Apr. 7-CONCORD - Lawyers sparred Wednesday over a lawsuit brought by the grandmother of a 2-year-old who died in 2013 while his mother and her boyfriend were under assessment by state child protection workers.
Noah York was smothered to death in the Somersworth apartment his mother shared with her boyfriend, Jared Pope, who is serving a 30-year prison sentence in the murder.
Two years ago, his grandmother filed lawsuit in Merrimack County Superior Court, charging the state Division for Children, Youth and Families with negligence in York's death.
According to the lawsuit, DCYF social workers failed to check Pope's background after Noah's maternal grandmother, Judith Willmonton, reported that her grandchildren were in danger. Had they done so, they would have found that Pope had faced a previous DCYF investigation into drug use and domestic violence, the suit said.
York and his brother would likely have been removed from the home, the suit reads.
Instead, DCYF social workers made at least one home visit, logged another complaint from Willmonton, and made at least one call to speak to a co-worker of the child's mother.
The lawsuit was filed by Rus Rilee, a Bedford lawyer who has successfully sued DCYF in the past over faulty child protection actions.
On Wednesday, an assistant Attorney General urged Superior Court Judge John Kissinger to dismiss the suit. Kissinger made no ruling from the bench but said he would issue a written order.
Assistant Attorney General Seth Zoracki noted that Willmonton filed the suit 2019, six years after York died and three years after a deadline set in state law to bring suit against the state.
Zoracki also said the U.S. Supreme Court has ruled that a child protection agency's duty to protect a child against someone else only starts when the agency has custody of a child.
He also noted that family unity is part of DCYF's job.
But Kissinger said, "The overriding purpose (of DCYF) seems to be the duty to protect children."
Rilee said the delay in the suit is no fault of Willmonton. She only realized the shortcomings of DCYF care when a Concord Monitor reporter shared a document with her in 2016. Once she realized the negligence, she took action.
"She had no reason to believe DCYF did anything wrong (before speaking to the reporter)," Rilee said.
But Zoracki said a reasonable person would suspect negligence at the point of the child's death. Zoracki said the New Hampshire Supreme Court has ruled that when serious injury or death results, that is sufficient notice of potential negligence.