CHARLESTON – A Kanawha County judge has issued an order denying most of a state DHHR request for summary judgment in a child abuse case that resulted in the death of a Grant County toddler.
Circuit Judge Jennifer Bailey filed the order August 29 granting in part and denying in part the West Virginia Department of Health and Human Resources’ motion for summary judgment.
Susan Lewis is the maternal grandmother of Danzel Westfall, who died on September 20, 2019, from injuries he sustained from suspected child abuse. He was being cared for by his mother Alison Westfall and her boyfriend Carlos Ortiz.
Barber
| Courtesy photo
Lewis filed her complaint in 2021 claiming DHHR failed to properly investigate abuse claims before the boy’s death.
After the boy’s death, both the mother and Ortiz were charged with felonies. Alison Westfall plead and was convicted of child neglect creating a substantial risk of death, and Ortiz plead and was convicted of second-degree murder.
Lewis says there was an open child abuse investigation that was opened in July 2019 by the DHHR’s Division of Child Protective Services.
“At the time of Danzel’s death, the CPS investigation file consisted of only an intake report and handwritten notes taken by CPS worker Brandi Lee,” the order states. “Those handwritten notes were subsequently destroyed pursuant to a DHHR policy after the notes were ‘inputted’ into a Crisis Response Worksheet and Client Contact Reports by Ms. Lee and her supervisor Niki Pansch.
“Importantly, the transcribing and inputting of Ms. Lee’s handwritten notes and the creation of the Crisis Response Worksheet and Client Contact Report occurred after CPS was notified of Danzel’s death and while the CPS investigation of child abuse initiated in July 2019 was still open or, as the defendant characterizes it, had not been ‘officially closed.’”
The order says Lee, despite no longer being a CPS employee, returned to the office at Pansch’s request to use her handwritten notes to create the worksheet. It says Pansch then used Lee’s notes to create the reports which, by DHHR policy, should have been completed by Lee immediately after, or as soon as possible after, her client contacts had occurred.
In this instance, that didn’t happen for more than two months after the specific events under CPS investigation had occurred.
“Therefore, even though the documents facially imply that certain events in the investigation occurred on specific dates in July 2019, the accuracy and contemporaneousness of the information in the DHHR case file is in question as the investigation was ongoing since July 2019,” the order states, adding Pansch testified that she never had had to call in a former CPS worker to complete a case file related to an investigation. It also says the monitoring system would have alerted Pansch that the initial report had not been filed in the system.
Lewis had notified DHHR of concerns she had about Danzel’s safety. The initial DHHR report of July 15, 2019, said Ortiz was believed to be physically abusing the boy while the mother “does not appear to care and allows it to continue.” The report also says Lewis saw the boy with bruising around his mouth with two missing teeth, and it says he had been seen with facial bruises, knots and lacerations.
The order says there are other inconsistencies in DHHR records regarding the situation, including photos Lee said she took July 15 but actually were taken four days later. A medical provider’s note also supports the idea that Lee didn’t actually meet with the mother until July 19, 2019.
The order also quotes child welfare expert witness Nicol Stolar-Peterson, who raised concerns about several inaccuracies and inconsistencies in the record of the case. She said Lee was required to have Danzel seen by a specialist for a child welfare assessment rather than relying on an emergency room doctor who had no specialty in detecting and treating child abuse. She also says the boy was “extremely high risk for child abuse” based on his age and history in the home.
“In her view, it would not be enough simply for Ms. Lee to review the medical records because collateral contacts must be thorough and meaningful,” the order states, adding Stolar-Peterson had said, “I would absolutely disagree with them being thorough or even meeting a minimum standard.”
It also says the failure to interview Ortiz violated CPS policy, and it says there is no documentation that physical abuse had been reported to law enforcement. It also says CPS should have had a face-to-face visit with the boy once a month but failed to do so from July 2019 until his death in September 2019.
During that time, the boy was injured and unable to put weight on one leg, was seen twice at a medical facility about that injury, had a dental visit that revealed two missing teeth and suffered a severe head injury before he died.
Ruby Memorial Hospital records say Danzel fell about 5 feet from a balcony and hit his head on a wooden beam. It says Ortiz called EMS, but it goes on to say the boy’s “combination of injuries was not possible from his stated fall of 5 feet. … With the stated history, this injury could only have been the result of abusive inflicted injury.”
A Ruby Hospital radiologist said Danzel’s old fractures ranged in age from one week to more than four weeks.
The order says Stolar-Peterson thinks the outcome could have been different if CPS handled the situation properly, including inputting the notes in a timely fashion. She also believes CPS should have gone to the hospital with the mother and had the mother and her boyfriend tested for drugs.
She also was bothered by the fact that Ortiz had been reported to CPS previously for putting his fingers down the mouth of a small child, which is similar to allegations in this case, and she cites numerous other violations of CPS policies.
The DHHR moved for summary judgment, saying it is entitled to statutory immunity and qualified immunity. The DHHR also says the claim fails as a matter of law and that causation was too speculative, meaning there was no evidence showing a clear nexus between the DHHR’s actions and Danzel’s death.
Bailey says a jury may reasonably find that DHHR engaged in collusion, dishonesty, fraud and other tortious conduct “far from performing honestly or with their best efforts” that was not in the best interest of the child. She also writes that a jury should determine if the mother and Ortiz were the only causes of Danzel’s injuries and death.
She denied the DHHR’s motion for statutory immunity, qualified immunity and proximate cause because of “multiple genuine issues of material fact” that preclude the agency from being entitled to it and because there is a question of whether the DHHR acted in good faith.
Bailey did grant summary judgment regarding Lewis’ claims based on the state Constitutional tort premised upon an individual’s right to personal bodily integrity or the state-created danger exemption.
Lewis is being represented by James Barber of The Hartley Law Group in Charleston and Lonnie Simmons of DiPiero Simmons McGinley & Bastress in Charleston
Kanawha Circuit Court case number 21-C-503