SAN FRANCISCO (CN) - A federal judge found Napa police and social workers may have been negligent in the days leading up to the beating death of three year-old Kayleigh Slusher last year, but her relatives haven't shown that their inaction increased the risk to Kayleigh's life.
"Here, the risk to Kayleigh was the fact that she lived with adults who were abusive. While defendants were allegedly derelict in their failure to extricate Kayleigh from that situation, no facts are alleged that suggest that they placed her in danger or affirmatively increased the risk of harm to her through their inaction," U.S. District Judge Saundra Brown Armstrong wrote.
Kayleigh's paternal grandparents, Benny and Robin Slusher, and her father Jason sued Napa police and county social workers in June claiming that Kayleigh's murder could have been prevented.
Kayleigh was found dead on Feb. 1, 2014, in the apartment where she lived with her mother Sara Krueger and her mother's boyfriend, Ryan Warner. Krueger and Warner, both 23, were nabbed at the El Cerrito del Norte Bay Area Rapid Transit station - an hour drive from Napa - the day after Kayleigh's body was found. They were charged with murder and assault and could face the death penalty. Their case is still pending.
"Construing the facts in a light most favorable to plaintiffs, the pleadings, at most, demonstrate that defendants knew or had reason to know that Kayleigh was at serious risk of harm. Absent from the pleadings are any facts demonstrating that defendants affirmatively placed Kayleigh in a position that increased such risk," Armstrong wrote.
"Judge Armstrong agreed with us. We find that encouraging, considering it's the plaintiffs' version of the facts as alleged in their complaint," Gregory Mellon Fox, attorney for the city of Napa, said. "I think the judge is mindful that under federal civil rights law there's a very high burden on the plaintiffs. This is a very obvious tragedy, and it's our position that what a reasonable officer saw and observed would not have induced a feeling other than she was not at imminent risk."
Armstrong said the family must amend its due process, Monell and Bane Act claims, but that they have stated a plausible claim for negligence.
"The whole ruling was a mixed bag," the family's attorney Michael Haddad said. "Judge Armstrong found there is a strong basis for the negligence claims, and she granted leave to amend because both the city and county have worked very hard to keep the family in the dark so far."
Haddad said up until recently the family has not had any access to the police reports, in part because of a protective order in place due to the pending criminal trial against Krueger and Warner, and because of "a circling of the wagons" by the city and county of Napa.
"They're not telling us the whole story," Haddad said, adding that with a recent court decision to provide the family with some police reports, "we're finally on the verge of getting basic information."
Fox also said the protective order and coinciding criminal proceedings have made resolution of the family's civil claims more difficult. "We have to walk a fine path between what we can talk about with the civil case to not jeopardize the criminal case."
The preliminary hearing was held in the criminal case this past month, nearly two years after Kayleigh's death. Haddad said more information came out of that hearing that will be helpful for the family's claims.
"When we wrote the most recent complaint, the preliminary hearing still hadn't happened," Haddad said. "It finally took place and we learned a lot more information and facts. So we'll certainly have some additional facts to put in."
According to the lawsuit, Robin Slusher says she called Napa County Child Welfare Services on Jan. 27, just days before Kayleigh death, to report that the child was being deprived of food, that Kreuger and Warner were using drugs, and that there was an outstanding arrest warrant for Warner. She says two social workers told her there was nothing they could do and she should call the police.
Robin Slusher said she had already called the police on Jan. 23, and that an officer chose not to enter Krueger's and Warner's apartment to investigate "because he determined that the environment in which Kayleigh lived was not safe for him or his partner to go there." She said the officer and a partner returned to the apartment on Jan. 29 after she'd called a second time, but Krueger denied them entry to the apartment. According to the complaint, they saw bruises on Kayleigh's face.
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