'Acts and omissions' led to toddler's death: Local attorneys secure financial agreement over 2-year-old's death

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By Bob Audette, raudette@reformer.com



BRATTLEBORO — The father of a 2-year-old girl who was killed by her stepfather agreed to a $500,000 settlement from the state of Vermont.

Willis Sheldon, Dezirae's father, was represented by Costello Valente & Gentry, of Brattleboro.

Half of the settlement will be used as a trust for Dezirae's half-sister, who is not the biological daughter of Willis Sheldon.

"The agreement is rewarding for Mr. Sheldon, to get some validation and to be able to do something for Desirae's half sister," said Sharon Gentry.

DCF "failed to take the necessary and required steps to keep Dezirae safe," stated a press release from Costello Valente & Gentry announcing the agreement. "Without having performed the necessary and required actions to keep Dezirae safe, DCF placed Dezirae back into the home of Sandra Eastman and Dennis Duby. DCF never determined who had broken Dezirae's legs."

The agreement was a "recognition that Dezirae's sister will be without Dezirae's love and companionship throughout her life and in hopes that Dezirae's half-sister will be able to have opportunities and education that Dezirae can no longer enjoy. The trust will be administered by an independent trustee."

Sheldon filed a lawsuit against DCF in late 2014, contending the department breached its duties to protect his daughter. The lawsuit stated as a result of the "acts and omissions" of the defendants, Dezirae Sheldon suffered physical pain, anguish and death, and that Willis Sheldon suffered the loss of his daughter.

According to a State Police investigation, the death of the 2-year-old girl from Poultney, was due to "Widespread, systemic communications failures and a lack of accountability on the part of the Vermont Department for Children and Families and other authorities ..."

Dezirae Sheldon died Feb. 21. Her stepfather Dennis Duby has been charged with second-degree murder in the killing the toddler. Duby allegedly crushed her skull. The criminal proceedings are ongoing.

According to VTDigger, DCF originally determined that her mother, Sandra Eastman, abused her daughter prior to her death, resulting in her two broken legs when she was 1 year old. Later, in an appeal, she blamed Duby. Eastman was charged with cruelty to a child because she waited two days to take the toddler to the hospital; no one was charged with the abuse. The couple married when Eastman became pregnant with Duby's child, shortly after Dezirae was removed from Eastman's home in February 2013. Yet DCF officials were unaware of Duby's presence in the household when they reunified the toddler with her mother in October 2013. Four months later, Dezirae was dead.

"A Vermont State Police investigator found that crucial information was ignored or withheld that would have led workers and attorneys to block the reunification of Dezirae with her mother and stepfather and likely would have prevented the toddler's death," noted VTDigger.

Before the settlement was reached in mediation, said James Valente, Willis Sheldon was asking for a jury trial. Valente said Costello Valente & Gentry took the case after a Rutland law firm turned it down. "Cases against the state are very difficult because of qualified immunity," Valente told the Reformer. "If you lose, you can put in hundreds of hours and have nothing to show."

Nonetheless, said Valente, the law firm took the case because "it was the right thing to do," and because Costello Valente & Gentry has years of experience working in juvenile and family court and has a deep understanding of how DCF works.

Costello Valente & Gentry also relied on the Vermont Supreme Court's decision in Kennery vs. Vermont. In that case, Costello Valente & Gentry represented Andrew Kennery, the son-in-law of Gladys Kennery, an elderly woman who lived alone in Marlboro who upon returning home from a doctor's appointment in March 2007 had fallen while walking from her car to her house and had crawled up on the porch. She was discovered the next day by a mail carrier but died 12 days later from hypothermia.

Lorraine Kennery, Gladys's daughter, was concerned about her mother returning home safely and contacted the Vermont State Police and asked it to conduct a welfare check. Troopers, however, went to the wrong home by mistake. Because the State Police assured Kennerly's family that troopers would perform the welfare check, the agency assumed responsibility for her health, said Valente, which obviated the qualified immunity defense.

According to the Lectric Law Library, "The qualified immunity doctrine protects government officials from liability for civil damages 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"

"It doesn't appear that the Kennerly and Sheldon cases would be analogous," said Valente, "but in terms of immunity, Kennerly gave us a very solid education on how to navigate that issue."

Valente said the Kennerly case and a case from the 1980s in Brattleboro concerning an insurance company's liability helped to clarify what is called "negligent undertaking," in which a party has violated a legal duty to a client. Making an offer to render assistance but increasing the risk of injury can facilitate a negligent undertaking argument, contended Valente. It was that argument that was used to reach agreements in the Kennerly case and the Sheldon case, he said. "DCF took the girl into state custody and made decisions where she should go," said Valente. "There was a potential for violence and the state's undertaking increased the risk."

"The superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating (the Kennerly family's claims)," wrote the Vermont Supreme Court. "Upon review, the Supreme Court held that the trial court erred in granting summary judgment to defendants. Genuine issues of material fact remained as to whether a duty of care was created... based upon the State's undertaking to perform the welfare check and whether the troopers breached that duty such that the State was liable under the Vermont Tort Claims Act. The Court also held that the court erred in dismissing Plaintiff's claim of gross negligence against the troopers."

But more to the point, said Valente, the reason the law firm took the case was because "It was the right thing to do. In the case of the death of a child, it's good that as lawyers were able to stand up for people."

DCF agreed to the settlement of the civil claim because of the strength of the negligent undertaking argument, said Valente, who could not discuss in detail the discussions in mediation because they were confidential.

"What was most rewarding for Mr. Sheldon was to be able to create the trust," said Valente.

Valente also noted that even though DCF and the legal system is over-burdened by the tasks mandated by law to them, it doesn't absolve them of their duty to protect the most vulnerable populations, especially children, in Vermont. Social workers questioned by the State Police did not specifically say they were over-worked, but one said she had about 100 open cases. Others mentioned problems with the computer programs.

Gentry argued that the policies and procedures to protect Desirae Sheldon were in place, and if they had been followed, she would likely be alive today.

"This wasn't a matter of underfunding or being understaffed," said Gentry. "This was a matter of not following your own policies."

A pair of DCF employees have been named in a civil suit in Windsor Superior Court. Those two cases are still pending.

Bob Audette can be contacted at 802-254-2311, ext. 160. Follow him on Twitter @audette.reformer.








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