By Malinda Sherwyn

The concept of a Duty to Rescue is rooted on ethics; most of us feel morally obligated to come to the rescue of a person in peril, and the greater the danger or more vulnerable the victim, the deeper our sense of obligation.

On February 25, 2011, Dr. Ruby Dillon took her then 6-year-old daughter to the emergency room at Hoag Hospital. The ER physician examined the minor and diagnosed “non-accidental” trauma consistent with sexual abuse. Child Protective Services (CPS) was made aware of the medical results as demanded by law.

Did CPS have a duty to rescue?

If a duty to rescue existed, did CPS honor its duty?

In general, there is no duty to rescue in tort law and a person or entity cannot be held liable unless (1) a legal duty was breached that (2) led to a known harm to a person. No legal duty, no negligence.

There are, however, a few exceptions to the general rule.

First, a defendant who creates a dangerous condition that places someone at risk creates along with it a duty to rescue the victim of that risk.

In August 2012, based on probable cause of suspected sexual abuse, the City of Tustin Police Department removed Dr. Ruby Dillon’s minor daughter from the home of the father and took her into protective custody out of fear that she may be in danger. CPS ordered the child returned to the father, the alleged abuser.

Thus, not only did CPS choose not to rescue the minor from her dangerous condition; it also created a dangerous condition when, by returning the minor to her abuser, CPS placed the minor at risk of further sexual abuse.

Second, a duty to rescue also arises if there exists a “special relationship” between the defendant and the victim. “Special relationships” arise when one party assumes responsibility for another; like a parent for a minor child, or a doctor for his patient. In law, the “special relationship” most at issue is the one between emergency response personnel and any member of the community that requires their assistance.

In early March 2011, CPS received a signed affidavit under penalty of perjury from the minor’s teacher (a mandated reporter) confirming the minor’s accusations of sexual abuse. CPS failed to interview the teacher.

In January 2012, the father lost his job and the minor tells law enforcement and CPS that the abuse is occurring almost every time she is at her father’s house. CPS insisted the minor should remain with her father.

On November 7, 2012, the Court appointed therapist (as a mandated reporter) contacted the child abuse registry to report a new allegation of sexual abuse by the father. The Tustin PD immediately sent an Officer to the minor’s school to interview her and removed her from her home into protective custody. CPS dismissed the reporting and had the child sent back to the father.

CPS was specifically created to rescue minors from dangerous situation. Their duty is to respond to reports of suspected child abuse and to act accordingly; that is, CPS are mandated by law to assume responsibility for minors at risk of abuse. Thus, a “special relationship” exists between CPS and Dr. Rubin Dillon’s daughter. In the three instances above, CPS failed to interview the minor’s teacher, ignored the minor’s allegations and dismissed reports by the Tustin Police. Therefore, CPS breached its duty to rescue Dr. Rubin Dillon’s minor daughter.

Another exception to the general rule that there is no duty to rescue is that if one takes a step towards rescue, he then has the responsibility to take reasonable care in conducting his act of rescue. All that the law asks is for the rescuer to do what a reasonable person would do under similar circumstances. In other words, there must be a breach of the duty of care for liability to rise, and if the defendant has acted reasonably, there is no breach and thus no negligence.

On February 25, 2011, Dr. Ruby Dillon took her daughter to the emergency room at Hoag Hospital. Despite medical records documenting “non-accidental” trauma consistent with sexual abuse, workers at CPS failed to (1) interview the ER physician, (2) conduct a forensic exam, (3) contact law enforcement, (4) conduct a CAST interview of the minor child, and (5) conduct an interview of the suspected abuser: her father.

When CPS accepted the medical records from Hoag Hospital they had taken their first step towards rescue of the minor. However, CPS did not act like a “reasonable person” when it then failed to interview the ER physician or the father, conduct any exams of its own or contact law enforcement. Thus, CPS breached their duty to rescue.

To summarize, CPS dishonored the law in at least three ways: (1) CPS created a dangerous condition that placed the minor at risk,  (2) CPS violated its “special relationship” with the victim, and (3) CPS failed to take reasonable care in their attempt to rescue of the minor.

Final Thoughts

One must understand that the law is mainly interested in creating a set of rules that force the public to adhere to a minimum standard of civilized behavior rather than in enforcing ahigh standard of moral conduct. Many things that are morally wrong are not punishable by law.

Thus, it is our duty as responsible members of the community to surpass the guidelines of the law and ask ourselves, not what is the minimum that we can do to protect this child, but rather, what right and moral acts of ours would help rescue this child from her tormentors.

Because, if we as individuals truly want justice for this now 9-year-old child—and not just the minimal protection proffered by current law—we must climb up to a higher moral ground.

Malinda Sherwyn can be reached at malindaws@earthlink.net

More information about Lexi can be found at Bring Lexi Home Now and Save Lexi

A comprehensive article the Orange County Voice by Nick Gerda: Problems in OC Child Welfare System Get Statewide Scrutiny

Chronology of the Injustice

• On February 25, 2011, Dr. Ruby Dillon took her daughter to the emergency room at Hoag Hospital. Despite medical records documenting “non-accidental” trauma consistent with sexual abuse workers at CPS failed to (1) interview the ER physician, (2) conduct a forensic exam, (3) contact law enforcement, (4) conduct a CAST interview oft he minor child, and (5) conduct an interview of the suspected abuser: her father.
• In December 2011, the minor’s physical exam report shows evidence of sexual abuse. CPS willfully ignored the abuse.
• In early March 2011, CPS received a signed affidavit under penalty of perjury from the minor’s teacher confirming the minor’s accusations of sexual abuse. CPS failed to interview the teacher.
• In January 2012, the father lost his job and the minor tells law enforcement and CPS that the abuse is occurring almost every time she is at her father’s house. CPS did nothing.
• In August 2012, based on probable cause of suspected sexual abuse the City of Tustin Police Department removed the minor from the home of the father and took her into protective custody out of fear that the minor may be in danger. CPS ordered the child returned to the father, not the mother.
• On November 7, 2012, the Court appointed therapist (as a mandated reporter) contacted the child abuse registry to report a new allegation of –sexual abuse by the father. The Tustin PD immediately sent an Officer to the minor’s school to interview her and removed her from her home into protective custody. CPS dismissed the reporting.
• In December 2012, the father told the court he now wished to give up custody of the minor to a “third party in another country” or have her committed to a mental home. CPS insisted the minor remain with the father.
• As of July 1, 2013, the Tustin Police Department recommended that the father be prosecuted for numerous felony crimes perpetrated on the minor daughter including sexual abuse. CPS refuses to return the minor to her mother.
• On August 6, 2013, Dr. Rubin Dillon filed a claim in Superior Court against CPS.
• As of June 11, 2014, Dr. Rubin Dillon has yet to regain custody of her daughter.