Couple Held in Beating Death of Daughter Seek Custody of Their Son

In jail on charges that they beat their 2-year-old daughter Joselin Amor to death, Rogelio and Gabriela Hernandez are fighting for custody of their only living child.

Named after his father, 17-month-old Rogelio Hernandez Jr. has been in foster care since the day his sister died more than eight months ago, officials said.

His young parents--Rogelio is 19 and Gabriela is 18--are accused not only of beating Rogelio Jr.’s sister Joselin to death, but of a history of abuse against their daughter that dates back to her infancy.

Both parents have pleaded not guilty.

And Rogelio Sr. recently wrote a letter to The Times stating that he and his wife could not receive a fair trial because “the citizens of Ventura County have been bombarded by lies and half-truths concerning my case. . . . The D.A. portrays me as some kind of sick animal. I say to the D.A. and the public, even an animal would not kill its own baby.”

Prosecutor Dee Corona, told of the letter, said evidence clearly points to the couple’s guilt--Rogelio for beating the child and his wife for allowing the abuse to occur.

While his parents wait for the start of the murder trial, set for early next month, the boy is taken each week to the Ventura County Jail to see them.

Rogelio Jr. sees his father every Wednesday at the jail and his mother every other Monday, according to his grandfather, Juan Hernandez.

But his parents are not permitted to touch the boy during the hourlong visits.

He is brought in to a visiting room in the jail where his parents see him through a thick glass divider and talk to him on a small black phone.

“It’s hard for them because they would like to hold their baby,” said Hernandez, who lives in Saticoy with his wife and five other children.

None of young Rogelio’s grandparents have been permitted to visit their grandson, Hernandez said.

“The last time we saw him was the night Joselin died and we turned him over to [the Oxnard police],” Hernandez said.

Gabriela’s attorney said the grandparents are being unfairly prevented from seeing their grandson.

Hernandez said his son and daughter-in-law would like to keep custody of the child, but if they lose that right, Hernandez or Gabriela’s father, Miguel Nieto, would like to adopt the boy.

The accused couple’s daughter had a short, tortured life, says the district attorney’s office.

Joselin was removed from her parents’ custody in 1994 at 6 weeks old after suffering broken legs, cracked ribs and burns. Prosecutors say the injuries were inflicted by her parents.

She was made a ward of the court and placed in the custody of her grandmother, Amor Nieto. But when her grandmother died, Joselin was returned to her parents’ small Oxnard home.

Three months later, the little girl was dead.

Prosecutors say she died at the hands of her parents after being hit in the stomach.

Now the court is set to decide the fate of Joselin’s brother, who is healthy and has never shown any signs of abuse, according to testimony from doctors and nurses.

In closed court hearings, attorneys for his parents and the county’s Child Protective Services Agency have been wrangling over who ultimately will get custody of young Rogelio.

The decision about whether he remains in foster care, is returned to his parents, is given up for adoption or is assigned some other form of guardianship probably will depend on the outcome of the criminal cases against his parents, said legal experts.

“Of course that would be significant,” said William Meezan, a professor of social work at USC who specializes in child welfare and foster care issues.

If there is no criminal conviction, it would be more difficult to permanently remove the boy from his parents’ custody, Meezan said.

“But the fact that there is a past record of abuse and another child was removed from their custody for a time is significant,” he said.

But attorney Philip Capritto, who represents Gabriela Hernandez in the custody case and the criminal case, said his client does not necessarily have to wait for the criminal case to fight for custody.

“I can say we’re not controlled by the criminal case,” Capritto said.

Because the custody proceedings are closed, Capritto said he could not discuss the specifics of the case, but he confirmed that the couple are fighting for their child.

“Absolutely. One hundred percent,” Capritto said. “Gabriela Hernandez, like every mother, loves her child, and she wishes to raise her child, and she should have that right if indeed these allegations are not true.”

Capritto said it is conceivable that the custody case will go forward at the same time as the criminal case, involving the same testimony and evidence in both.

Child Protective Services officials said they could not comment on the case because of confidentiality laws.

But Jerry Blesener, the agency’s deputy director, said in typical child custody cases, the court attempts to make a decision on the fate of the child within 12 to 18 months after the child has been removed from the parents’ custody.

During that time, the case is controlled by both state and federal law, Blesener said.

The ideal is to eventually reunite the family, but the judge also has the heavy responsibility of protecting the child, Blesener said.

A typical case will go through a series of court-mandated hearings where a judge decides whether the child is at substantial risk if he or she is returned to the parents’ custody.

Within six to 12 months, the judge may begin the steps to order the permanent placement of the child.

“In certain cases when we have had other children removed from the family previously . . . or the parents have lost a previous child because of chronic problems or say they’ve abandoned an infant . . . the judge may act at the end of six months,” Blesener said. “What you have to consider is the risk to the child. The judge must look at whether it would put the child at risk for it to remain.”

If the county begins action to permanently remove the child from the parents’ custody, the parents can challenge the action in court.

During all those proceedings, an attorney is appointed to represent the child, Blesener said. There are also attorneys who represent the parents, an attorney that represents the county Child Protective Services Agency, and often there are attorneys for the child’s other relatives who may have an interest in assuming custody. In some cases, even the foster family can be represented, Blesener said.

Attorney Jim Harmon, who represents Rogelio Hernandez in an abuse case now being heard in juvenile court, said the future of little Rogelio Jr. is hard to predict.

If, for example, only one of the parents is found guilty of a crime, custody could be awarded to the other parent, Harmon said. If both parents are found innocent, a relative might take guardianship for a time while the parents receive counseling, with the intent to reunite the family, he said. If both are found guilty, the child might be put up for adoption.

“Any number of things could happen to him,” Harmon said.