Jun. 3—CONCORD — The state Division for Children, Youth and Families has lost an early challenge over a lawsuit filed by a grandmother who faults the care that DCYF provided to her grandson before his suffocation death in 2013.
In a ruling issued Tuesday, Merrimack County Superior Court Judge John Kissinger rejected a request by lawyers representing DCYF to dismiss the suit over the death of Noah York, age 2, in Somersworth.
His grandmother, Judith Willmonton, had called DCYF twice to report that her daughter was neglecting Noah and his younger brother, according to court files. Although child protection workers took some steps to address the complaints, Noah died when his mother's boyfriend suffocated him.
Willmonton said the brothers acted up during rare visits, and on Facebook posts she saw images of the two with shaved heads, injuries and the life draining out of their eyes. She said she called DCYF nine times, but the agency failed to do its job.
"Even if I don't get a dime, I just care about justice being done," Willmonton said Thursday. "I feel deep down it's my fault, and I just want the weight off my shoulders."
Jared Pope is spending 30 years in state prison for the murder. Although DCYF knew that the boys and their mother had moved in with Pope, protection workers never checked his background, which included complaints of domestic assault and drug use, court records say.
Deputy Attorney General Jane Young said the case is still pending and she cannot comment on Kissinger's order. The order is but one step in the court process, Young said.
Attorneys for Attorney General John Formella had argued that the lawsuit was filed too late, that DCYF does not owe a legal duty of care to children identified in complaints, and that any duty of care would interfere with parental rights and a provision in state law that encourages family unity.
"The Court is not persuaded that because the agency should keep families together whenever possible, that it was relieved of its duty to take necessary actions and investigations after a child was twice reported neglected," Kissinger wrote.
Willmonton is represented by Bedford lawyer Rus Rilee, who has won several cases against DCYF for the way it handled child abuse and neglect cases. That includes a $6.75 million settlement in 2018 in a case that moved lawsuits over faulty child abuse investigations into open court.
Willmonton filed the lawsuit in 2017, which exceeded a three-year statute of limitations for bringing such cases. Rilee had said that the three year limitation period does not begin until the plaintiff realizes the negligence took place, and Willmonton did not realize DCYF's shortcomings until a Concord Monitor reporter contacted her in 2016.
The DCYF had said that the child's death should have been enough evidence of negligence. The judge did not agree.
"Prior to receiving the report from the newspaper, the plaintiff could not reasonably have known that DCYF was negligent in its handling of Noah's case," Kissinger wrote.