A Judge has reversed a decision by the Kentucky Board of Claims to essentially throw out a case that blames the death of a Whitley County toddler in late 2013 on the failure of social workers to take action after being warned she might be in danger.
Whitley Circuit Judge Dan Ballou issued the 19-page ruling on Feb. 19. The issue will now go back before the Board of Claims, or on to the Kentucky Court of Appeals if the state’s Cabinet for Health and Family Services decides to appeal the decision.
The case involves the death of Williamsburg toddler Madisyn Davis who was found dead in her bed Nov. 20, 2013. The girl’s mother, Trina White, 36, and live-in boyfriend Mark Hyden, 35, were arrested and charged with murder in the wake of an investigation into Davis’ death. Both have been sentenced to lengthy jail terms for their part in her death.
The action before the Board of Claims was filed by Williamsburg attorneys John Reynolds and B.J. Foley on Nov. 19, 2014 on behalf of Davis’ biological father Jason Davis.
Reynolds said he agreed to file the claim on Davis’s behalf because he felt like Madisyn’s death was ultimately preventable had workers with Child Protective Services done a proper investigation when another local attorney called in a complaint to the CPS office two months before her death.
The Board of Claims dismissed the case in mid-April 2015 saying “the negligent acts complained of were discretionary in nature,” and therefore social workers had “qualified official immunity” insulating them from legal action.
Reynolds said Ballou’s decision was a big win because it kept alive an opportunity to expose weaknesses in the system designed to protect Kentucky’s children from abuse and neglect.
“I’m not trying to knock social workers, I know they have a tough job,” Reynolds said. “But it’s not right to hide behind a cloud of immunity when obviously something is not right.”
Reynolds said the distinction between what are called “ministerial” actions on the part of CPS and “discretionary” actions is important. Essentially, a “ministerial” action is one that CPS workers are obligated to take because to do otherwise would violate standard operating procedures. “Discretionary” actions are ones where workers are given leeway.
According to documents obtained from the Kentucky Board of Claims, via the state’s Open Records Act, Williamsburg Attorney Jim Wren, who serves as a Public Defender in Whitley County, called CPS to report odd behavior on the part of White.
She also had a significant criminal history and was known to be a habitual drug abuser.
Reynolds said an unnamed CPS intake worker did not take Wren’s call of possible abuse or neglect seriously, particularly when the worker found out he was a complaining witness against her in a criminal case. He added that this case isn’t unusual and typifies a trend of calls of possible abuse or neglect being ignored either because CPS workers are overwhelmed or don’t want to deal with them, or because their internal policies an procedures are so broad that decisions on whether to investigate such reports are often capricious and arbitrary.
In his initial complaint, Reynolds claimed the intake worker failed to even do the most basic initial investigation to see if White had a significant criminal history or any child custody issues. She had lost custody of her first child in 2004.
In his ruling, Ballou noted that the intake social worker “failed to make reasonable inquiry into the facts and circumstances surrounding Wren’s referral,” “failed to use historical information as corroborating evidence,” did not run a check through the Administrative Office of the Courts, failed to do a Risk Assessment or “ignored risk factors altogether,” and “intentionally frustrated the collection of [the] information process.”
The intake worker’s identity has been closely guarded by CPS, a fact that Reynolds says has made finding out her motivations in the case more difficult.
“I really don’t hold her responsible. I think it’s a policy problem,” he said. “They have zero accountability.”
Reynolds said he hopes the case sparks legislative changes to improve CPS standards. If not, he said the next best thing would be to simply legislate through court rulings on the issue.
“If it goes to the Court of Appeals, and we win, it becomes law,” Reynolds said.
“What happened in this case is just sad. They had the ability to look up Trina’s history. They had all the info and evidence at their fingertips, but it was not utilized. Madisyn deserved better than that.”
The Cabinet for Health and Family Services has 60 days to file an appeal of Ballou’s ruling.