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Judge weighing whether lawsuit against DCF in El Dorado girl’s death should proceed

  • The Wichita Eagle
  • Published Thursday, June 19, 2014, at 1:16 p.m.
  • Updated Thursday, June 19, 2014, at 4:03 p.m.

A judge heard arguments Thursday but didn’t rule on whether a lawsuit over the killing of an 18-month-old El Dorado girl should be dismissed.

The lawsuit, filed in Sedgwick County District Court by Jayla Haag’s father, contends that the Kansas Department for Children and Families failed to protect the girl after knowing she was living in an El Dorado drug house and being abused.

In Thursday’s hearing, Assistant Attorney General Steve Fabert argued that the state has no liability and that DCF, as a governmental agency, has immunity in such a lawsuit.

A higher court has found that the state child protection agency shouldn’t be sued every time someone thinks it has been too aggressive or not aggressive enough, Fabert told Judge William Wooley.

In a counter argument, attorney Randy Rathbun told Wooley that DCF was negligent and that it “increased the risk” to Jayla. “They just horribly fumbled the ball,” Rathbun said.

Rathbun laid out this narrative: that Jayla was born addicted to methamphetamine to a mother who had already had one child taken away; that DCF knew her mother was using drugs seven months into her pregnancy and did nothing; that DCF sued the girl’s father on Jayla’s behalf seeking child support; that there were a number of anonymous complaints that the mother was using drugs and that DCF knew about it.

His narrative continued: When Jayla was 9 months old, police raided the house where she was living with her mother and her mother’s boyfriend, and the boyfriend received a drug charge as a result, and DCF knew about that. When Jayla was 13 months old, DCF and police found unexplained bruising on the girl’s face, and her mother refused to do a drug test when asked.

Rathbun said DCF has ignored his attempt to obtain documents. “I am pleading this case in the dark,” he told Wooley, the judge.

DCF had the right to have police remove the child from her home but didn’t do so, Rathbun said, adding that he disagrees that only the prosecutor could have filed to remove the child.

The Eagle has reported that DCF says it tried to remove Jayla from her mother five months before she arrived at a hospital malnourished, missing teeth and semi-conscious from head injuries. On Oct. 17, 2011, DCF filed an affidavit with the Butler County Attorney’s Office, seeking custody of Jayla. But a Butler County prosecutor thought the state lacked evidence, according to a timeline DCF provided to The Eagle.

The lawyers on both sides of the lawsuit will be presenting more documents to the judge before a decision is made on whether the lawsuit should be dismissed.

Alyssa Haag, the girl’s 24-year-old mother, pleaded guilty to involuntary manslaughter-reckless in her death. Haag is in prison.

In September 2012, a Butler County judge dismissed a first-degree murder charge against Justin Edwards, Haag’s boyfriend, because Jayla’s autopsy had not been completed then. Butler County Attorney Darrin Devinney said at the time that a murder charge could be refiled after he received a completed autopsy report with a finding on a cause of death.

A coroner ruled the 18-month-old’s death a homicide. Along with “multiple contusions of the head, trunk, and extremities,” the autopsy report said, Jayla’s six lower teeth had been forcibly removed.

Reach Tim Potter at 316-268-6684 or tpotter@wichitaeagle.com.

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