Foster family agency director found not guilty of failing to report child abuse

The director of a foster family agency was found not guilty Monday of a misdemeanor charge of failing to report child abuse after he found a hidden camera in a bathroom used by foster children.

Michael John Tucibat, director of Spectrum Children’s Services of Fresno, declined to comment after the verdict was announced in Fresno County Superior Court. His lawyer, Peter Kapetan, said the jury did the right thing.

“He acted reasonably under the circumstances,” Kapetan said, noting that law is vague when it comes to reporting suspected child abuse.

Tucibat, 63, was charged with failing to carry out his duties as a mandated reporter of child abuse. If he had been convicted, he faced up to six months in jail and/or a fine of $1,000.

He did not testify in his weeklong trial.

The jury of five men and seven women deliberated about fours before reaching a verdict.

In this case, foster kids were not physically abused or molested. In they had been, the child abuse must be reported immediately, Kapetan said.

Because child abuse was only suspected, Kapetan said, jurors learned from witnesses that it could be reported within 24 hours or 36 hours or seven days, depending on what the mandatory reporter observed.

Police say the hidden camera was found in December 2014 in the Fresno home of James David Stewart, who was taking care of foster children that were placed by Tucibat’s agency.

Stewart, 50, was not a defendant in the trial; he pleaded no contest last year to a misdemeanor charge of peeping for using the hidden camera to secretly record foster children in his care. In May 2016, Stewart was sentenced 30 days in jail and three years of probation.

During the trial, prosecutor Justine Keel said Tucibat found the hidden camera in the shower stall in the foster children’s bathroom, but he didn’t report it to police for 18 hours – after Child Protective Services told him to do it.

By waiting, he put four foster children in danger because he allowed them to remain in Stewart’s home until police arrived the next day, Keel told the jury.

Kapetan, however, told the jury that once Tucibat found the camera, he took it out of the shower, and told the foster children that he planned to report it to police. The children were not in danger, Kapetan said, because Tucibat had asked them if they wanted to stay in Stewart’s home and they all said yes.

The hidden camera gave a live video feed to a television in Stewart’s room. The foster kids were allowed to go into Stewart’s room to watch television or movies and play video games, Kapetan told the jury.

On Dec. 16, 2014, a 14-year-old foster girl went into Stewart’s bedroom to watch a movie. While watching the television, the girl came across the live video feed from the bathroom that the foster children shared. The video showed the toilet and interior of the shower. One of her siblings then used her cellphone to take a photograph of the live video feed.

Later that day, Tucibat went to the home to counsel the foster children. Once the foster children told him about the live video feed, Tucibat confronted Stewart about it, but Stewart said he knew nothing about it, Kapetan told the jury. The foster children also didn’t suspect Stewart and liked living in his home, Kapetan said.

Tucibat took possession of the camera and left Stewart’s home.

The next day, one of the foster children told her therapist about the hidden camera. The therapist immediately contacted the Fresno County Department of Social Services.

When CPS contacted Tucibat about the incident, Tucibat told the social worker “he was going to report it, but had not come around to it yet,” according to an affidavit by Fresno police detective David Wilkin, who investigated the case.

Kapetan said he didn’t know why the camera was hidden in the bathroom, but he told the jury that there were allegations that the foster children used too much bathroom tissue or had a tendency to cut themselves.

He said Tucibat first tried to turn over the camera to the Department of Social Services, but he was told to give it to police. When police searched Stewart’s home, the camera’s power source was missing, Wilkins’ affidavit says.

This story was originally published January 30, 2017 at 3:28 PM with the headline "Foster family agency director found not guilty of failing to report child abuse."