July 26, 2014

Grandmother of slain El Dorado girl disagrees with ruling that DCF can’t be held liable

A judge has dismissed a lawsuit accusing a state agency of failing to protect an 18-month-old El Dorado girl before she was killed.

A judge has dismissed a lawsuit accusing a state agency of failing to protect an 18-month-old El Dorado girl before she was killed.

In a ruling filed last week, Sedgwick County District Judge William Woolley wrote that “the court holds that Kansas law does not impose on child welfare agencies an independent duty” in the investigation of child abuse.

Because there is no “duty,” or legal obligation, there can be no claim of negligence against the state child-protection agency, the Department for Children and Families.

But the idea that the state can’t be held legally liable for how it handled the case of Jayla Haag before her death doesn’t make sense to her paternal grandmother, Wendi Vittitow.

“I was always under the impression that they were there to protect children,” Vittitow said. “I think they should be held liable for what happened to Jayla.

“There’s got to be some changes in the law,” she said. “There’s got to be some changes in the way they handle things.” By “they,” she means the DCF, law enforcement, prosecutors — anyone involved in helping to protect children.

“Because there’s going to be more babies like Jayla,” the grandmother said. “There’s going to be more tragedies.”

Any child’s death ‘a tragedy’

Jayla died in March 2012 after ending up at an El Dorado hospital with injuries across her head and body. Several of her teeth had been forcibly removed.

Randy Rathbun, the attorney who brought the lawsuit on behalf of Jayla Haag’s father, echoed Vittitow’s comments, saying, “It is just not right that DCF can be aware that a child is in a meth house, is being abused, knows that the mother is using drugs, knows that the mother is refusing to do a drug test, knows that the child has unexplained bruising on her face and owes no duty to that child.”

Rathbun said he intends to file an appeal of the judge’s decision.

In a statement Friday, DCF spokeswoman Theresa Freed said the agency appreciates the judge’s “careful consideration of this case.” She added: “Any death of a child is a tragedy, and our hearts go out to those mourning the loss of a child. DCF takes seriously its responsibility to protect children.”

Before the judge’s ruling, the state asked that the lawsuit be dismissed, and in June, Woolley heard arguments from both sides. The lawsuit contends that the DCF failed to protect the girl after knowing she was living in an El Dorado drug house and being abused. In the June hearing, Assistant Attorney General Steve Fabert argued that the state has no liability and that the 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 Woolley.

Rathbun countered by telling the judge that the DCF “increased the risk” to Jayla. “They just horribly fumbled the ball,” Rathbun said. Rathbun said Jayla was born addicted to methamphetamine to a mother who had already had one child taken away, that the DCF knew her mother was using drugs seven months into her pregnancy and did nothing, that there were a number of anonymous complaints that the mother was using drugs, and that the DCF knew about it.

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

The DCF had authority 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 the 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, the 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 the DCF provided to The Eagle.

Alyssa Haag, the girl’s mother, pleaded guilty to involuntary manslaughter 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 at the time. Butler County Attorney Darrin Devinney said then 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.

The ‘system failed’

State Rep. Les Osterman, R-Wichita, who serves on the House Health and Human Services and Judiciary committees, said he would be open to the idea of changing the law so that social workers have authority to remove a child on their own.

But Rathbun argues that DCF social workers already have the authority, that in a number of counties across the state, DCF social workers take police with them to do emergency removals when a child is found to be in immediate danger. Rathbun also contends that the law allows anyone, including social workers, to file a petition with a court to remove a child for the long term.

State Rep. Jim Ward, D-Wichita, who also serves on the Health and Human Services and the Judiciary committees, said that regardless of the legal arguments over whether the DCF is liable, it’s clear that “the system failed this little girl. We failed, period. At the end of the day, she deserved better,” Ward said.

“There definitely should be a conversation about, ‘How can you let this happen?’ ”

“Now,” he said, “at the end of the day, how do you remedy that?”

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