Jury finds state negligent, awards $11.2 million to girl in 2009 child abuse case
After a six day trial and about four hours of deliberation, a jury found the Montana Department of Public Health and Human Services negligent in their handling of a case involving Seraphina Wilson and that its negligence caused the girl’s injuries.
Just after 8 p.m. July 14, the jury rendered its verdict and awarded $11,187,500 in damages to Seraphina, who turns 17 in August.
“This moment, this trial has been a very long time coming for Sera,” Ben Graybill, one of her attorneys said in his opening argument on July 7.
Ben Graybill said an investigation into bruising on Sera’s abdomen in late December of 2008 fell short and DPHHS’ Child and Family Services division failed to analyze the threat to the infant, leading to mid-February 2009 when the girlfriend of the child’s father picked up the crying infant and slammed her head against the side of the crib multiple times before throwing her back in the crib, causing blindness and other permanent disabilities.
“It was all preventable and that’s why we’re here,” Ben Graybill said.
Seraphina was six-months-old at the time.
She spent about three weeks in the hospital and DPHHS sought emergency temporary custody for the infant after that assault.
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Now, she’s blind, walking with a cane, gets her nutrition through a feeding tube, cannot bath herself or brush her own teeth.
One of her former teachers at the Montana School for the Deaf and Blind testified that when Seraphina left the school last summer to move to a similar facility in Spokane, she was reading at a second grade level.
Alicia Jo Hocter was sentenced in July 2010 to 30 years in prison after being found guilty of aggravated assault and criminal endangerment and is currently serving her sentence in the Montana Women’s Prison.
Seraphina, through her guardian, local attorney Jeff Ferguson, sued DPHHS in 2013 for its failure to remove her from her father’s home prior to the injuries, as several complaints had been made regarding the child’s safety and DPHHS investigated.
The case was transferred to Judge Elizabeth Best in 2018, who eventually determined as a matter of law that the DPHHS’ child abuse investigation was negligent and caused the child’s injuries.
After a two-day trial in November 2021, a Cascade County jury awarded the child $16,652,538 for “the loss of her future earning capacity, past personal care assistance, future life care costs, impairment of the capacity to pursue her established course of life, and mental and emotional suffering,” according to court documents.
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In 2024, the Montana Supreme Court has vacated a jury’s 2021 verdict and remanded the case back to district court for a new trial finding that the question of negligence and causation were best left to a jury.
This month, lawyers for Seraphina tried the case again, continuing their argument that the state was negligent and its negligence caused her injuries.
The lawyers were instructed not to mention the previous trial and a jury was selected of people who didn’t appear to have any familiarity with the criminal case or first civil trial.
Lawyers for DPHHS argued that Seraphina’s lawyers had failed to prove their case and that DPHHS, through its Child and Family Services Division, CFSD, had thoroughly investigated earlier complaints regarding the infant’s safety and that the agency couldn’t have predicted what Hocter would do to the child in February 2009.
What happened to Seraphina is “heartbreaking, it’s awful,” Sarah Mazanec, an attorney for the state, said in her opening argument in the late afternoon of July 7.
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It “was something that no one could see coming,” she said, and that the case worker assigned to investigate the earlier reports of abuse and neglect took it seriously, talking to people involved, visiting their homes and consulting community members.
All of the information gathered, Mazanec said, pointed to Seraphina being safe in the care of her birth father, Jacob Arnott, and Hocter, his live-in girlfriend.
“No one saw this coming,” Mazanec said. “No one could predict that Ms. Hocter” could brutally beat Seraphina.
Arnott and Seraphina’s birth mother, Kendra Bernardi, were no longer together in the fall of 2008 and were engaged in a custody dispute of the toddler.
Hocter was pregnant, giving birth to a child in January 2009, that was not Arnott’s child, according to various tesitomy throughout the trial.
Reports were made regarding Seraphina in October, November and December of 2008 and January of 2009, leading to the most significant assault in February 2009 that left the child blind and with lifelong disabilities.
In October 2008, a report was made against Bernardi and when investigators went to talk to her, they couldn’t locate her so Seraphina was removed from her care and placed at the receiving home for the night but was returned to Bernardi’s care the following day.
Cari Davids, a CFSD social worker, was assigned to cases involving Seraphina that fall, and in the October incident, determined that the child was safe in Bernardi’s care.
In a second October report, Bernardi accused Arnott of running out of formula and not returning Seraphina to her.
Davids was also assigned to that case and by then Seraphina was in Arnott’s custody.
Ferguson, the court appointed representative for Seraphina, said he was assigned to represent Bernardi in her 2008 custody challenge.
Arnott had sought and received a default judgment after filing a parenting plan that had been served on Bernardi but she hadn’t responded. Ferguson said he understood Arnott and Bernardi to be negotiating a different parenting plan at the time and he’d asked the court to set aside the default judgment, which the judge did on Feb. 11, 2009.
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A significant portion of the trial focused on a Dec. 28, 2008 report when a local doctor called into the state’s child abuse and neglect hotline, which is CFSD’s central intake system, after Arnott and Hocter took Seraphina to the ER after noticing small bruises on her abdomen, then later blood in her stool.
The doctor reported that the six or seven bruises had broken her abdominal wall, were likely caused by pinching and were not accidental.
The doctor reported the bruises were 24-48 hours old and Arnott and Hocter told the doctor that Bernardi had a supervised visit with the child the previous day and believed she caused the injuries.
Davids, the CFSD case worker assigned to the investigation, couldn’t determine who had caused the abuse and found Sera to be safe in the care of Arnott and Hocter.
The visit was at the Arnott/Hocter apartment and Hocter reported that she’d heard Sera cry while she was with Bernardi.
During the supervised visit, Nicole Tangen, a mutual friend selected by Arnott and Bernardi, had left the room several times to smoke outside and use the restroom, according to documents and testimony provided during the trial.
Multiple witnesses said Tangen should have remained in the room as she was supposed to be supervising the visit but she did not report hearing any crying or noticing anything out of the ordinary, nor had she raised any concerns about Seraphina’s safety with Arnott and Hocter.
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Davids, the CFSD case worked assigned to Seraphina’s case, testified that she did a thorough investigation and that Arnott and Hocter were cooperative and took the appropriate steps to protect the child, such as bringing her to the ER after noticing the bruising.
Ben and Raph Graybill, attorneys for Seraphina, said that it took Arnott and Hocter until noon the day after the supervised visit to notice the bruises and that the child wasn’t seen by a doctor for another nine hours.
They said that in her criminal interviews, Hocter had admitted to causing the December bruises.
The case was referred to the Great Falls Police Department, which at the time didn’t have enough information to charge anyone with the abuse.
The Graybills highlighted the changing stories from Arnott and Hocter about the December bruises and supervised visit with Bernardi asking why the state didn’t find that concerning, while the state said the story was generally consistent in that they believed Bernardi had caused the bruising.
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In January, there were two reports related to Seraphina, one that the smell of marijuana was coming from Arnott and Hocter’s apartment and a baby was heard crying, and a second that Sera was left alone in her carseat at Benefis while Hocter was giving birth. Nurses and medical staff made that report and CFSD witnesses said it was responsible that they brought Sera to the hospital since they didn’t have childcare otherwise.
Gary Johnson, who was Davids’ supervisor at the time of the abuse investigations and retired in 2011, said that he had been to the Arnott/Hocter home with Davids at least once.
The Graybills said there was no documentation of his visit.
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The state questioned a nurse who did home visits at the Arnott/Hocter apartment on the day in February 2009 that Hocter ultimately swung Seraphina’s head into the crib, and the nurse said that Hocter was acting normally and that the apartment was messy but not disastrous.
In an earlier home visit, Davids had noted their apartment was at minimal standards and told Arnott to cleanup.
The Graybill’s showed the jury photos of the apartment taken as part of the police report following the February assault that showed dirty diapers on the floor, urine soaked bedding, moldy dishes and Sera’s mattress didn’t have bedding.
Attorney’s for Seraphina called Michael Corey as an expert witness on child protection services who testified that CFSD’s investigation wasn’t thorough or adequate.
He testified that he saw no documentation related to the trial that demonstrated CFSD assessed Arnott and Hocter’s protective capabilities.
Corey said he supported the plaintiff’s argument that if CFSD couldn’t determine who caused the bruises to Seraphina in December 2008 that it should have removed her from Arnott and Bernardi’s care until they could determine she was safe.
He said that once a child has been abused, specifically younger children, it increases the likelihood that the abuse will continue and that the state should have been able to anticipate the threat to Seraphina.
Later, April Jones testified as a representative for DPHHS. She worked in CFSD in 2008/2009 when Davids was investigation the reports regarding Seraphina. She’s now a supervisor in the department.
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Jones said that she had been familiar with Bernardi and Hocter at the time because they’d both been in the system as abused children and Bernardi had been a foster child.
The department was able to remove children from homes on 48-hour emergency holds without court intervention, but at that point, court action would be required.
Max Davis, one of the attorneys for the state, asked if Jones agreed with the statement that if they didn’t know who caused the abuse, CFSD needed to removed the child.
Jones said, “no, I do not. I wish it was that simple.”
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Raph Jones, on cross examination on Jones, said there was no documentation of the department assessing Hocter.
In reviewing Davids’ affidavit for emergency removal of Sera in February 2009 following Hocter’s abuse, Raph Graybill said that Jones had met with Arnott that day and learned he hadn’t been home at the time of the incident, he’d been out selling plasma.
Arnott and Hocter had initially said Sera had fallen off the couch, had a head injury and might be dead.
The state called Judy Krysik, an associate professor and associate director for academic affairs in the School of Social Work at Arizona State University as its expert witness.
Max Davis, an attorney for the state, asked if there was concern about Arnott and Hocter having different versions of what had happened regarding the December bruising.
Kryisk said no, at the time of that incident, Hocter was due to give birth in three weeks and it’s not unusual for pregnant women to have short term memory issues and there was a lot going on with the child abuse investigation.
She said the didn’t believe CFSD should have removed Sera from Arnott and Hocter’s care at that time, based on the information she’d reviewed for the trial.
She said the safety assessment form filed as part of Davids’ investigation of the December bruising didn’t have any validity in predicting future abuse.
In his closing argument, Max Davis for the state said that the attorneys for Seraphina had failed to prove their case and while a little girl suffered injuries, it was “not the fault of the state.”
He said there was “not a thing” that could have alerted CFSD social workers to alerted them to what Hocter would do in February 2009.
Davis said that it was “utter speculation” that the February abuse wouldn’t have happened if CFSD had removed Seraphina from the Arnott/Hocter household after the December bruising.
In his closing, on behalf of Seraphina, Raph Graybill said that the state made mistakes and “fumbled” the investigation of the complaints made regarding the infant.
CFSD has a duty, he said, to keep children safe and in the case of Seraphina, “they violated that primary rule by sending her back to her abuser, not knowing who it was.”
He said that because of the state’s actions, the person who caused the bruises would hurt Seraphina again.
“This is a time bomb. This was not a close call,” Raph Graybill said. The “idea that they just didn’t see it coming…just isn’t credible, of course it was going to happen again, the injury tells you that.”
To the jury, he said that they had a difficult task to decide if the state was negligent, if that negligence caused Seraphina’s injuries and “you have to confront what she has experienced and put a value to that” for “her changed course of life. The difference between all the little things that she would have had had these injuries not taken from her.”
“This was all preventable,” Raph Graybill said. “This trial is Sera’s chance for accountability.”
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