op. Br. at 13.

Soriano argues that section 11165.1 divides “sexual abuse” into three subcategories: sexual assault (§11165.1(a)), sexual exploitation (§11165.1(c)), and commercial sexual exploitation (§11165.1(d)).  The question is what role does section 11165.1(b) play in the statutory scheme?  Soriano argues that the definition of sexual assault in section 11165.1(b) is ambiguous in that it is unclear whether it is included in the definition of sexual assault for purposes of reporting to the CACI.  Pet. Op. Br. at 13.

Section 11165.1(a) specifies nine separate sexual assault crimes by reference to their Penal Code provisions that are included in the CANRA definition of the “child abuse or neglect.”  Several of them do not constitute “sexual assault” if they are consensual acts between a minor who is at least 16 years old and an adult who is younger than 21 years old.  Thus, voluntary intercourse between a seventeen-year-old and an eighteen-year-old (i.e., statutory rape) is not “sexual assault” for purposes of the CANRA and the same is true for sodomy, oral copulation, and sexual penetration.  The crime “lewd or lascivious acts upon a child” meets the definition of “sexual assault” depending on age.  Pet. OP. Br. at 14.

Section 11165.1(a) does not refer to or include sections 243.4 (sexual battery) and 243.4(e)(1) (touching an intimate part of another person for the purpose of sexual arousal when done against that person’s will).  In other words, a violation of section 243.4(e)(1) does not, by itself, subject an individual to a CACI listing under section 11165.1(a).

Soriano argues that section 11165.1(b) is more expansive, describing a variety of sexual conduct in very broad strokes.  None of its paragraphs limit the ages of the participants nor refer to the consent (or lack thereof) of the participants.  It also includes a clarifying note for subdivision (b)(4), the intentional touching of genitals or intimate parts, that “normal caretaker responsibilities” and “interactions with, or demonstrations of affection” are not “conduct described as ‘sexual assault.’”

Section 11165.4(b)(4) uses language similar to that of section 243.4 (e)(1), except that section 11165.1(b)(4) does not use the language “against the will of the person touched.”  That is, § 11165.1(b)(4) covers the same, and possibly even more, conduct than section 243.4(e)(1).

Is the conduct described in both section 243.4(e)(1) and section 11165.1(b)(4) punishable by a CACI listing?  It is not included in section 11165.1(a), but DCFS’s interpretation of section 11165.1(b) says it is.  Soriano disagrees.  Pet. Op. Br. at 15.

In construing a statute, a court must ascertain the intent of the legislature so as to effectuate the purpose of the law.  Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 724.  The court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage.  Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724.  Significance, if possible, is attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.   Orange County Employees Assn. v. County of Orange, (1991) 234 Cal.App.3d 833, 841.  The statutory language must be harmonized with provisions relating to the same subject matter to the extent possible.  Id.  “’The statute’s words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

            If a statute is ambiguous and susceptible to more than one reasonable interpretation, the court may resort to extrinsic aids, including principles of construction and legislative history.  MacIsaac v. Waste Management Collection & Recycling, Inc., (2005) 134 Cal.App.4th 1076, 1082 (quoting Riverview Fire Protection Dist. v. Workers’ Comp. Appeals Bd., (1994) 23 Cal.App.4th 1120, 1126).

Where ambiguity still remains, the court should consider “reason, practicality, and common sense.”  Id. at 1084.  This requires consideration of the statute’s purpose, the evils to be remedied, public policy, and contemporaneous administrative construction.  MCI, supra, 28 Cal.App.5th at 643.  The enactment must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity.  Lungren v. Deukmejian, (1988) 45 Cal. 3d 727, 735.  Finally, statutes are not construed in isolation and every statute must be read and harmonized with the statutory scheme.  People v. Ledesma, (1997) 16 Cal.4th 90, 95.

Soriano concludes that section 11165.1(b) is ambiguous.  He notes that an exception to the general rule that statutes should be interpreted by their plain meaning exists for situations where a literal construction would frustrate the purpose of the statute or produce absurd consequences.” Smith v. Selma Community Hospital, (2010) 188 Cal.App.4th 1, 21 (citations omitted).  “Courts determine the apparent intent of the Legislature by reading the ambiguous language in light of the statutory scheme rather than reading it in isolation.”  Id.  at 21. Reply at 3.

Soriano claims without citation that CANRA went into effect in 1963 to inform child abuse mandated reporters about the type of conduct they were required to report to government officials.  This is CANRA’s first and primary purpose.  In 1965, CANRA was amended to create the CACI as an investigatory tool for law enforcement so that those found to have committed child abuse could be identified by law enforcement throughout the state.  The CACI is CANRA’s secondary purpose.  It is these dual purposes — and figuring out which sections of the CANRA further which purpose — that has caused the confusion with respect to how section 11165.1(b) should be applied.  Pet. Op. Br. at 17.

He argues that the most reasonable reading of section 11165.1 (b) is that it was intended to inform mandated reporters of the type of conduct they should watch for and report.  Section 11166 requires mandated reporters to report conduct they reasonably suspect to be child abuse or neglect.  That the statute requires only a “reasonable suspicion” of abuse indicates the legislature’s commonsense understanding that most mandated reporters are not law enforcement officers, nor lawyers, and may not know the elements of a crime.  The legislature anticipated mandated reporters may report conduct that is not in fact child abuse and preferred that they over-report than under-report.  Whether or not reported conduct turns out to be child abuse is to be decided by a responsible government official, not the mandated reporter.  Therein lies the distinction between subdivisions (a) and (b) of section 11165.1.   Subdivision (b) speaks to mandated reporters to help them know the kinds of conduct to report while subdivision (a) speaks to government officials responsible for deciding whether reported conduct meets the definition of child abuse or neglect.  Pet. Op. Br. at 17-18.

Soriano does not rely on any legislative history and moves to canons of statutory construction to interpret section 11165.1(b).  Soriano first relies on the principle of in pari materia — statutes relating to the same subject matter should be construed together.  Droeger v. Friedman, Sloan & Ross, (1991) 54 Cal.3d 26, 50-51.  Pet. Op. Br. at 15.

Section 11165.6 specifies four categories of abuse or neglect that subject a perpetrator to a CACI listing: sexual abuse (§11165.1), physical abuse (§§ 11165.3, 11165.4), mental abuse (§11165.3), and severe neglect (§§ 11165.2(a), 11165.3).  Each of the sections in these four categories begins similarly.  Section 11165.1 states: “As used in this article, ‘sexual abuse’ means….”  Section 11165.2(a) states: “As used in this article, ‘neglect’ means….”  Section 11165.3 states: “As used in this article, ‘the willful harming or injuring of a child or the endangering of the person or health of a child,’ means….”  Section 11165.4 states: “As used in this article, ‘unlawful corporal punishment or injury’ means….” (emphasis added).  Soriano asserts that the word “means” in these statutes denotes language that establishes a definition of child abuse, the commission of which subjects one to a CACI listing.  Pet. Op. Br. at 16.

In contrast, section 11165.1(b) begins: “Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following….”  Soriano argues that a reasonable explanation for the difference is that section 11165.1(b) is not a definitional statute for “child abuse or neglect,” and therefore none of its paragraphs serve as an independent basis for a CACI listing.  Consequently, the phrase “Conduct described…includes” in section 11165.1(b) does not indicate that the statute is defining an act of child abuse that subjects one to a CACI listing.  Pet. Op. Br. at 16; Reply at 2.

Soriano also argues that courts will also give greater weight to the statute that most recently took effect.  “At the time a statute is enacted, it may have a range of plausible meanings.  Over time, however, subsequent acts can shape or focus those meanings….[A] statute may be altered by the implications of a later statute.”  FDA v. Brown & Williamson Tobacco Corp., (2000) 529 U.S. 120, 143.  Section 11165.1(a) was most recently amended in 2021, when its final sentence was added to limit certain types of crimes from the definition of sexual assault: “‘Sexual assault’ for the purposes of this article does not include voluntary conduct in violation of Section 286, 287, or 289, or former Section 288a, if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.”  Pet. Op. Br. at 17.

The Legislature’s recent amendment of subdivision (a) conflicts with an interpretation of subdivision (b) that would turn each of its paragraphs into stand-alone offenses warranting inclusion in the CACI.  Section 11165.1(b) describes various types of conduct, much of which is already covered in section 11165.1(a).  Each paragraph in section 11165.1(b) describes conduct broader and more inclusive than in section 11165.1 (a).  Section 11165.1(b)(1) pairs with sections 261.5 and 286.  Section 11165.1(b)(2) pairs with section 287.  Section 11165.1(b)(3) pairs with section 289.  Section 11165.1(b)(4) pairs with section 243.4(e)(1).  Section 11165.1(b)(5) does not pair with any specific crime, but the conduct described is covered in section 647.6(a).   Pet. Op. Br. at 17.

Soriano argues that the legislature’s exclusion from section 11165.1(a) of the sex crime defined in section 243(e)(1) demonstrates its intent to exclude the commission of that crime from the definition of “child abuse or neglect” as defined in section 11165.6 under the canon of statutory construction expressio unius est exclusio alterius (“the express mention of one thing excludes all others”).  Pet. Op. Br. at 18.

Additionally, interpreting section 11165.1(b) to set forth sexual assaults for purposes of a CACI listing would violate the rule of construction that courts “do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.”  Shoemaker v. Myers, (1990) 52 Cal.3d 1, 22.  Every crime listed in section 11165.1(a) is covered in the conduct described in section 11165.1(b).  If each paragraph of section 11165.1(b) constitutes a basis for a CACI listing, then section 11165.1 (a) would be meaningless surplusage.  Pet. Op. Br. at 19.

The court agrees with Soriano – and disagrees with the County (Opp. at 12) — that section 11165.1 is ambiguous.  However, Soriano ignores the prefatory language in section 11165.1, which states: “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following…” (emphasis added). The statute then sets for a subdivision (a) and (b) for this definition.  Subdivision (a) provides a definition of sexual assault, subdivision (b) provides that sexual assault “includes, but is not limited to” five examples, subdivision (c) defines “sexual exploitation”, and subdivision (e) defines “commercial exploitation.  Under this framework, it is hard to see how section 11165.1(b)(4) — which concerns “[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child…for purposes of sexual arousal or gratification, is not sexual assault — and therefore sexual abuse, requiring listing on CACI under sections 11165.6 and 11169.  Opp. at 12-13.

The expansive nature of section 11165.1(b), including the “but not limited to” language of examples, indicates that the Legislature wanted to include more than the limited crimes in section 11165.1(a) for CACI listing.  As the County argues, the Legislature expressly stated its intent: “The intent and purpose of this article is to protect children from abuse and neglect.” §11164(b).   Soriano’s argument is inconsistent with this protective purpose.  He also provides no support for his theory that section 11165.1(b) was intended to educate mandated reporters on what type of conduct to report.  If the Legislature wanted to limit section 11165.1(b) to mandated reporters, it could have said so.

Additionally, the County correctly points out (Opp. at 13-14) that CANRA specifically contemplates what types of conduct should not be reported to DOJ.  Section 11169(a) states that an agency shall forward to the DOJ a report in writing of every case it investigates or known or suspected child abuse or severe neglect that is determined to be substantiated, other than cases coming within (b) of Section 11165.2. Subdivision 11165.2(b) governs “neglect.” Other than neglect, every substantiated child abuse case is a “CACI-able” offense.  If the Legislature contemplated that conduct within section 11165.1(b) would be reported, it would have included section 11165.1(b) in section 11169(a)’s exclusions of reportable offenses.

The court concludes that the proper interpretation of section 11165.1 is that subdivision (a) defines criminal offenses within the definition of sexual assault (absent certain voluntary conduct) and that subdivision (b) provides examples of conduct that qualify as sexual assault.  One of those examples is the equivalent of a section 243(e)(1) violation and is reportable for CACI.

This interpretation addresses each of Soriano’s rules of construction.  His reliance on the principle of in pari materia is met by the fact that he ignores the prefatory language of section 11165.1.  His argument about the section 11165.1(a) amendment in 2021  is met by the fact that section 1165.1(b) is a list of examples and not intended as a list of statutory offenses.  Finally, his arguments about expressio unius est exclusio alterius and the purported superfluous nature of section 11165.1(a) are addressed by the fact that section 11165.1(b) is descriptive and does not list crimes.

  1. The Due Process Issues
  2. Deficient Notice

Soriano argues that DCFS did not proceed in the manner required by law because its notice was deficient.[7]

Due process is a “flexible concept” and the safeguards necessary under specific circumstances vary.  Ryan v. California Interscholastic Federation-San Diego Section, (2001) 94 Cal.App.4th 1048, 1072.) “Elasticity” is required to “tailor the process to the particular need.”  Id.  When the government seeks to deprive a person of property, it must at a minimum provide notice and an opportunity to be heard.  Beaudreau v. Superior Court, (“Beaudreau”) (1975) 14 Cal.3d 448, 458; Krontz v. City of San Diego, (2006) 136 Cal.App.4th 1126, 1141.

In California, the specific process required in a particular circumstance generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  People v. Ramirez, (“Ramirez”) (1979) 25 Cal.3d 260, 269.  Except for the additional “dignitary interest” factor, this balancing test is nearly identical to the one articulated by the United States Supreme Court in Mathews v. Eldridge, (“Mathews”) (1976) 424 U.S. 319, 335.  “Thus we must look to and weigh the various interests at stake before deciding what procedures are constitutionally required.”  Saleeby v. State Bar, (1985) 39 Cal.3d 547, 565.

Soriano does not cite any case authority for the due process required in a CACI case, contending there is none.  He relies on the due process notice required for a public employee discharge, Brown v. State Personnel Bd., (“Brown”) (1985) 166 Cal.App.3d 1151, 1164, n. 5, and for a licensure suspension case, Manning v. Watson, (1952) 108 Cal.App.2d 705, 710-11.  Pet. Op. Br. at 19.  The court will assume that due process law for notice in a public employee or licensure discipline equally applies to listing on the CACI.

The Notice received by Soriano stated that DCFS substantiated the allegation of Soriano’s “sexual abuse, assault, exploitation” of Minor on “November 1, 2020” at an “unknown” location.  AR 43.  Soriano notes that the Notice cited no Penal Code provision violated and did not describe the act or omission alleged to have been committed.  He concludes that the notice was deficient under the due process clauses of the California and federal Constitutions and section 11169(d).  Pet. Op. Br. at 20.  In closing arguments at the hearing, DCFS’s counsel argued that the legal basis for the CACI listing was section 647.6 (annoying or molesting a child). AR 312.  The hearing officers based their decision on section 11165.1(b)(4).  That the Notice was broad enough to cover or accomodate two very different statutes demonstrates its deficiency.  Reply at 3.

Soriano relies on Brown, which states that “‘[d]ue process…requires that the respondent be given adequate notice both of the claimed legal standard and the events which are alleged to contravene it and an opportunity to challenge them.  Where the cause alleged has potential application to a broad range of conduct, such as unprofessional conduct, the events alleged to contravene the charge do more than allege what must be proved.  They also provide criteria by which the charge is narrowed.’ 166 Cal.App.3d at 1164, n. 5.

The court agrees that the Notice received by Soriano relied on a broad reference to “sexual abuse” without articulating a specific crime listed in section 11165.1 is inadequate.  See id.

However, a due process violation requires a showing of prejudice.  Krontz v. City of San Diego, (2006) 136 Cal.App.4th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice).  Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation.  People v. Belton, (1992) 6 Cal.App.4th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay).

Soriano makes no showing of prejudice from the defective Notice.  The facts of the allegation are simple and discrete: whether Soriano commented on and touched his daughter’s breast in a room full of his children after she denied him permission to do so.  He was interviewed by CSW Brandon on June 29, 2021, and Brandon informed him of the “referral allegations and the referral investigation process”.  AR 12.  Brandon asked questions about the allegation and Soriano denied touching Minor’s breast.  Brandon hired a private investigator and also was well aware of his children’s position on the matter.  He knew all the facts and he knew the allegation was sexual abuse.

The only issue unresolved was which sexual abuse provision in section 11165.1 applied.  CSW Brandon testified that he referred Soriano’s name to the DOJ for inclusion in the CACI based on a violation of Penal Code section 11165.1.  AR 244.  On cross-examination, he clarified that he substantiated abuse on the grounds of “the intentional of the [sic] touching of genitals or intimate parts including the breast…for purposes of sexual arousal….”  AR 276.  This is a reference to section 11165.1(b)(4).  Soriano’s counsel argued in closing that DCFS’s counsel was wrong about section 647.6 and that his conduct was not otherwise sexual under section 11165.1.  AR 315-16.  Soriano has not shown actual prejudice from the Notice’s failure to identify section 11165.1(b)(4).

  1. Substantiation for a Different Reason Than in the Notice

Soriano also argues that DCFS violated due process because it upheld the substantiation on a different factual basis than in the Notice.  “When an agency relies on a charge not included in the notice, due process is violated because the notice does not fully inform the employee of the grounds for the proposed removal and deprives the employee of an opportunity to make an informed response before the agency takes disciplinary action.”  Do v. Dept. of Housing and Urban Development, (Fed. Cir. 2019) 913 F.3d 1089, 1094.  Nor may a final decisionmaker, in reviewing an agency decision, “substitute what it considers to be a better basis for [agency action] than what was identified by the agency” in its initial decision.  O’Keefe v. US Postal Service, (Fed Cir. 2002) 318 F.3d 1310, 1315.  “[I]t is an abuse of discretion to exceed the scope of the charge and specifications listed in a Notice.”  Coy v. Dept. of Treasury, (Fed. Cir. 2022) 43 F.4th 1334, 1330-40.   Pet. Op. Br. at 21.

The Notice to Soriano indicated that the substantiation was based on “Sexual Abuse, Assault, Exploitation.”  AR 58.  Soriano argues that DCFS upheld the substantiated finding based on legal positions and factual assertions different than those presented in the Notice.  The hearing officer recommended the substantiation be upheld based on section 11165.1(b)(4), which is neither sexual assault nor exploitation.  AR 331.  DCFS did not have discretion to maintain the CACI listing for a reason other than that listed in the notice.  Pet. Op. Br. at 21.

In Doe v. University of Southern California, (“Doe”) (2016) 246 Cal.App.4th 221, a private university investigated whether a student committed a sexual assault.  The investigators led the accused student to believe that the only issue was whether sexual contact with Jane Row was consensual.  Id. at 241.  They did not inform him that they were investigating whether the accused student encouraged other students’ slaps of the female victim or if she was in danger after the accused left the room.  Id. Because the student was sanctioned based on activities about which he was never informed might be the cause for sanctions, he did not receive the notice required of a fair hearing under CCP section 1094.5(b).  Id. at 244.  Pet. Op. Br. at 21.

In Rodgers v. State Personnel Board, (“Rodgers”) (2022) 83 Cal.App.5th 1, correctional sergeant employed by the Department of Corrections and Rehabilitation (“CDCR”) was the subject of a disciplinary action.  Id. at 3-4.  The notice of the disciplinary action (NOAA) indicated that he had violated four subdivisions of Government Code section 19572, stating the factual basis for each allegation.  The administrative law judge concluded that Rodgers had violated all four subdivisions, “but for a different reason than alleged in the NOAA.”  Id. at 2. (italics in original).  The appellate court held: “Because the ALJ found he engaged in significantly different conduct than that alleged in the NOAA, we conclude he lacked notice such conduct could subject him to the full penalty proposed in the NOAA.”  Id. at 10.  Pet. Op. Br. at 21-22.

Soriano concludes that the hearing officer’s decision infringed on his due process right because her reason for upholding the substantiation differed so greatly from the reason given in the Notice.  Pet. Op. Br. at 22.

Soriano fails to explain how the hearing officer decision differed from the Notice.  The Notice stated that the substantiated abuse consisted of, inter alia, sexual abuse.  As discussed, the “sexual abuse” warranting placement on the CACI is defined in section 11165.1.  Although the hearing officer did not cite section 11165.1(b)(4), she decided that Soriano violated that provision (as Soriano admits).  Therefore, the hearing officer did not find substantiation of his placement on CACI for a different reason than given in the Notice.  Doe and Rodgers are distinguishable as cases in which the decision-maker found a different violation than the charge given to the accused.  The hearing officer’s decision substantiated that Soriano committed sexual abuse, exactly what the Notice stated.

  1. DCFS Did Not Exceed Its Jurisdiction

Soriano argues that DCFS lacked geographic jurisdiction as required by section 11165.9.  Soriano notes that a person is liable for criminal offenses committed within the state, and the jurisdiction for the offense is in any competent court within “within the jurisdictional territory” of its commission.   §777.  For child abandonment and child abduction, jurisdiction can be had in the territory in which a child victim resides or is cared for (see §§ 777a, 784.5), but for child abuse and neglect the territorial jurisdiction is the location in which the offense is committed.  Pet. Op. Br. at 22.

Soriano argues that CANRA’s purpose is to create a list of those who have committed crimes of abuse or severe neglect against children.  See Planned Parenthood Affiliates v. Van de Kamp, (1986) 181 Cal.App.3d 245, 267  (The reporting laws “contemplate criminal acts”).  Section 11165.9 requires an agency (such as a police department, sheriff’s department, county welfare department) that receives a report of suspected child abuse or neglect and “lacks subject matter or geographical jurisdiction to investigate the reported case” to “immediately refer the case…to an agency with proper jurisdiction.”  Pet. Op. Br. at 22.

Soriano concludes that DCFS knew the alleged offense took place outside its jurisdiction at the time it referred Soriano’s name to DOJ for listing in the CACI.  AR 43, 273.   DCFS had no jurisdiction (or power) to act except as dictated by section 11165.9.  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 288.  DCFS’s decision substantiating the allegation of sexual abuse should be set aside for lack of jurisdiction.  Pet. Op. Br. at 23.

Section 11165.9 concerns the report of suspected child abuse or neglect by mandated reporters to law enforcement and welfare agencies.  All such agencies must accept the report, even those without subject matter or geographical jurisdiction to investigate.  Id.  Agencies that lack jurisdiction shall immediately refer to case to an agency with proper jurisdiction.  Id.

Section 11165.9 says nothing about what the proper jurisdiction is, leaving the matter to other statutes.  Soriano’s reliance on section 777, which refers to the jurisdiction for criminal offenses, is inapt.  While San Bernardino was the proper county for the investigation of any crime occurring in the hotel room, that does not mean that DCFS did not have jurisdiction under CANRA.

DCFS’s opposition points out that reports of possible abuse, neglect, or exploitation of children are made to its Child Protection Hotline (CPH).  The first criteria for assigning the referral is the child’s location of residence.  DCFS Policy 0050-504.05.  There is no dispute that Minor’s residence was in the County, which prompted DCFS to investigate.  Opp. at 15.

Soriano replies that DCFS Policy 0050-504.05 does not trump statute nor confer jurisdiction over a CACI matter.  Reply at 3.  True, but Soriano still does not show that DCFS lacked jurisdiction to determine the CACI issue.  Minor lived in the County.  Soriano also resided in the City of Walnut (AR 12), which also is in the County.  The County may not have jurisdiction over a crime committed in San Bernardino County, but it has jurisdiction over its residents.

  1. Conclusion

The Petition is denied.  Respondent County’s counsel is ordered to prepare a proposed judgment, serve them on Soriano’s 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 and writ along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for September 26, 2024 at 9:30 a.m.

[1] The court authorized Soriano’s counsel to file an over-sized opening brief so long as his two briefs did not exceed 25 pages in total.

[2] All further statutory references are to the Penal Code unless otherwise stated.

[3] All  further statutory references are to the Penal Code unless otherwise stated.

[4] It is unclear how Reodique could overhear a conversation on September 24, 2021 for a declaration signed almost a month earlier.

[5] For convenience, the court will refer to the hearing officer’s recommendation and not the DCFS decision.

[6] Although Soriano contends that the decision is not supported by the findings (Pet. Op. Br. at 12-13), this argument is based on the evidence supporting the findings and statutory interpretation issue addressed post.

[7] Although Soriano also refers to the fair trial requirement of CCP section 1094.5(b), issues of notice are generally analyzed under principles of due process, which is expressly required under section 11169(d).