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Date: 08-10-2013

Case Style: Kala Lee Whitecrow v. State of Oklahoma

Case Number: CJ-2010-8439

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Don Strong and G. Stephen Martin

Defendant's Attorney: Ricahrd W. Freeman, Jr. and Joseph W. Strealy for State of Oklahoma, ex rel., Oklahoma Department of Human Services

Michael J. (Mike) Masterson for Mike and Amy Holder

Description: Kala Lee Whitecrow and antoine D. Jones, individually and as next-of-kin of Naomi Lynn Whitecrow sued the State of Oklahoma, ex rel. Oklahoma Department of Human Services, Amy Holder and Mike Holder on wrongful death theories claiming:

1. Naomi Lynn Whitecrow (“Naomi”) was, at the time of the actions complained of herein, a two (2) year old minor resident of the State of Oklahoma, in the custody ofDHS, who died on January 20, 2009.

2. Plaintiffs are the surviving natural parents and next-of-kin ofNaomi and residents of the State of Oklahoma.

3. Defendant DHS received notice of Plaintiffs’ claims pursuant to the Oklahoma Governmental Tort Claims Act, 51 O.S. § 151, et seq.,on or about January 19,2010, within one (1) year of the date of Naomi’s final injuries and death. Defendant made no reply within the 90 days subsequent to their receipt of said notice and therefore Plaintiffs’ claims were deemed denied. This action is timely filed within 180 days of the date of said denial.

4. Amy Holder and Mike Holder were, at the time of the actions complained of herein, and remain, residents of the State of Oklahoma.

5. DHS’s principal place of business is Oklahoma County, Oklahoma where service may be had upon said Defendant; as a result, this Court maintains jurisdiction over the subject matter and persons involved in this litigation and venue is proper before this Court.

OPERATIVE FACTS

6. On or about February 20, 2008, Naomi was taken from the custody of her mother, Kala Lee Whitecrow, by and placed into the custody of, DUS.

7. On or about January 20, 2009, while in the foster home in which she was placed by DHS, Naomi died from injuries to her head, trunk and extremities. These injuries were caused by the negligent acts of commission or ommission by her foster parent or parents, Amy Holder and/or Mike Holder, The location where the death occurred was in Edmond, Oklahoma.

8. Autopsy results indicate a pattern of child abuse that was both long-term and current at the time of Naomi’s death. Defendants individually and collectively knew or should have known that Naomi suffered from significant injuries at least a week prior to Naomi’s death, and through, inter alia, deliberate indifference, willful neglect, negligence, and a wanton disregard of the health, safety and welfare of Naomi, continued to subject the child to the state-created danger that led directly to her death.

9. Pursuant to 12 0.S. 1051 et seq., Plaintiffs claim, on behalf of the parents, damages FIRST CAUSE OF ACTION (Amy and Mike Holder: Negligence/Wrongful Death)

10. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

11. On information and belief, Amy and Mike Holder were aware of their contractual and statutory obligation to care forNaomi’s safety and well-being. Further, said Defendants were aware of two (2) year old Naomi’s particular vulnerabilities as a toddler and of the dangerous environment their negligence, lack of adult supervision and abuse created for her.

12. The Holders acted negligently and with deliberate indifference to Naomi’s needs, without regard to the consequences oftheir neglect to Naomi, and inreckless disregard forher safety, all of which resulted in her death. By way of example only, the Holders were aware beginning at least in the month of October 2008, that Naomi was having numerous mental, physical and emotional problems. By mid-November, they were aware or should have been aware that Naomi’s health was declining. It is believed that Defendant Amy Holder, for example, performed the Heimlich maneuver on Naomi four to five (4 to 5) times per week and that Naomi began to be unstable and fell twenty to thirty (20 to 30) times per day. It is also believed that Naomi began to choke on her food. Yet no physician’s appointment was scheduled by the Holders for Naomi until January 15, 2009, five (5) days prior to Naomi’s death. The appointment scheduled at that time was only a “well child” appointment, and not substantive enough or designed to determine the true nature and extent of Naomi’s physical, mental and emotional problems.

13. The Holders owed Naomi a duty of due care and to take reasonable measures for her safety and well-being while under their care. The Holders, individually and collectively, breached the requisite duty of care by failing to obtain medical treatment for Naomi, allowing or forcing her to gorge herself at meals, and for the general and overall decline in Naomi’s health when medical and other treatment was available without cost for Naomi. Further, the Holders knew, should have known or were aware, that their home environment was not safe for Naomi, and through neglect, indifference, lack of supervision and/or abuse, allowed Naomi to be physicallyinjured, and die from those injuries. By way of example only, Defendant, Mike Holder, knew or should have known of the mental, emotional and physical problems Naomi was experiencing and the rapid and dramatic decline in her health. Mike Holder, through willful neglect and indifference, breached the requisite duty of care by failing to investigate further and secure medical and other treatment services available to the Holders at no cost.

14. Defendants Holders breached their duty of care and such breach was aproximate and direct cause of Naomi’s heinous injuries and wrongful death.

WHEREFORE, Plaintiffs pray for judent against Defendants Amy and Mike Holder in an amount in excess of SI 0,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, as well as any other damages allowed under Oklahoma law, together with pre-judgment and post-judgment interest, and costs, including reasonable attomeys fees; and exemplary and punitive damages against such Defendants in an amount in excess of $10,000.00 to deter such Defendants from the neglect of their duties, committing such reckless and/or malicious acts in the future and to apprise the public at large that society does not condone such acts.

SECOND CAUSE OF ACTION

(DHS: Negligence/Wrongful Death)

15. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

16. Upon information and belief, DHS Defendants were aware, should have been aware and/or had a duty to become aware of the onset of abnormal behavior of Naomi while in the Holder home. Such behavior should have been a warning to DHS that something in the Holder home was threatening to Naomi either physically or emotionally. The failure to investigate this behavior or take any action increased Naomi’s vulnerability by leaving her in a dangerous state-created environment.

17. DHS knew, or should have known, of the changes in behavior ofNaomi while in the Holders’ care. With deliberate indifference and conscious disregard to those dangers to Naomi’s health and safety, DHS failed to remedy the dangerous circumstances and/or deficiencies in the Holders’ household, putting Naomi at substantial risk of serious, immediate, and proximate harm. 18. On information and belief, DHS knew, or should have known, that the Holder Defendants created a danger to Naomi’s health and well-being, resulting in her heinous and fatal injuries. 19. DHS failed to ensure Naomi’s reasonable care and safety while in DHS custody, were deliberately indifferent to the known risks to Naomi’s health and safety, and suspected or knew that the Holder home was dangerous. DHS Defendants owed a duty to Naomi of due care, appropriate supervision of her foster home and to take reasonable measures for her safety and well-being while in DHS custody and in the Holder’s’ home.


20. DHS breached their duty to correct any dangerous conditions and provide for Naomi’s safety and well-being, and such breach was a proximate and direct cause of Naomi’s wrongful death.

21. As a result of DHS’s acts and omissions, Naomi endured physical pain, suffering, mental pain and anguish, and death. WHEREFORE, Plaintiffs pray for judgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

THIRD CAUSE OF ACTION

(DHS: OGTCAlNegligence/Wrongful Death/I? espondeat Superior via DHS)

22. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

23. DHS owed Naomi Whitecrow a non-delegable duty of due care and a duty to take reasonable measures for her safety and well-being, while in DHS custody.

24. DHS employees, acting in the scope of their employment, breached their duty, and such breach was a proximate and direct cause of Naomi’s heinous injuries and wrongful death. DHS ‘s employees’, servants’ and agents’ acts and omissions were done with deliberate indifference, knowing that their conduct would, more likely than not, cause serious injury and harm to Naomi.

25. Defendant DHS is liable for the acts and omissions of its employees, under the doctrine of respondeat superior.

26. As a result of DHS’s negligence, Naomi endured physical pain, suffering, mental pain, anguish, and death.

WHEREFORE, Plaintiffs pray forjudgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

FOURTH CAUSE OF ACTION

(DHS: OGTCAfNegligencelWrongful Death!

Respondeat Superior via the Holders)

27. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

28. As Foster Parents under contract with DHS, Defendant Holders owed Naomi a duty of due care and to take reasonable measures for her safety and well-being while under their care.

29. Defendant Holders breached their duty and such breach was a proximate and direct cause of Naomi’s heinous injuries and wrongful death.

30. As a result of Defendants’ negligence, Naomi endured physical pain, suffering, mental pain, anguish, and death.

31. Defendant DHS is liable for Defendant Holders” acts and omissions, under the doctrine of respondeat superior.

32. As a result of DHS’s negligence, Naomi endured physical pain, suffering, mental pain, anguish, and death.

WHEREFORE, Plaintiffs pray forjudgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and thneral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

PREDICATE FACTUAL ALLEGATIONS TO CAUSES OF

ACTION FIVE THROUGH EIGHT

33. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

34. DHS bears the responsibility for having operated - and continuing to operate - a foster care system in which children routinely become victims of DHS’s failures. These failures include, inter ala: Excessive caseworker caseloads and an inexperienced and unstable workforce. For many years, the Oklahoma Child Death Review Board has recommended the hiring of more caseworkers to meet reasonable professional standards in order to reduce the number of deaths due to child abuse or neglect. While those standards limit caseloads to twelve to fifteen children per caseworker, DHS caseworkers are regularly assigned more than fifty children each, with some case workers responsible for more than one hundred children. As a result, caseworkers cannot make required visits with foster children and care givers, and cannot adequately monitor child safety. The high caseloads also contribute to high turnover and an inexperienced workforce.

Grossly inadequate payment for the care of foster children. Oklahoma fails to provide payments to those caring for foster children that even approach the actual cost of those children’s care. The “foster care maintenance payments” set by DHS are grossly insufficient to provide basic support for foster children, attract qualified foster parents and contribute to the shortage of foster homes.

35. As a result of these failures, many of which occurred in the instant matter, DHS harmed Naomi and exposed her to imminent risks of harm, including the following:

Abuse or neglect of foster children by foster parents or facility staff. For the past five years, Oklahoma has been among the worst three states in the nation, and for two years the very worst in the nation, in its rate of “abuse in care” of foster children. This includes physical abuse, sexual abuse or extreme neglect inflicted on foster children by foster parents or staff at shelters or other facilities. Abuse of children in state foster care custody takes place at a higher rate than for children in the general population: in two of the past five years, the “abuse in care” rate of children in DHS custody exceeded the rate of child abuse or neglect in the general population in Oklahoma. And these statistics actually minimize the reality of in-care abuse; the rates reported by DHS significantly undercount the actual frequency of such abuse.

• Denial of opportunities to maintain critical family relationships. Naomi was routinely separated from her siblings who are also in DHS custody and DHS failed to arrange visits or other contact with siblings. DHS also failed to provide to Naomi routine visits and other contact with biological parents.

• Frequent moves among multiple inappropriate homes and facilities. While in DHS custody, Naomi was moved in a seven month period of time, on four different occasions with the last move culminating in her care by the Defendant Holders. Such routine moves inflicted psychological harm and destroyed Naomi’s trust in adults, preventing her from developing an attachment to any family.

36. These failures and harms have been well documented and known to DHS for many years. In the face of that knowledge, DHS has consistently failed to address, let alone ameliorate, these failures in Naomi’s case. The harms - the physical, emotional and psychological injury and deterioration of Naomi while in DHS custody, and the imminent risks of such harms to which she was repeatedly exposed, are the direct result of the failures by DHS alleged in this Petition.

FIFTH CAUSE OF ACTION

(DHS:Substantive Due Process Under the Fourteenth Amendment to the United States Constitution)

37. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

38. The State of Oklahoma, by and through DHS, assumes an affirmative dutyunder the Fourteenth Amendment to the United States Constitution to protect a child from harm when it takes that child into its foster care custody as it did in the case Naomi.

39. The policies and practices of DHS, constituted a failure to meet the affirmative duty to protect Naomi from harm and to keep her reasonably free from harm, which is a substantial factor leading to, and proximate cause of, the violation of the constitutionally protected liberty and privacy interests of Naomi.

40. The policies and practices ofDHS constitute a policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise of any professional judgment and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of Naomi. As a result, Naomi was at a continuing and imminent risk of harm, and was in fact harmed by DHS ‘s actions and was additionally deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.

WHEREFORE, Plaintiffs pray for judgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

SIXTH CAUSE OF ACTION

(DHS: First, Ninth, and Fourth Amendments to the United States Constitution)

41. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if fully set forth herein.

42. The policies and practices of DHS constituted a failure to exercise an affirmative duty to protect the welfare of Naomi, which failure was a substantial factor leading to, and a proximate cause of, the violations of the constitutionally protected liberty interests, privacy interests and associational rights of Naomi.

43. The policies and practices of DHS, amounted to a policy, pattern, custom and/or practice that was outside the exercise of any professional judgement and amounted to deliberate indifference to Naomi’s constitutional rights. As a result, Naomi was deprived of her liberty interest, privacy interests and associational rights conferred on her by the First, Ninth, and Fourteenth Amendment to the Untied States Constitution not to be deprived of a child-parent or a child-sibling family relationship.

WHEREFORE, Plaintiffs pray forjudgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

SEVENTH CAUSE OF ACTION

(DHS: Procedural Due Process Under the Fifth and Fourteenth

Amendments to the United States Constitution)

44. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if frilly set forth herein.

45. The policies and practices ofDHS constituted a failure to exercise an affirmative duty to protect the welfare of Naomi, which is a substantial factor leading to, and a proximate cause of, the violation of the constitutionally protected liberty and privacy interests of Naomi while in DHS custody.

46. The policies and practices of DHS, constituted a policy, pattern, custom and/or practice of failing to exercise any reasonable professional judgment and of deliberate indifference to the constitutionally protected liberty and property interests of Naomi. As a result, Naomi was harmed and deprived ofboth federal and state-created liberty or property rights without due process of law.

WHEREFORE, Plaintiffs pray forjudgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

EIGHTH CAUSE OF ACTION

(DHS: Breach of Federal Contractual Obligations to Third Party Beneficiaries)

47. Plaintiffs adopt and incorporate the allegations set forth in the previous paragraphs of this Petition as if filly set forth herein.

48. Under Titles TV-B and W-E of the Social Security Act, Oklahoma received certain federal monies so long as it entered into plans approved by HHS and complied with their terms. Oklahoma received federal funding under Titles TV-B and W-E of the Social Security Act and had submitted such State Plans to the federal government, which was a legal contract between the federal government and the State, and such plans were approved. In these contracts, Oklahoma agreed to provide child welfare, foster care, and adoption services to Naomi in accordance with specific statutes, regulations, and policies and all applicable federal regulations and other official issuances of the United States Department of Health and Human Services.

49, The policies and practices of DHS breached its obligations under Oklahoma’s State Plan contracts, and Naomi, as an intended direct third-party beneficiary to these State Plan contracts, was (I) denied her rights under law to the services and benefits that the State of Oklahoma was obligated to provide to them under such contracts, and (ii) and harmed thereby.

WHEREFORE, Plaintiffs pray forjudgment against Defendant DHS in an amount in excess of $10,000.00, for physical pain, suffering, mental pain and anguish, parental grief, the loss of companionship and love of Naomi, destruction of the parent-child relationship, medical expenses, and funeral expenses, plus pre-judgment and post-judgment interest, and costs, including reasonable attorneys fees; and any such other and further relief as the Court may, in law or in equity, deem reasonable and proper.

The State of Oklahoma filed a motion to dismiss.

The Court ruled as follows:

On May 20, 2011, this case came before the tourt for hearing on the Motion to Dismiss of the Defendant Oklahoma Department of Himan Services (“DHS”) filed herein on March 31, 2011. The Plaintiffs and Defendant DI-S appeared at the hearing through their respective attorneys of record.

In its Motion, Defendant DHS seeks dismissa1of this action pursuant to 12 O.S. §2012(B)(5) and (6) on the wounds that (1) service f process on DHS in this case is insufficient under 51 O.S. § 163(E) and (2) the Plaintiff’ Petition fails to state a claim upon which relief can be wanted against DHS because DFS is exempt or immune from tort liability under the Oklahoma Governmental Tort Clai s Act, 51 O.S. §151, et seq., as a matter of law for the Plaintiff’s tort causes of action alleed against DHS in the second, third and fourth causes of action of the Second Amended P tition. The Plaintiffs have filed a brief in opposition to Defendant DHS’s Motion.

Upon consideration of the instant Motion, te bdefs of the parties, and the arguments of counsel, the Court determines that swice of process has now been perfected on Defendant DHS in this case and the instant Motion should be denied as moot insofar as dismissal of this action is sought under §2012(B)(5). In addition, the Court is not persuaded on the basis of the record currntly before the Court in this case that the Plaintiffs can prove no set of facts in support o’the allegations in of their Petition that would entitle them to relief against Defendant IJHS as to the Second and Third causes of Action. Accordingly, the Court finds and concludes that Defendant DHS’s motion to dismiss should be denied as to the Second and Third Causes of Action in the Second Amended Petition but sustains the DHS Moti&i as to the Fourth Cause of Action against DHS brought under the Respondeat Superior theory. Defendant DHS is hereby directed to answer the Plaintiff’s Second Amended Petition within twenty (20) days hereof.

The State of Oklahoma, ex rel. Department of Human Services answered as follows:

1. Defendant DHS admits the allegations of 1 of the Second Amended Petition.

2. Defendant DHS admits the allegations ofl2 of the Second Amended Petition.

3. Defendant DHS admits the allegations of ¶3 of the Second Amended Petition.

4. Defendant DHS is without sufficient knowledge or information upon which to form a belief as to the truth of the allegations ofl4 of the Second Amended Petition.

5. Defendant DHS admits the allegations ofl5 of the Second Amended Petition. “OPERATIVE FACTS”

6. Defendant DHS admits the allegations of6 of the Second Amended Petition.

7. Defendant DHS admits that Naomi Lynn Whitecrow died on January 20, 2009, from injuries she received while she was in foster care in Edmond, Oklahoma, as alleged in ¶7 of the Second Amended Petition but DHS denies the remaining allegations of ¶7.

8. Defendant DHS denies the allegations of ¶8 of the Second Amended Petition.

9. Defendant DHS admits the nature of the damages sought by the Plaintiffs in this action as alleged ¶9 of the Second Amended Petition but DHS denies that it is liable to the Plaintiffs for any such damages claimed herein.

“FIRST CAUSE OF ACTION”

“(Amy and Mike Holder: Negligence/Wrongful Death)”

10. For its answer to ¶10 of the Second Amended Petition, Defendant DHS adopts and reasserts its responses to ¶1 through ¶9 set forth above.

11. The allegations of ¶11 of the Second Amended Petition do not pertain to Defendant DHS and therefore require no response from DHS.

12. The allegations of ¶12 of the Second Amended Petition do not pertain to Defendant DHS and therefore require no response from DFIS.

13. The allegations of ¶13 of the Second Amended Petition do not pertain to Defendant DHS and therefore require no response from DHS.

14. The allegations of ¶14 of the Petition do not pertain to Defendant DHS and therefore require no response from DHS.

“SECOND CAUSE OF ACTION”

“(DHS: Negligence/Wrongful Death)”

15. For its answer to ¶15 of the Second Amended Petition, Defendant DHS adopts and reasserts its responses to ¶1 through ¶14 set forth above.

16. Defendant DHS denies the allegations off 16 of the Second Amended Petition.

17. Defendant DHS denies the allegations of ¶17 of the Second Amended Petition.

18. Defendant DHS denies the allegations ofll8 of the Second Amended Petition.

19. Defendant DHS denies the allegations of ¶19 of the Second Amended Petition.

20. Defendant DHS denies the allegations ofl2O of the Second Amended Petition.

21. Defendant DHS denies the allegations ofl2l of the Second Amended Petition.

“THIRD CAUSE OF ACTION”

“(DHS: OGTCAINegligence/Wrongful Death/ Respondent Superior via DHS)”

22. For its answer to ¶22 of the Second Amended Petition, Defendant DHS adopts and reasserts its responses to ¶ 1 through ¶21 set forth above.

23. Defendant DHS denies the allegations ofl23 of the Second Amended Petition.

24. Defendant DHS denies the allegations ofl24 of the Second Amended Petition.

25. Defendant DHS admits the allegations of ¶25 of the Second Amended Petition but denies any negligence by its employees in connection with events alleged herein.

26. Defendant DHS denies the allegations ofl26 of the Second Amended Petition.

“FOURTH CAUSE OF ACTION”

“(DHS: OGTCAINegIigence/Wrongful Death! Respondent Superior via the Owens)”

27. For its answer to ¶27 of the Second Amended Petition, Defendant DHS adopts and reasserts its responses to ¶1 through26 set forth above.

28. The Plaintiffs’“Fourth Cause of Action” against Defendant DHS was dismissed by the Court on May 31, 2011, and therefore DilS denies the allegations of ¶28 of the Second Amended Petition.

29. The Plaintiffs’“Fourth Cause of Action” against Defendant DHS was dismissed by the Court on May 31, 2011, and therefore DHS denies the allegations of ¶29 of the Second Amended Petition.

30. The Plaintiffs’“Fourth Cause of Action” against Defendant DHS was dismissed by the Court on May 31, 2011, and therefore DHS denies the allegations of ¶30 of the Second Amended Petition.

31. The Plaintiffs’“Fourth Cause of Action” against Defendant DHS was dismissed by the Court on May 31, 2011, and therefore DHS denies the allegations of ¶31 of the Second Amended Petition.

32. The Plaintiffs’“Fourth Cause of Action” against Defendant DHS was dismissed by the Court on May 31, 2011, and therefore DHS denies the allegations of ¶32 of the Second Amended Petition.

AFFIRMATIVE DEFENSES

First Defense

The Plaintiffs’ Second Amended Petition fails to state a claim upon which any relief can be granted against Defendant DHS.

Second Defense

The Plaintiffs’ action against Defendant DHS is barred by 51 0.5. § 154 to the extent that damages in excess of the amounts specified therein are sought against this Defendant.

Third Defense

Defendant DHS is exempt from tort liability in this case (in whole or in part) pursuant to the applicable provisions of 5l 0.S. §155.

Fourth Defense

The Plaintiffs’ alleged injuries and damages, if any, (and the death of Naomi Lynn Whitecrow) were caused by the actions of independent third parties over whom these Defendants had no control.

Fifth Defense

Defendant DHS reserves the right to plead additional defenses, including additional affirmative defenses, within a reasonable time upon the completion of discovery or according to the schedule established by the Court.

WHEREFORE, Defendant DHS prays that the Plaintiffs take nothing by way of their causes of action herein; that this Defendant be awarded its costs and attorney’s fees incurred herein; and that this Defendant be awarded such other relief as the Court may deem just and proper.

Joint Motion for Approval of Settlement

COME NOW the Plaintiffs, Kala Lee Whitecrow and Antoine D. Jones, Individually and as next-of-kin of Naomi Lynn Whitecrow, deceased, and by the Defendant Oklahoma Department of Human Services (“OKDHS”), through their respective attorneys, and jointly move the Court pursuant to 51 O.S. § 158(A) to approve the settlement reached by the Plaintiffs and Defendant DHS as explained below.

BRIEF IN SUPPORT OF JOINT MOTION FOR APPROVAL OF SETTLEMENT

In this case, the Plaintiffs seek damages against the Oklahoma Department of Human Services, under the Oklahoma Governmental Tort Claims Act (“GTCA”), as amended, 51 O.S. §, et seq. The parties have reached an agreement to settle the Plaintiffs’ claims. Among its terms, this agreement requires a settlement payment to be paid to the Plaintiffs by the State of Oklahoma on behalf of DHS in an amount in excess of $25,000.00. However, under the GTCA, any settlement in excess of $25,000.00 which (as in the instant case) “will not be paid through an applicable policy of insurance. . . shall not be effective until approved by the district court and entered as a judgment as provided bylaw. 51 0.S. § 158(A). Therefore, the undersigned counsel for the parties respectfully submit that the terms of their settlement in this case are proper and reasonable for all parties thereto and may be approved the Court under § 158(A). Accordingly, the parties urge that their “Joint Motion for Approval of Settlement” be granted and that the Court then enter judgment in accordance therewith pursuant to 51 O.S. § 158(A). A proposed “Agreed Judgment and Order Approving Settlement” is submitted herewith for the Court’s consideration.

Outcome: Dismissal with prejudice as to Amy Holder and Mike Holder filed June 26, 2012.

The Plaintiffs' claims against DHS were settled and approved by the Court as follows:

This matter comes before the Court pursuant to 51 O.S. § 158(A) for consideration of the “Joint Motion for Approval of Settlement” filed by the Plaintiffs Kala Lee Whitecrow and Antoine D. Jones, Individually and as next-of-kin ofNaomi Lynn Whitecrow, deceased, and by the Defendant Oklahoma Department of Human Services (“OKDHS”).

Upon consideration of the parties’ Joint Motion, the Court Finds and concludes that the same should be granted. Therefore, the Court determines that the settlement agreement entered into by the Plaintiffs and by Defendant OKDHS should be and is hereby approved and judgment in accordance therewith is hereby entered in favor of the Plaintiffs and against Defendant OKDHS as provided by law.

Plaintiff's Experts:

Defendant's Experts:

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