Long before 4-year-old Fabian Silva died, his older brother sent a letter to Child Protective Services saying he was scared of Alejandro Romero, his mother's boyfriend, who is now charged with killing Fabian.
But a CPS caseworker told police she thought Oscar Silva had been coerced to write the letter by his non-custodial father, and left the boys in the home even though two doctors had also reported signs of abuse and the boys' mother told her Romero smoked marijuana daily.
Alejandro Miguel Romero, 25, who had been found guilty of drug-paraphernalia possession and had been arrested on a previous domestic-violence complaint and a disorderly conduct complaint, was indicted last month on charges of child abuse and manslaughter in connection with Fabian's death Jan. 27 from a blunt-force trauma to the head.
Documents obtained by the Arizona Daily Star don't say whether CPS did a criminal background check on Romero after opening its investigation in October, in response to doctors' concerns about severe bruises to Fabian's groin and penis and elsewhere on his body that appeared to be from abuse.
CPS has refused to release Silva's case file, saying a new state law making such files public record will not take effect until September. Agency spokeswoman Liz Barker Alvarez would not comment, citing the pending litigation.
But a combination of police, medical and autopsy reports raise questions about the agency's handling of another case in which a child under its watch died.
Although Fabian's father and one set of grandparents contacted CPS in the fall, months before Fabian died, there is no evidence investigator Kathryn Kolton formally interviewed them.
It's also unclear if Kolton interviewed an aunt who was living in the home at the time, even though CPS investigators are required to interview all adults in the home. The aunt would later tell police she had concerns about Romero's drug use and how he treated Fabian.
In the days before Halloween 2007 Fabian had been throwing up and battling a headache that kept getting worse. Worried about his health, Fabian's mother, Marina Baker, took the boy to Tucson Medical Center.
Doctors there were concerned about large purplish bruises on Fabian's forehead and around his penis. Baker told doctors that Fabian had recently fallen several times while walking up the stairs, hitting his head. The bruising around his penis and other areas, she said, probably came from fighting with his older brother, but she wasn't sure.
A CT scan would show a brain hemorrhage, which made Dr. James Splain skeptical.
"The story of trauma is not completely inconsistent with the explanation, although the mechanism seems unlikely to have resulted in a bleed," he wrote in his report. "Combined with his other skin injuries, however, especially the bruise on his penis, I have some suspicion of abuse."
Similarly, Dr. Brian Hagerty, wrote in his report, "The pattern of bruising does concern me for non-accidental injuries."
Fabian stayed under medical care for several days. On the first night a CPS investigator went to the hospital to interview Baker, who talked about how the boy had fallen down the stairs, domestic problems she had with his father and her concerns about her older son being too rough with him.
She also said Romero, who often watched the children alone, smoked marijuana every day because "it helps him get motivated to work," documents show.
Fabian's father, Oscar Silva Jr., and grandmother, Marina Rodriguez, suspected abuse, police reports show. Baker insisted there was none.
In the following days, both the father and the grandmother asked to be interviewed by Kolton. It's unclear if any formal interviews happened, although records show Kolton spoke briefly to Rodriguez over the phone.
Fabian's father also had his oldest son, also named Oscar, write a note to document any abuse.
The boy was 8, and he wrote, "Alex's hites Fabian on the but because Fabian pees. Spanks Fabian because he is bad. Spanks me. spanks me because his kids blame it on me. Me and Fabian get spank all most every day. He hearts my filling. I am righting to my dad. I don't like Alex because I am scared of him."
In an interview with police in February, Kolton said when she interviewed Fabian's older brother, he said none of the claims in the note were true, according to police reports.
"They pretty much disregarded that letter. They didn't take it seriously. It's very frustrating," said Oscar Silva Jr., who recently filed a $5 million claim against the state and CPS.
"There was no forensic interview that I know of," said Jorge Franco Jr., the attorney handling the claim. The police reports don't indicate where the older boy was interviewed or who was present.
"It really is a failure at the individual level. There is always other information out there that's available for (the investigators) to get, and they just don't do it for whatever reason."
Kolton closed the case, saying the reports of abuse were unsubstantiated. Her reasoning, she later told police, was neither Fabian nor his older brother mentioned any abuse, nor did Romero or Baker. She said from talking to the boys she thought the bruising came from a wrestling game.
Franco said that if Kolton had interviewed Fabian's grandparents and father, she would have gotten a different picture. He said young Oscar told his grandparents, "Alex directed and encouraged his own sons to beat up Fabian to 'toughen him' because he was a 'crybaby.' "
On Jan. 26, Romero drove Baker, with the two boys, from their apartment near West Speedway and North Silverbell Road to the Midtown hair salon where she worked. Then, police reports say, he dropped off Oscar III at SS. Peter and Paul Church, 1436 N. Campbell Ave., for catechism class.
He and Fabian went to the bank and then home, where they played video games.
After about 20 or 25 minutes, though, Romero told police Fabian defecated in his pants. He said he ordered the boy to go upstairs to take a shower, while he went outside to put Christmas lights in a shed.
When Romero came back in Fabian was lying on the floor at the bottom of the stairs. The boy was wearing the same soiled clothes. Even though the boy was unconscious and unresponsive, Romero told police he did not think to call 911 because he "panicked and did not know what to do," the report says.
"He said all that was going through his mind at the time was that Oscar was going to be 'stranded on the side of the road' if he did not pick him up."
Romero told police he put Fabian in the car seat and drove to church, assuming Fabian was asleep because he was "snoring."
It was only after picking up the older brother, Romero said, that Fabian stopped breathing, and he then rushed the boy to University Medical Center, across the street from the church.
Although the hospital staff resuscitated the boy, he died the next day. Doctors estimated Fabian hadn't been breathing for 20 minutes when he arrived at the hospital.
Romero, who is free on bail, would not comment.
CPS has also refused to provide Fabian's family with case reports.
For Marina Rodriguez, Fabian's grandmother, the lack of information has made a difficult time that much harder. The case has split apart the family and she feels as if she has been left in the dark.
"I want the proof that they didn't document anything," she said. "It wasn't documented properly. It wasn't followed up properly. What did they do? What did they say when they left the hospital? I want to see the documentation."
The family has been raising funds for a memorial bench, she said, but months after the death, there is no peace.
"Time is not healing anything," she said. "Time is not healing any feelings or emotions, and the loss of Fabian, it's like it was yesterday."
Contact reporter Josh Brodesky at 807-7789 or firstname.lastname@example.org.
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