Crime & Courts

Grieving grandparents had concerns about bruises seven months before 2-year-old Tony died

The grandparents of 2-year-old Tony Bunn, the latest Wichita child to die from abuse, had plenty of photos of his bruised face seven months before he died.

"I’m neither a doctor nor a criminal attorney, but these are not normal childhood injuries,” said Shayla Johnston, an attorney for Tony’s maternal grandparents. “These are not the injuries of a child who fell down on a playground. … It would have been interesting to see what a jury would have thought."

But District Attorney Marc Bennett says there wasn't enough evidence back then to file charges against the parents.

The disagreement about the handling of the earlier investigation surfaced Wednesday as Bennett announced that Elizabeth Woolheater — the mother of 2-year-old Tony Bunn — and her boyfriend, Lucas Diel, were being charged with first-degree murder. Woolheater and Diel have been in jail on suspicion of first-degree murder in Tony’s death. Police and Tony’s grandparents said he had suffered severe head injuries when police went to Diel’s Riverside home Friday.

The Kansas Department for Children and Families confirmed Monday that it had conducted a joint child abuse investigation with law enforcement concerning Tony in October 2017. In a statement Monday, the state agency said that "staff are reviewing this case to determine whether personnel, policy or procedure changes are necessary to prevent further tragedies from occurring."

Then Tuesday, Department for Children and Families Secretary Gina Meier-Hummel said there are “concerning trends in the Wichita Region we needed to address. Quite simply," she said in a written statement, "if we aren’t fulfilling our mission to serve the children and families of Kansas to the best of our abilities, then critical changes are needed. Therefore, effective today, DCF will be making a number of personnel changes."

Bennett noted in his statement Tuesday that there had been a previous allegation of abuse involving Tony in October 2017. Detectives with the Exploited and Missing Child Unit presented their investigation of that case to the District Attorney's Office on Nov. 20, 2017.

"At that time," Bennett said, "insufficient evidence existed to support the filing of criminal charges.”

He said he reviewed the October investigation again on Tuesday and concluded that “there remains insufficient evidence to support criminal charges arising from that October investigation.”

Johnston, an attorney for Tony’s maternal grandparents, Zak and Nancy Woolheater, said the grandparents took pictures of Tony with bruises and scratches on his face over time. The injuries included a black eye. The grandparents gave the photos to investigators in October.

Johnston also contends that the District Attorney’s Office should have filed what’s called a child-in-need-of-care petition — so that Tony could have remained with his grandparents. The boy had been in the grandparents' custody for 12 days in October before he was returned to his mother and her boyfriend.

Through the petition, the child-protection system could have overseen any effort to place Tony back with his mother, Johnston said.

“It’s heartbreaking that they didn't (file a petition),” she said.

Bennett, the district attorney, said his office is on pace to file between 700 and 800 child-in-need-of-care petitions this year, when it has filed 500 to 600 in past years.

"So we have a very robust” child-in-need-of-care record, he said.