County failed repeatedly to stop sexual abuse of foster children, lawsuit alleges

When a 6-year-old boy identified as A.G. in court records told his social worker in January 2006 that his foster father was hurting him, she dismissed his request for a new home.

When staff members at a family recovery center saw A.G. acting out sexually in 2007 and told the county they suspected his foster father was abusing him, the county did not intervene.

When San Diego County sheriff’s deputies in 2008 took A.G. to the county’s emergency shelter for children after an incident involving a neighbor child, A.G. told social workers that he was being sexually abused. He was returned to his foster father, Michael Jarome Hayes, within 18 hours.

Those lapses are alleged in a 2016 lawsuit by A.G. and his twin brother, M.G. They are suing the county and 14 of its social workers for leaving them at Hayes’ mercy despite more than a dozen reports of suspected abuse from an educator, a lawyer, a psychologist and others.

County social workers allegedly ignored some reports completely. They failed to properly investigate others, deciding again and again to the keep the children in Hayes’ home, according to the lawsuit.

According to the lawsuit, the abuse only stopped in 2013 — more than seven years after the boy’s first complaint — when San Diego police officers responded to Hayes’ own report that A.G. ran away.

Hayes was later arrested and faced 28 felony charges of sexual molestation and other crimes against A.G., M.G., another foster son the county had placed in Hayes’ care and two of Hayes’ young cousins.

Hayes pleaded guilty to eight of the charges, admitting to specific lewd acts including putting his hands and mouth on three of the boys’ feet for sexual arousal and touching A.G.’s genitals.

A.G. and M.G. are now adults, battling the phantoms of their childhood. What went wrong? Why did no one listen? How did Hayes end up as a foster parent in the first place?

A two-month review of court records and police reports and interviews with foster care experts and people involved in the lawsuit suggested a series of lapses.

The twins were apparently placed with Hayes despite complaints regarding a former foster child. Then, despite numerous reports of suspected child abuse, the county sent two more children to live with A.G. in the two-bedroom apartment Hayes shared with his adult brother.

Social workers were not vigilant about monitoring the foster home for signs of trouble, and red flags were not met with swift, aggressive intervention. They did not believe the boys’ disclosures of abuse, or their mother, whom the lawsuit claims social workers called a liar and a drug-addict when she tried to tell them Hayes was mistreating her son. One of the social workers named in the lawsuit had a criminal record and pleaded guilty to charges of possessing cocaine.

County officials declined to comment on the case. In response to a series of questions about repeated alleged failures by the county — and what was being done to prevent similar events — Board of Supervisors Chairman Kristin Gaspar released a statement.

“As you know, this case is in litigation so we cannot comment on case details,” she said. “The county takes the safety and welfare of all children placed in foster care extremely seriously. We remain committed to ensuring every child is placed in a stable and healthy environment.”

By the book

Hayes is now serving a 20-year, 8-month prison sentence at the California Institution for Men in Chino.

Asked about county oversight of his years as a foster parent, Hayes said in a telephone interview, “They came out every month. They came by unannounced. They did everything by the book.”

Allegations in the lawsuit that social workers did not interview the children are of concern, said Jill Berrick, a professor at the University of California Berkeley whose research focuses on the child welfare system.

If an allegation of maltreatment surfaces, it is the legal responsibility of the social worker to meet with the children and talk to them, Berrick said by telephone. But that obligation is not necessarily in step with cultural values that give greater consideration to adults’ voices, she said.

“If you have a cultural backdrop that says the child’s voice is not the centerpiece, the adult’s voice is the centerpiece, that will shape thought,” Berrick said. “It’s a cultural standard that we have. I think that should change. I think the U.S. should be much more responsive to children than we are.”

When the county takes children from parents, it assumes responsibility for protecting them from harm. The county network has almost 900 foster homes and employs more than 400 protective services workers, each handling about 17 cases at any given time.

In a July 6 court filing, San Diego County attorneys argued that government workers cannot be held liable for exercising the discretion that’s a necessary part of their job.

“Discretionary immunity applies to ‘removal and placement decisions,’ including ‘lousy decisions in which the worker abuses his or her discretion,’” they wrote, citing case law. “The immunity applies to those decisions ‘no matter how horrible the outcome.’

“Discretionary immunity not only applies to social workers’ decisions to place a child in a foster home, but it also applies to their decisions about whether to intervene subsequently and change the placement.

“Similarly, discretionary immunity applies to social workers’ decisions whether to investigate sexual abuse and remove a minor from foster care.”

Taken away

As a boy, A.G. suffered from nephrotic syndrome or nephrosis, a medical condition that results in too much protein entering a patient’s kidneys. A common symptom is swelling of the ankles or feet.

His journey into foster care started with a medical visit in April 2005. His mother, Samantha Cruz, brought him to Rady Children’s Hospital when treatment of his swelling with steroids didn’t work, according to the twins’ lawsuit.

There, three county social workers seized custody of A.G. on an allegation of medical neglect, the lawsuit says. Cruz was allowed to keep A.G.’s healthy twin, M.G.

During the next few years, Cruz lost her parental rights to A.G., and Hayes adopted him — with the help of the county, the lawsuit said.

Cruz lost custody of M.G., too, after she was arrested for check fraud in November 2008. The county placed M.G. with Hayes even though Cruz begged a social worker not to do so, citing alleged sexual abuse of A.G., the lawsuit says.

Cruz did not regain custody of M.G. until 2010. After Hayes’ conviction in 2014, she regained custody of A.G., too.

In 2017, Cruz was arrested for her role in a felony assault on a man during a small, drug-fueled party at her home, according to criminal records. Cruz pleaded guilty and was sentenced to three years in prison in February and is serving her time at California Institution for Women in Corona.

Working with children

Hayes’ employment history shows he worked with children for years before joining the county’s foster care system.

He worked as a bus driver for the San Diego Unified School District, according to a reference letter the transportation manager wrote when Hayes was being sentenced after pleading guilty to molesting the boys. The letter places the employment in the late 1990s.

In the telephone interview, Hayes said he drove a bus for Neighborhood House preschools in several locations and sometimes filled in as a teacher.

Records from the state agency that licenses child care facilities show Hayes associated with more than a dozen centers across the county between February 1998 and March 2013. The records, which Hayes agreed to release from his criminal defense files, document that he was fingerprinted. They do not specify whether he applied for work or actually worked at the locations.

Hayes said he got licensed by the County of San Diego as a foster parent and took in his first foster son, a toddler, in 2005. Hayes told The San Diego Union-Tribune he knew of one complaint about him, involving a visit that county social workers made to Hayes’ home to check on the toddler.

Hayes said his home was messy and the water had been shut off for a plumbing repair, prompting an allegation that he did not have running water. The plumbing repair resolved the issue, he said.

The lawsuit claims that there were multiple complaints against Hayes as a foster father by the time the county placed A.G. in his care in December 2005. Another foster child, A.H., was placed in Hayes’ care in 2007, Hayes said.

The boys lived with Hayes and Hayes’ adult brother in a two-bedroom apartment in Lincoln Park. By the end of 2009, Hayes had adopted A.H. as well, Hayes said.

Research has identified risk factors that increase the likelihood of child abuse or neglect in a family, according to a 2013 report by the state Legislative Analyst’s Office. So-called “family risk factors” include a single-parent head of the household, low socioeconomic status and multiple siblings.

“Children in families with multiple risk factors are typically at greater risk of child maltreatment, and certain risk factors predict a higher probability of child maltreatment,” the report said.

Under those standards, social workers may have added risk — as well as more potential victims — to an already risky situation by placing more children in Hayes’ home.

When A.G. first arrived at Hayes’ home, it was already a single-parent household with a relatively low socioeconomic status. The county’s decision to add more children to the home created another risk factor, multiple siblings, potentially exposing all the children to an increased risk of harm.

At one point, A.G., M.G. and A.H. were all living with Hayes and his brother in the two bedroom apartment, where the three boys shared a bedroom and Hayes slept on a pull-out couch in the living room, according to Hayes and police reports.

State regulations do not allow anyone in a foster home to use a common space as a bedroom, and it generally limits the number of children who can share a bedroom to two.

Red flags

In May 2007, Cruz reported to the county what M.G. told her about abuse the twins suffered during a weekend when M.G. visited his brother at Hayes’ home, according to the lawsuit.

The day after the county received the report, a social worker set out to interview A.G. at his school, the lawsuit said, but A.G. had just gotten in trouble at school and he didn’t want to talk, so the social worker left without speaking to him.

The social worker tried again on June 26, 2007, the lawsuit said. This time, A.G. agreed to speak to him, but when the social worker asked about the abuse, A.G. just covered his face in his hands and refused to talk about it, the lawsuit says.

So the social worker left without an interview and closed the report as unfounded, according to the lawsuit.

It was not the first time social workers fell short of their responsibility to protect the twins, and it would not be the last, according to the lawsuit.

In November 2007, the county received a report alleging a child in Hayes’ care had sexually abused another child, and that A.G. was also being victimized, according to the lawsuit.

According to the lawsuit, the report was designated for immediate investigation, but the assigned social worker did not investigate until Feb. 29, 2008 — then closed the report as inconclusive the same day because he was “unable to speak with with Hayes, A.G. or any minor.”

M.G. was taken from his mother in November 2008 and joined his twin in Hayes’ home the following month. M.G.’s court-appointed attorney advocate twice told M.G.’s social worker, Robert Dietze, that she was very concerned about the boy’s living conditions and that she thought Hayes should be reported to foster care licensing, the lawsuit says.

In February 2010, the attorney’s private investigator made an unannounced visit to Hayes’ home to check on M.G., the lawsuit says, and the reek of urine was so overwhelming it made the investigator’s eyes burn and water.

Dietze noticed dirty carpets and the same strong smell when he visited the home later that month, the lawsuit said. Dietze declared the apartment “somewhat marginal,” the lawsuit says, and Hayes told Dietze that the twins wet the bed nightly.

Late stage bed wetting is a well-known indicator of sexual abuse. At the time, the twins were 10.

The social worker did not act on the attorney’s concerns, nor did he investigate the unsanitary living conditions or the alleged bed-wetting, the lawsuit says, instead suggesting Hayes clean his carpets to improve the “general ambience in the home.”

Dietze, who is named as a defendant in the lawsuit, was convicted of drunk driving in 2007 but continued to work for the county. In 2010, the year he left county employment, he was arrested twice. He pleaded guilty to possessing cocaine for personal use and driving while under the influence of drugs or alcohol within 10 years of a previous DUI conviction.

Dietze declined to comment when reached by telephone, saying, “I’m not going to answer any of your questions.”

Robert C. Fellmeth, executive director of the Children’s Advocacy Institute at the University of San Diego School of Law, said allegations from multiple independent sources should trigger increased investigation and decisive action.

“When you have reports coming in from the kid and coming in from everyone else, you have to have a pattern mechanism in place,” Fellmeth said by telephone. “It’s a multiplier effect. When you’ve got two indications of guilt that are independent of each other, it’s not two, it’s four. You’ve got a serious, serious issue that has to result in interviews, temporary removal, perhaps, and very aggressive intervention.”

A social worker with the county’s foster care system took a position similar to Fellmeth’s in a sworn declaration for another lawsuit in 2011. The social worker said in her declaration that 11 complaints within 10 years about the foster mother in that case was cause for concern, whether all of them were substantiated or not.

“This was a red flag for me, as this was a large number of referrals compared to other foster homes,” the social worker said in the court record. “There are many foster homes that have operated for thirty years without a referral.”

Although the county declined to comment on the Hayes case, spokeswoman Sarah Sweeney did respond by email to questions about county policies and practices for foster care, including a question about the challenges workers face when investigating child abuse claims.

“Protective Services Workers encounter challenges with locating and interviewing alleged perpetrators, victims and multiple collateral contacts,” she said. “Language barriers can delay interviews. Furthermore, social workers work diligently to ensure confidentiality of the reporting party. Social workers must exercise extreme care when making contact with families and discussing the investigation. Social workers must also coordinate with other investigating agencies … which may impact the timeframes for coordinated investigations.”

The county supervises more than 2,000 foster children, and substantiates about 50 cases per year of reported mistreatment of them, from perpetrators in or outside the system. To compare counties, the state looks at the rate of substantiated cases per 100,000 days of collective foster care. San Diego County’s rate is 7.33 substantiated incidents per 100,000 days of foster care. That’s better than the state rate of 7.65, but worse than the rate of 5.11 in Orange County and 5.91 in Riverside County.

Los Angeles County has a rate of 7.47, and San Bernardino has the worst rate in the region at 14.98.

Running away

In early July 2013, A.G. ran away from the apartment in Lincoln Park. As Hayes told it in the telephone interview, “The night before, I let him go hang out with his friends and he came in really late and I got on his case about it and he was mad, so he decided the next day to run away to his mother’s house,” Hayes said.

The adoptive father called the San Diego Police Department and an officer came to the home. Hayes told the officer he believed the boy had run off to be with his mother, according to a redacted police report that Hayes voluntarily released.

The officer called the mother, who had filed her own police report about Hayes. The officer decided to investigate the situation as one of suspected child abuse.

Officers took A.G. and the other adoptive son, A.H., from Hayes’ home the same day. They took them to the county’s shelter for abused and neglected children, the police report says. Police observed videotaped interviews with the children and got a search warrant for Hayes’ home.

A detective described the home in her report: “The apartment was filthy and there was a foul odor throughout the house. Numerous cockroaches of various sizes could be seen crawling around the refrigerator, on the walls, floor, and on top of the desks. There were cockroaches on the sofa in the living room and all through the house. There were spiders hanging from certain parts of the walls/ceiling and trash and clothing strewn all about on the floors and in the bedrooms.”

A.G. told the officer who responded to the runaway call the night before that he had come home late after playing outside, and Hayes had “punched (him) in the right side of his ribs with a closed fist,” according to the police report, adding that Hayes punched him any time he made a mistake, “at least once per day every day” since he was first placed with Hayes.

A.G. told the officer that he was “more bothered” by his father watching pornography and masturbating every day, in plain view, according to the report.

A detective also interviewed Hayes, who denied any wrongdoing and attributed the allegations to the boys’ mother and her desire to get her son back, the police report says.

According to the police report, Hayes told a detective that a social worker had warned him to be careful because the twins’ mother was making claims of child abuse.

“Michael said the social worker made a reference about single guys being an easy target because most men tend to do these kinds of things to children,” the report said.

The search of Hayes’ apartment turned up evidence including “tens of hundreds” of pictures of feet on his computer, including at least three pictures of a “man kissing small feet,” according to police records Hayes released. The records describe more than 20 images of children engaged in sex acts.

The police record from Hayes’ criminal defense files describes forensic analysis of a computer in Hayes’ home that showed internet searches including “kidsfeetforum,” “boy gay porn,” “is it illegal to smell children feet” and “boy having sex with a chicken.”

A detective investigating the case concluded in the report, “Michael Hayes took advantage of the foster care system to take children into his home and sexually abuse them.”

The detective noted in her report that shortly after police took A.G. and A.H. from Hayes’ home, he apparently went looking for further opportunities to be close to children. The report said Hayes applied to work as a volunteer at a private preschool and traveled to San Bernardino County, where he allegedly molested one of the victims later named in the criminal complaint.

During the phone call from prison, Hayes told the Union-Tribune he was innocent but pleaded guilty to avoid a life sentence.

“I didn’t want to take any risks, so I took the deal they offered,” he said. “The only thing I’m guilty of is being a caring father.”

‘I still think about him’

The twins’ $5 million-plus lawsuit against the county is moving toward a trial next year.

In its answer to the twins’ lawsuit in federal court, the county denied the twins’ allegations and said any harm A.G. and M.G. claim to have suffered was caused by others. According to the county, the twins “acted unreasonably, carelessly, and/or negligently in and about the matters alleged in the complaint in that they did not exercise ordinary care, caution, or prudence for their own safety and protection.”

Based on the date ranges specified in the criminal charges to which Hayes pleaded guilty, A.G. was 6 or 7 when Hayes first molested him, and M.G. was 10 or 11.

The twins are now living in a group home as part of a foster-care extension program, lawyers said at a recent court hearing. The twins’ attorney, Shawn A. McMillan of San Diego, said in the lawsuit that his clients continue to suffer anxiety and anguish from the harm they endured because of the county’s failure to meet its responsibility to protect them during the years they lived with Hayes.

One of the many reports of suspected abuse detailed in the lawsuit came from the staff at Nye Elementary School in Encanto.

Jessie Fernandez, who taught A.G. at Nye for three years in a class for students with special emotional needs, told the Union-Tribune by telephone that A.G. was “hell on wheels” when he came to her classroom as a second-grader.

“He would spit, cuss. You name it, he did it,” Fernandez said. “And as he got older and I built this rapport with him where he learned to trust me, he just became so endearing.”

Fernandez said she and other teachers thought Hayes was odd and questioned whether he had what it took to parent a difficult child.

“It was weird to us that a system would kind of put kids like that with someone like that,” she said. “To me it just didn’t seem like he really had it together.”

By the time A.G. left Fernandez’s class for students with special emotional needs in fifth grade, he was sweet, protective of her, and one of her favorite students, she said.

Fernandez said she was heartbroken when the Union-Tribune told her details of the Hayes criminal case, which never made the news. She asked the reporter to get a message to him.

“Just tell him I still think about him,” she said, “and if he needs anything, to reach out.”

Watchdog reporter Morgan Cook answered questions about how she did this story »

morgan.cook@sduniontribune.com