Gail Fry | IE Voice News Contributor

On August 29, facing a federal trial in a lawsuit brought by foster/adoptive parents William and Michelle Mueller,  San Bernardino County agreed to a court approved settlement of $7.5 million plus attorney fees rather than have a jury decide whether it and/or its social worker, Deborah Kay, knew of sexual abuse, were negligent, and failed to protect a boy known as E.M. from being sexually abused by his older brother when placed together in foster care. 

The recent $7.5 million settlement resulted from a case filed over four and a half years ago on January 23, 2018, when adoptive parents William and Michelle Mueller alongside adoptive grandfather Michael Dobie, sued San Bernardino County in federal court for multiple civil rights violations, violations of the Federal Adoption and Assistance Act & Child Welfare Act, direct and derivative negligence, and negligent concealment on behalf of a minor child, referred to only as E.M.

Court documents state that on September 13, 2013, two brothers known as C.T. (born in 2003) then ten years old, and his younger brother E.M. (born in 2009) then four years old, were placed in foster care due to mental health, substance abuse, and domestic violence issues in their home. 

As revealed in court records, on or about 2014, prior to placement with adoptive parents William and Michelle Mueller and grandparent Michael Dobie, the younger of the two brothers, E.M. was sexually and physically assaulted while living at a foster home by his older brother C.T.

San Bernardino County agreed to a court approved settlement of $7.5 million plus attorney fees rather than have a jury decide whether it and/or its social worker, Deborah Kay, knew of sexual abuse, were negligent, and failed to protect a boy known as E.M. from being sexually abused by his older brother. (source: twitter.com).

The Muellers detail that in late 2015 and 2016, E.M. reported his physical and sexual assaults by C.T. to San Bernardino County Department of Children & Family Services (CFS) Social Worker Kay. 

This was not the first time C.T. had been reported for inappropriate behavior. The Muellers claim that prior to 2014, C.T. was removed from a foster home for engaging in inappropriate behavior with a female foster child. C.T. was then placed in a male only foster home.

Attorney Eric Rossman verified that C.T. had been abused by his natural parents, and when in a foster home was inappropriate with a female foster child, then placed in a new foster home where he shared a room with his much younger brother E.M. (Gail Fry, Black Voice News)

As a result of this incident, the Muellers assert San Bernardino County, CFS, Kay and other social workers were put on notice of E.M.’s history of being physically and sexually abused.

The Muellers further claimed the county et. al. were negligent, had knowledge and, under the color of state law, Kay concealed this information from them and grandparent Michael Dobie, prior to the brothers’ placement as foster children in their home in 2016. The Muellers claim that before adoption, social worker Kay had monthly visits with C.T. and E.M., and during a visit, Kay warned E.M. not to tell about “their secrets” because he would be removed from the Mueller’s home.  This was confirmed by their attorney Eric Rossman in an interview with the Black Voice News and IE Voice.

Attorney Eric Rossman confirms E.M.’s testimony that he was warned by San Bernardino County Department of Children & Family Services Social worker Deborah Kay not to tell his new adoptive parents that he was being abused by his much older brother C.T. (Gail Fry, Black Voice News)

The Muellers’ expectations

When they applied to become foster parents with the goal of adopting, the Muellers claim they informed San Bernardino County they were unwilling to consider children with sexual abuse or behavioral/emotional issues. 

As confirmed by Rossman, on or about March 20, 2017, the Muellers finalized the adoptions of E.M. and C.T. without knowledge of C.T.’s violent and sexually abusive conduct towards E.M.

Attorney Eric Rossman confirms the statements of foster/adoptive parents William and Michelle Mueller that information about the violent and sexually abusive conduct of E.T. directed toward his younger brother E.M. was withheld from them. (Gail Fry, Black Voice News).

By March 26, 2017, E.M. reported to the Muellers that C.T. was threatening to kill him with a knife and had held it to his neck, reporting that this had happened at prior foster homes.  C.T. admitted these actions to the Muellers. 

The Muellers reported the incident to CFS Social Worker Kay.  Kay told the Muellers she did not want to report the incident and instead recommended therapy for C.T. When the Muellers took action to protect E.M., C.T. attempted to intimidate Michelle Mueller when she corrected him, and twice tried to get into Michelle Mueller’s bedroom where E.M. was being sheltered. 

Next, E.M. told the Muellers that C.T. was hitting him, causing bruising. He subsequently reported sexual abuse, confirmed by the Muellers in C.T.’s journal. C.T. was removed from the home on or about May 11, 2017.  

System Failure

The Muellers allege that San Bernardino County, CFS, and social worker Deborah Kay failed to record, report, and place into the case file documentation of E.T.’s sexual abuse of his brother E.M. As a result C.T. was able to continue abusing E.M.

According to the Muellers, such failure to document, report and file E.T.’s abuse; allowed C.T., a dangerous child, to be placed in their home, damaging them. 

The Muellers accuse the County of San Bernardino of failing in their obligation to ensure the safety of E.M. while he was involuntarily in the foster care system as well as the right not to be raped, sexually, and physically abused.

Administration building San Bernardino County Child and Family Services Building. (source: sbcounty.gov).

Additionally, the Muellers advised how Kay suppressed and destroyed evidence of the physical and sexual abuse suffered by E.M and failed to report or prevent the abuse by allowing E.M. to be in close proximity to his brother/abuser, C.T.  As a result, E.M. suffered severe physical and psychological injury and damages. 

Court documents show E.M. drew pictures of C.T. holding a knife and cutting him, and these pictures were allegedly shown to Kay who, according to the Muellers, removed them from the foster home. 

After reporting his abuse to Kay, E.M. was put on an additional psychotropic medication, Depakote, and Kay purportedly told the boy that he was psychologically unstable, and a bad person. 

The Muellers describe a pattern of San Bernardino County knowingly covering up foster children known to abuse other foster children, creating a danger, identifying a dependent foster child, Rickie F., who sexually abused a younger male foster child, with CFS failing to document or report it, resulted in two other boys being sexually abused. 

They  described the conduct by San Bernardino County as showing a wreckless or callous indifference to the federally protected rights of the Muellers and E.M., asking the court to award punitive damages.

Attorney Eric Rossman explained based on the evidence, it appeared that the San Bernardino County Children and Family Services had ignored, showed indifference to the red flags of abuse in the placement of C.T. and E.M. with foster/adoptive parents William and Michelle Mueller (Gail Fry, Black Voice News).

The county responds

In answer to Mueller’s complaint, the County of San Bernardino admitted E.M. and C.T. were placed in foster care in 2013 and that it is required to protect children it places into foster care. 

It also admitted that children in foster care have the right to live in a safe, healthy and comfortable home and be free from physical and sexual abuse, and that they did not inform the Muellers of E.M.’s history of unreported alleged physical and sexual abuse by C.T.

The county also admitted Kay had monthly visits with E.M. and C.T. while they were in foster care with the Muellers. 

However, the County claimed its employees’ actions were reasonable, done in good faith and without malice or deliberate indifference, giving rise to qualified immunity and/or absolute immunity from suit. 

The County further asserted insufficient knowledge, vaguely worded questions, that other third parties had liability, and that the County is immune from liability for its employees’ misrepresentations among other defenses and denials.    

Attorney Eric Rossman of Rossman Law Group PLLC in Boise, Idaho represented the Muellers and Dobie in their case against the County of San Bernardino. (source: Attorney Eric Rossman).

In preparing for trial, the County of San Bernardino claimed negligence is not enough to prove a due process violation when causing unintended loss of or injury to life, liberty, or property, and the county does not have a duty to protect individuals from third parties, that the state has some responsibility, and social worker Kay had no knowledge of E.M.’s abuse by his older brother C.T. until he was removed from the Muellers’ home. 

The county further claimed none of E.M.’s service providers or any of the dozens of mandated reporters advised Kay, or anyone else at the County, of any suspicion that E.M. was being abused, or that E.M. disclosed he was being abused.   

The County of San Bernardino denied depriving Muellers or E.M. of rights, privileges, and/or immunities secured by the United States Constitution and other laws that caused them damage.

The county claimed it has a policy or practice of documenting, reporting, and preventing physical and sexual abuse, did not fail to train or supervise its employees – Kay or others – and has a policy of keeping siblings together, with no reason not to do so in this case. 

The Muellers and Dobie were represented by lead Attorney Eric S. Rossman and co-counsel attorney John Kristensen.

A link to the website for the Rossman Law Group, PLLC, can be found here: https://rossmanlaw.com/

Attorney John Kristensen of Kristensen, LLP, in Los Angeles served as co-counsel representing the Muellers and Dobie in their case against the County of San Bernardino. (source: Attorney Eric Rossman).

An August 30, press release from one of the Muellers and E.M.’s attorneys, Eric S. Rossman, announced the $7.5 million settlement reached with San Bernardino County.

“[T]he settlement brings closure and justice to the child and his family from this extremely difficult time of their lives,” Attorney Rossman affirmed regarding the settlement. 

“Hopefully, from this settlement and other cases, San Bernardino County will begin taking appropriate steps to correct systemic failures and will better protect children who are placed into its foster care program from physical and sexual abuse,” said Rossman.

“The County agreed to resolve litigation filed by the child and the adoptive parents,” related San Bernardino County Public Information Officer David Wert, reasoning, “While the County has not admitted any liability in this matter, when deciding to resolve litigation the County considers the effects of protracted litigation on children and families.”  The County considers the resolution to be consistent with the well-being of all parties,” Wert concluded. 

In an interview with the Black Voice News, and IE Voice, Rossman opined that the San Bernardino County Department of Children and Family Services is a poorly run department, children are not protected, and the program is not safe for children.

Attorney Eric Rossman expressed his opinion that the San Bernardino County Children and Family Services is a poorly run department of the county, they fail to protect children, and the program is not safe for children even today.. (Gail Fry, Black Voice News)

This article is the first in a series exploring failures by San Bernardino County’s Department of Child and Family Services to protect children entrusted to its care and the millions of dollars in settlement cost to the county as a result. Part 2 will delve deeper into the long and troubled history of this department.

Author

  • Gail Fry is a legal assistant who acted as a self-appointed government watchdog in San Bernardino County during the early 2000s. Over those years she sought public records, was critical of county-paid benefits for state judges, expressed concern over the perceived creative financing for court construction and played a key role in the California Fair Political Practices Commission’s formal warning to former San Bernardino County Sheriff Gary Penrod for violating the Political Reform Act for failing to disclose ownership of several properties over many years. Fry then served eight years as a reporter for The Alpenhorn News, a biweekly newspaper covering the San Bernardino Mountain communities. Fry remains committed in her quest to hold government officials accountable to the people they represent through her articles in Moffatt Media, The IE Voice, Black Voice News and The San Bernardino American News, as well as her work with various law firms on issues she believes will shine a light on government corruption.

Gail Fry

Gail Fry is a legal assistant who acted as a self-appointed government watchdog in San Bernardino County during the early 2000s. Over those years she sought public records, was critical of county-paid benefits for state judges, expressed concern over the perceived creative financing for court construction and played a key role in the California Fair Political Practices Commission’s formal warning to former San Bernardino County Sheriff Gary Penrod for violating the Political Reform Act for failing to disclose ownership of several properties over many years. Fry then served eight years as a reporter for The Alpenhorn News, a biweekly newspaper covering the San Bernardino Mountain communities. Fry remains committed in her quest to hold government officials accountable to the people they represent through her articles in Moffatt Media, The IE Voice, Black Voice News and The San Bernardino American News, as well as her work with various law firms on issues she believes will shine a light on government corruption.