State tried to remove girl from El Dorado home months before she was killed

Five months before Jayla Haag arrived at a hospital malnourished, missing six teeth and semi-conscious from head injuries, the state tried to remove the 18-month-old from her mother.

On Oct. 17, 2011, the state Department for Children and Families filed an affidavit with the Butler County Attorney’s Office, seeking custody of the El Dorado girl.

But a Butler County prosecutor thought the state lacked evidence, according to a timeline DCF provided to The Eagle last week.

DCF’s disclosure that it tried to remove Jayla from her home comes as the agency is facing a lawsuit from Jayla’s father accusing it of failing to protect her even though it knew she was living in a drug house and being abused.

Five months after the state tried to remove the girl from her home, Jayla was dead.

There had been multiple calls, including to the child abuse hotline, alleging that her mother was using drugs. Police had searched the El Dorado duplex nine months before she died and arrested the mother’s boyfriend on drug charges.

Randy Rathbun, the lawyer bringing the lawsuit against DCF, said the agency should have done more.

“Here, there’s all this evidence that was stacked up, and for some reason nothing was happening,” Rathbun said.

‘The right call’

Two years after Jayla’s death, issues surrounding the case remain unresolved.

Butler County Attorney Darrin Devinney defends the decision by one of his assistant prosecutors not to pursue DCF’s request to put Jayla into state custody.

Devinney said Assistant County Attorney Cheryl Pierce “made the right call. I would have made the same call. I believe it was responsible to make” based on information at the time.

“Do I feel terrible that we didn’t have grounds to take this child into protective custody? Absolutely,” he said.

“But we can’t forecast abuse or homicide. There was just a lack of sufficient evidence.”

As for the abuse Jayla suffered, it appears that “things went downhill rather quickly ... and extremely dramatically,” Devinney said.

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 autopsy report said her growth had declined in the three to six months before she died, “consistent with malnutrition and neglect.” At 18 months old, she weighed 17 pounds, about what a child half her age would normally weigh.

When Jayla was admitted to the hospital, she tested positive for methamphetamine and amphetamine.

Alyssa Haag, the girl’s 24-year-old mother, pleaded guilty to involuntary manslaughter-reckless in her death. Haag is in a Topeka prison and could be released as early as March 2015.

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. Devinney said at the time that a murder charge could be re-filed after he received a completed autopsy report with a finding on a cause of death.

With Edwards in prison for the drug case and possibly due out in late August, Devinney said last week, he has time to complete a thorough investigation and possibly re-file a charge against Edwards in Jayla’s death.

DCF affidavit

In an interview, Devinney read some details of the affidavit that DCF filed with his office in the failed effort to get Jayla removed from her home. Neither Devinney nor DCF would provide a copy of the affidavit.

The state agency was getting a number of calls with concerns about Jayla’s well-being, he said. DCF tried to follow up but had significant trouble contacting Haag. The first DCF contact came by phone on Sept. 21, 2011, and then apparently face to face on Sept. 29, 2011. The girl had no visible marks or bruises.

The next contact occurred about two weeks later, on Oct. 12, 2011, after DCF received an anonymous phone call that Jayla had a burn on her finger from a crack pipe and bruises on her face. There also had been anonymous reports that her mother was using drugs. A couple of months before the October checks, on June 22, 2011, authorities took a search warrant to the boyfriend’s duplex on Pine, resulting in drug charges. His convictions included possession with intent to sell a depressant and possession of paraphernalia with the intent to produce or grow drugs.

When an El Dorado police sergeant checked on the girl on Oct. 13, 2011, he saw no bruises. The mother told the sergeant that a doctor had been consulted about the burn. There is no explanation for how the burn occurred. To the sergeant, Jayla looked OK.

Devinney said police tend to err on the side of “cautious protection of the child” when responding to abuse reports.

The next day, Oct. 14, 2011, a DCF social worker and a law enforcement officer found the mother at the duplex. Jayla had a nickel-size bruise on her right cheek, and her mother said she didn’t know how the bruise occurred. They asked the mother to go to a drug-testing facility. But when she showed up at the facility, with an attorney, she refused to submit to the test. About three days later, DCF asked the County Attorney’s Office to remove the girl from her home. DCF doesn’t have the authority to remove a child on the spot, on its own.

“I don’t know that there’s any grounds to remove the child at that point,” said Devinney, the county attorney. In most of the child abuse cases, he said, his office pursues prosecution.

The affidavit seems to show “DCF doing their best to contact law enforcement” about Jayla, he said. “They were pursuing getting to the bottom of it completely and thoroughly from the very first call that came in.”

Sometime in December 2011, around three months before Jayla’s death, DCF learned that the County Attorney’s Office decided that it would not be taking the affidavit to a judge for action.

Devinney said that Pierce, the assistant county attorney who made the decision, has significant experience with such cases and previously worked for the Department of Social and Rehabilitation Services, DCF’s predecessor. Devinney said he handled child-in-need-of-care cases for 10 years before he became the chief prosecutor.

The system was trying to investigate reports about Jayla, but those involved “weren’t seeing anything significant enough to take the child into protective custody at that time,” Pierce said Friday.

“It’s heartbreaking for it to end the way it did, but I think we were all doing everything we could do to protect her,” she said.

“It’s very difficult to balance protecting a child and parents’ constitutional right to have that child.”

Rathbun, the Wichita lawyer suing DCF, said the agency could have pressed police to take Jayla into protective custody or filed a petition itself with the court.

DCF, however, maintains that under state law, the request to remove a child must go through a county attorney.

Wendi Vittitow, Jayla’s paternal grandmother, said Jayla’s father was not notified of the DCF’s affidavit and effort to get his daughter removed from her mother. The father, Steven T. Watters, filed a lawsuit last month in Sedgwick County District Court contending that DCF “knew that Jayla was in danger and did nothing to protect her.”

Vittitow said her son didn’t know he was Jayla’s father until after her birth and the state sought a paternity test to see if he owed child support. She said he didn’t want to comment directly to The Eagle but told her that Haag for most part didn’t allow him to see his daughter.

The purpose of the lawsuit is to bring attention to child abuse and to help prevent another death, Vittitow said.

Sue Beattie, Jayla’s maternal great-grandmother, said Jayla and her mother moved in with Edwards, the boyfriend, when Jayla was about a year old.

Beattie never saw signs of abuse on Jayla – “nothing that jumped out at us,” she said.

At one point, Beattie said, she told Jayla’s mother, Haag, that it seemed as though every child-abuse story in the news involved a boyfriend as the perpetrator. Beattie said Haag told her that Edwards loved Jayla and would never hurt her.

Substance abuse cases

Two months before Jayla was born, according to information DCF provided, her pregnant mother was allegedly using substances.

Two days after Jayla’s birth, family preservation staff began working with the mother “on parenting, staying clean, finding employment, obtaining her GED and accessing community resources,” according to DCF records.

The lawsuit says, “Alyssa (Haag) used drugs during her pregnancy and Jayla was born testing positively for methamphetamines and amphetamines.”

The autopsy report says that when Jayla was admitted to the hospital, a drug screen showed methamphetamine and amphetamine.

After Jayla’s death, witnesses said there had been meth use in the duplex immediately before her death, Devinney said.

Over the past four years, DCF has recorded a steady increase in the number of children removed from homes because of meth. There were 238 meth removals in Kansas last year.

Parental substance abuse has been the primary reason for nearly one in five cases in which children were removed from the home over the past four years, DCF records show.

Child abuse prevention

After Jayla died, a Justice for Jayla movement arose. It became an outlet for people to vent, pray, remember and push for awareness and prevention of child abuse. There is a Justice for Jayla Facebook page. April is National Child Abuse Prevention Month.

Jayla’s death isn’t something that will just go away, Devinney said.

“I’ve got her picture in my office and see it every day,” he said.

“It’s personal for the whole community.”

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