Lawsuit filed in toddler death

KAILUA-KONA — The parents of a 3-year-old who died in 2017 while in foster care are suing the state, Catholic Charities, the caregivers and others for the wrongful death of their son.

The “horrific injuries” that caused Fabian Garett-Garcia’s “tragic, untimely, and wrongful death” on July 25, 2017, were the result of negligence by the state Department of Human Services and its contract provider Catholic Charities, state-licensed caregivers Chasity Alcosiba-McKenzie and Clifton McKenzie and others yet to be named, the lawsuit filed Thursday in 3rd Circuit Court alleges.

Fabian’s parents, Sherri-Ann Garett and Juben Garcia, are seeking justice for their son and his ohana “by holding those responsible for his death legally accountable,” the family’s attorney said Friday. They are also looking to raise awareness of the longstanding and systemic problems with the manner in which the state appoints and oversees foster parents.

“And, to create change that will result in the protection of children in the foster care system here on Hawaii Island,” Attorney Jeffrey Foster continued.

That’s despite the parents and siblings “living every day in a family’s worst nightmare.”

“Their lives are filled with a profound sense of grief and sadness that only those who have suffered such a loss can understand. While the family has received tremendous emotional support from family, friends, and their church community, they will never be the same,” Foster said.

The family, the attorney said, doesn’t want Fabian’s “death to be in vain.”

“They do not want any other family to have to endure the loss of a child or a child being victimized by the ‘caregivers’ who are assigned by the state to keep children safe and protected,” Foster said. “The parents hope and pray that Fabian’s death will result in wholesale changes to the system, and ultimately, the safety and protection of those innocent children who are forced to rely on the State to keep them safe.”

The civil suit demands a jury trial and is seeking unspecified monetary damages.

“We will be leaving the issue of damages to the jury,” Foster said Friday.

As the civil litigation gets rolling, prosecutors haven’t yet filed criminal charges in Fabian’s death — despite police having arrested back in August 2018 Fabian’s caregiver, Chastity Alcosiba-McKenzie, on suspicion of attempted second-degree murder.

The arrest followed police earlier that month receiving findings from a forensic pathologist determining Fabian died from non-accidental blunt force trauma to the head.

The Honokaa woman was subsequently released, police said, after prosecutors declined to press charges at the time.

Reached Friday, Hawaii County Prosecutor Mitch Roth acknowledged his office still has the case. He said it remained under investigation.

Catholic Charities said Friday afternoon it had yet to receive the complaint and was unable to comment.

The state Department of Human Services also said it hadn’t received the complaint as of Friday afternoon.

“In July 2017, a child passed away while he was in foster care. This kind of news is heart-breaking for our staff who work day in and day out to support families and protect kids. We haven’t yet received the lawsuit so can’t provide specific information about it. For now, we do want the community to know this resource caregiver is no longer licensed to care for kids in foster care,” Keopu Reelitz, DHS spokeswoman, said.

Fabian died at 7:54 p.m. July 25, 2017, at North Hawaii Community Hospital, just 37 minutes after emergency responders got the initial 911 call reporting an emergency involving the toddler at Hoohoa Street home in Waimea.

Hawaii Fire Department personnel found “Fabian lifeless and lying face down beside a pool of his own vomit on a bed” in the McKenzie residence, the lawsuit that references an incident report states. Responders also observed, “various stages of bruising” throughout Fabian’s head, neck and body and “copious amounts of brown-color food-type vomitus in his throat.”

Alcosiba-McKenzie and/or McKenzie — whom the state licensed, appointed and compensated to provide temporary custodial care for the children — told responders the bruising was caused by a fall from a 3-foot bench two weeks prior, according to the lawsuit.

At the Waimea hospital, ER personnel “immediately suspected Fabian was a victim of child abuse,” the lawsuit alleges.

The lawsuit claims a chart note contained in “capital letters that domestic abuse is ‘SUSPECTED.’” It also states physicians noted bruising on Fabian’s forehead, right lateral orbital bone, left eyelid, left cheek to scalp line, right cheek, left chin, right forearm, left scapular region left flank and under the right eye, as well as subconjuntival hemorrhage in both eyes.

Neither Fabian’s mother, Garett, nor his father, Garcia, were called to the hospital, the lawsuit contends.

But, the lawsuit said, state Child Welfare Services social workers were present shortly after Fabian arrived via ambulance. The workers were seen and overheard speaking with Alcosiba-McKenzie while at the hospital.

That’s when Alcosiba-McKenzie’s story changed from what she’d told first responders at the home, the lawsuit alleges.

“In this second version of the story, Defendant Alcosiba-McKenzie claimed Fabian’s alleged fall with the virtual reality goggles occurred on the date of Fabian’s death – July 25, 2017, not July 12, 2017.”

The court filing also alleges the suspected abuse dated further back — and that the state and others were made aware.

“Fabian’s death followed months of visible injuries on Fabian and his younger siblings and numerous notifications of suspected child abuse by Fabian’s parents to defendant State of Hawaii’s social workers,” the lawsuit reads.

The two younger siblings were reunited with their parents in September 2017.

In addition, the lawsuit alleges that an employee of Catholic Charities sent an email to DHS advising the state agency of a police incident at the McKenzie residence that resulted in inaction.

The lawsuit also states it’s unknown if the employee reported to police or the state concerns about bruising on Fabian that his parents reported to the employee the day before the toddler died.

It further claims the state never should have licensed either Alcosiba-McKenzie or McKenzie in the first place, noting each “maintained a documented history of legal, psychological and personal problems that should have disqualified” each from being licensed as resource caregivers and should have never assigned Fabian and his siblings in their care and custody.

“Defendant Alcosiba-McKenzie maintained a documented history of problems with other children assigned to her care and custody (by defendant State of Hawaii) prior to being assigned Fabian and his siblings,” the lawsuit alleges.

Despite such knowledge, no investigation into the alleged abuse was undertaken by the state, the lawsuit claims, and neither Fabian nor his siblings were removed from the temporary custody of Alcosiba-McKenzie or McKenzie until after Fabian’s death.

“Had defendant State of Hawaii not failed to properly supervise, investigate and/or remove Fabian and his siblings from the McKenzie residence, this horrible tragedy would have been averted and Fabian would be alive today,” the lawsuit alleges.

West Hawaii Today was unable to reach either Alcosiba-McKenzie or McKenzie. Court records also listed no attorney for either party.

The state confirmed to the newspaper in August 2018 that Alcosiba-McKenzie had not cared for foster youth since July 2017.

The Department of Human Services was awarded foster custody of Fabian and his two siblings in mid-2016, according to a Supreme Court ruling that overturned an August 2017 gag order on the family filed in connection with the case.

That followed the family court determining the children’s parents weren’t complying with a court-ordered service plan issued six months prior based on a petition asserting the parents had substance abuse issues and “hazardous and dangerous” physical living conditions on the parents’ property, according to the ruling.

To report a child being abused or neglected call the Department of Human Services 24-hour child abuse and neglect hotline at 832-5300.