CHARLESTON – A Hardy County woman says the state Department of Health and Human Resources’ failure to investigate an abuse allegation led to the death of her grandson.
Susan Lewis, administrator of the estate of Danzel Westfall, filed her complaint in Kanawha Circuit Court against the DHHR and unknown DHHR supervisors.
According to the complaint, Danzel lived with his mother Allison Westfall and her boyfriend Carlos Ortiz in Moorefield. Danzel was born April 18, 2018. Lewis is Allison Westfall’s mother.
Barber
Lewis, who says she occasionally babysat Danzel, says she observed injuries on the toddler’s body in July 2019. She called DHHR to report her suspicions that Ortiz might be physically abusing the boy.
The complaint quotes a report that detail what Lewis told a DHHR employee.
“It is stated that the boyfriend (Ortiz) takes the male child into a room in the home and closes the door, often,” the report stated. “It is unknown how often this occurs or what is occurring in the room. The mother does not appear to care and allows it to continue. …
“It is stated that over the weekend, the male child was seen with bruising around his mouth, and he is missing two teeth. In the past few weeks, the child has been seen with several facial bruises, knots and lacerations as well as lacerations on his side and a bloody eye.
“These injuries never appear to be consistent with the explanations the mother provides. The mother will not take the child to the hospital when any of these injuries occur.”
The complaint says DHHR conducted an investigation that included speaking to Lewis, Allison Westfall and another babysitter. It says Ortiz was not interviewed. The investigation concluded all abuse and neglect claims against Ortiz and Allison Westfall were not substantiated.
On September 18, 2019, emergency officials responded to a call of an unconscious toddler at the residence. Ambulance workers found the door locked when they arrived at the scene.
“EMS continued to bang on the door, and a man opened the door and had an unresponsive toddler on his shoulder and was patting him on the back,” the complaint states.
Ortiz was questioned by Moorefield Police Chief Stephen Riggleman.
“Ortiz advised police he had taken the child outside, they had just taken a shower, he stood the child on the porch railing and looked away for a second,” the complaint states. “Ortiz advised the child may have jumped or fell/ Ortiz advised he observed the child smack his head on the sidewalk or a piece of wood.”
The toddler was flown to Ruby Memorial Hospital in Morgantown. He was found to have a sustained closed fracture of the skull, a subdural hematoma and loss of consciousness.
The boy died September 20, 2019.
A postmortem report said the toddler had severe injuries, including the skull fracture, old fractures, contusions and hemorrhages.
“With the stated history, injuries could only have been the result of abusive injury,” the report states.
Ortiz was indicted for murder and entered a guilty plea. Allison Westfall entered a guilty plea to a lesser charge related to her son’s death. Both are incarcerated.
Lewis says the defendants failed to properly investigate her abuse allegation she made two months before the boy’s death. She says DHHR didn’t seek documentation regarding her July report until three days after Danzel died.
She also claims DHHR had legal responsibilities regarding investigations into allegations of abuse.
She accuses the defendants of ordinary and gross negligence and reckless misconduct.
She seeks compensatory damages for sorrow, mental anguish, emotional distress and bereavement as well as loss of society, services, companionship, comfort, kindly offices and consortium in addition to loss of services, protection, care and assistance provided by Danzel. She also seeks expenses for care, treatment and hospitalization of Danzel as well as funeral costs.
In addition, she seeks economic and non-economic damages listed as well as for medical bills, court costs, attorney fees and other relief. She also seeks punitive damages for the defendants’ conduct.
Lewis is being represented by attorney James M. Barber of Charleston. The case has been assigned to Circuit Judge Jennifer Bailey.
Kanawha Circuit Court case number 21-C-503
