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Judge Timothy DeGiusti's Decision Regarding The DHS Settlement
Judge Timothy DeGiusti's Decision Regarding The DHS Settlement
MEMORANDUM DECISION
On January 8, 2010, an evidentiary hearing was held in connection with the plaintiff’s
request to have the net proceeds of the approved settlement herein (“Net Proceeds”) apportioned.
The plaintiff, Raymond Lance Briggs (“Mr. Briggs”), appeared personally and through counsel; the
limited intervenor, Raye Dawn Smith (“Ms. Smith”), also appeared personally and through counsel.
Mr. Briggs contends that the full amount of the Net Proceeds should go to him; Ms. Smith
intervened in this case for the limited purpose of requesting that the court apportion half of the Net
Proceeds to her.
As will be discussed later in greater detail, two Oklahoma statutes initially come to bear on
the Court’s consideration of this matter: Okla. Stat. tit. 12, §1053 and §1055.1 Section 1053
recognizes that recoverable damages include the mental pain and anguish suffered by the decedent,
the pecuniary loss to the survivors, and the grief and loss of companionship suffered by the parents;
and further states that the court shall determine the proper division between survivors where the
id. § 1053(B), (D). Section 1055 similarly delineates categories of damages where the decedent is
a minor child, which include loss of companionship and love of the child, destruction of the parent-
child relationship, and loss of monies expended by parents in support and education of the child, “in
such amount as, under all the circumstances of the case, may be just.” Id. § 1055.
At the hearing the parties presented evidence and argument,2 and they also presented post-
hearing written submissions. Relevant evidence fell generally into three categories: evidence of the
quality of the parties’ relationship with the minor child who was the subject of the underlying
wrongful death claim, Kelsey Smith-Briggs (“Kelsey”); evidence regarding the impact on the parties
of the destruction of the parent-child relationship as a result of Kelsey’s tragic death; and evidence
1
As discussed further infra, another statute arguably implicated by a non-accidental death is the so-
called “slayer statute,” Okla. Stat. tit. 84, § 231, which bars inheritance from an estate where the potential
taker was convicted of the murder or manslaughter of the decedent. This statute does not apply in this case
because Ms. Smith was not convicted of the crimes set forth in the statute. Nevertheless, a similar common
law doctrine has potential application to this case. See State Mut. Life Assur. Co. v. Hampton, 696 P.2d 1027
(Okla. 1985).
2
Some of the evidence presented by each side was discounted, or disregarded altogether, as either
marginally relevant, irrelevant, or qualitatively unworthy of consideration due to concerns of reliability. For
instance, testimony for which the witnesses lacked personal knowledge, unreliable hearsay, improper
character evidence, and speculative conclusions were disregarded. Also disregarded were evidence and
argument regarding various instances when the protections of the Fifth Amendment were invoked. The
evidence primarily relied upon by the Court is discussed in this Order; other proffered evidence not
mentioned herein was either disregarded, or was of insignificant probative force.
2
in connection with Mr. Brigg’s assertion that, because of Ms. Smith’s purported involvement in the
events that led to Kelsey’s death, she should be precluded from sharing in any of the Net Proceeds.
This evidence, and the Court’s findings and conclusions based upon the preponderance of the
A. Mr. Briggs
Mr. Briggs and Ms. Smith were divorced prior to Kelsey’s birth on December 28, 2002. To
clear up questions of paternity, a DNA test was performed. The test results received in April, 2003,
established that Mr. Briggs was Kelsey’s father. Soon thereafter he began exercising regular
visitation with Kelsey. The testimony of Mr. Briggs and members of his family established that he
was an involved and loving father; he enjoyed spending time with Kelsey and she enjoyed spending
time with him. He was a hands-on parent, who readily provided direct care for Kelsey such as
feeding her, changing her diapers, playing with her, and reading to her. Mr. Briggs encouraged a
relationship between Kelsey and her extended family, and they enjoyed together time with
grandparents, aunts, and cousins. When Mr. Briggs was remarried, his new wife fully accepted
In the summer of 2004 Mr. Briggs, a member of the U.S. Army Reserve, was called to active
duty service; he began pre-deployment training in September, 2004, and was eventually deployed
to Iraq in May, 2005. It was his desire that his wife and his parents exercise visitation with Kelsey
3
This marriage, too, ended in divorce; however, the evidence established that for the duration of the
marriage Kelsey’s step-mother helped to promote a positive relationship between Kelsey and Mr. Briggs.
3
while he was away from Oklahoma, and, with court intervention, they were able to do so.
Mr. Briggs did not return permanently to Oklahoma until October 12, 2005.
B. Ms. Smith
For reasons that are not particularly relevant to the issues before the Court, during her
pregnancy Ms. Smith was not forthcoming about the possibility that Mr. Briggs could be Kelsey’s
father, and after Kelsey’s birth she was reluctant to allow Mr. Briggs to spend time with Kelsey.
Nevertheless, after paternity was established, Ms. Smith, for the most part, complied with the
visitation schedule and cooperated with Mr. Briggs and his family regarding Mr. Briggs’ visitation
periods. Still, for the first two years of Kelsey’s life, except for the periods of Mr. Briggs’ visitation,
Kelsey was mostly in the care and custody of Ms. Smith, in and around the community of Meeker,
Oklahoma. Indeed, during that time Ms. Smith was the primary physical custodian of Kelsey.
Ms. Smith’s testimony established that she directly provided for Kelsey’s day-to-day needs
and care; when Ms. Smith returned to school, and, later, full time employment, she arranged for
suitable baby sitting and daycare for Kelsey. Ms. Smith recounted the milestones of Kelsey’s first
two years: favorite foods, first words, learning to walk. Ms. Smith, too, promoted a relationship
between Kelsey and her grandparents and extended family, and Kelsey appears to have enjoyed
spending time with Ms. Smith’s mother, especially. For the first couple of years of Kelsey’s life she
appeared to be heathy and happy in Ms. Smith’s care, and their relationship was mutually loving.
But, as discussed below, in the third year of Kelsey’s life things started to go very wrong.
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2. Evidence of Abuse
In January, 2005, roughly corresponding to the onset of Ms. Smith’s relationship with
Michael Porter, Kelsey began suffering suspicious injuries. There was a supposed fall from her crib,
resulting in a broken collarbone and bruises on her face; at about the same time, during visitation
with Mr. Briggs, he and his wife discovered marks on Kelsey’s buttocks, which looked like marks
from a spanking. They took photos of the injuries – several of which were submitted as evidence
during the hearing – and they took Kelsey to the hospital to be examined. These incidents marked
the beginning of a series of injuries, allegations, complaints to child welfare agencies, and legal
proceedings which would persist until Kelsey’s tragic death on October 11, 2005. For purposes of
the determinations necessary in the instant case, the evidence compiled during an agency
*
The child was in the care of the paternal grandmother from April 18-21 and in the care of
Ms. Smith from April 21-25, 2005.
5
• 8/19/2005 bruise on left cheek (before auto accident) mother
These events culminated on October 11, 2005, when, according to Ms. Smith, she left Kelsey
sleeping soundly and in the care of Michael Porter, only to return to the home to see Kelsey being
taken away in an ambulance. At the hospital, Ms. Smith learned that Kelsey was dead; later, the
cause of death was determined to be blunt force trauma to the abdomen.4 Eventually, Mr. Porter and
Ms. Smith faced criminal charges in connection with Kelsey’s death. Mr. Porter pled guilty to the
crime of enabling child abuse by injury, Okla. Stat. tit. 10, § 7115(B); Ms. Smith was convicted by
a jury of the same offense. Her conviction is on appeal, and, thus, the criminal judgment against her
is not final.5 At the time of Kelsey’s death, and for months preceding it, Mr. Briggs was on active
4
During the hearing Ms. Smith presented the testimony of Dr. Robert Bux, M.D., a forensic
pathologist, on the issue of whether Kelsey experienced conscious pain and suffering from the blunt force
trauma before succumbing to her injuries. If such pain and suffering is established, Okla. Stat. tit. 12,
§ 1053(B) allows for an apportionment of damages to the estate of the minor child, to be distributed according
to the rules of intestate succession. However, Dr. Bux’s testimony was inconclusive on this issue, in that he
could not state with certainty whether death occurred within minutes or hours after the blunt force trauma was
inflicted. He testified that Kelsey would have been “immediately symptomatic” after the blow until the time
she “passed out,” but he could not say when unconsciousness would have occurred and whether or not it
would have been immediate.
5
However, Ms. Smith’s criminal conviction is admissible to establish the facts on which it is based
in a civil proceeding arising out of the same events. See Benham v. Plotner, 795 P.2d 510, 512 (Okla. 1990).
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3. The Impact of Kelsey’s Death and Destruction of the Parent-Child Relationship
A. Mr. Briggs
Testimony established that Kelsey’s death has had a profound and lasting impact on
Mr. Briggs and his quality of life. He was described by family members who testified as being a
“lost” and “broken” man since Kelsey’s death. He has experienced extreme grief and severe
depression, and has sought mental health counseling. He no longer enjoys life events, such as
holidays with his family, and at times has difficulty interacting with his family members. Clearly,
B. Ms. Smith
Ms. Smith testified emotionally about not being allowed in the ambulance when Kelsey was
taken to the hospital, and how she felt upon learning of Kelsey’s death. She stated that she thinks
about Kelsey every day, and talks about her constantly as a way to stay in touch with the memory
of Kelsey. Ms. Smith testified that she prays for “God to take me” so she can be with Kelsey.
Although Ms. Smith has been affected emotionally by Kelsey’s death, the Court did not find her
testimony on these issues to be entirely credible. However, even accepting Ms. Smith’s testimony
regarding the depth of her grief, for reasons set forth below, she cannot be allowed to share in the
Oklahoma’s wrongful death statute, which governs the issues presented, authorizes the Court
to determine the proper division of the Net Proceeds for the loss established by the evidence, that
is, a loss of companionship. See Okla. Stat. tit. 12, § 1053(D); see also Plain v. Murphy Family
Farms, 296 F.3d 975, 982 (10th Cir. 2002); Superior Supply Co. v. Torres, 900 P.2d 1005, 1007-08
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(Okla. Civ. App. 1995).6 As discussed above, the recoverable damages for Kelsey’s death include
the parents’ “loss of companionship and love of the child” and “destruction of [the] parent-child
relationship.” See Okla. Stat. tit. 12, § 1055. In deciding an apportionment of these damages, “[t]he
relationship existing between decedent and [a claimant] within a reasonable time period before death
is entitled to the court’s careful consideration.” See Plain, 296 F.3d at 982. Further, proceedings
for the apportionment and distribution of a wrongful death settlement fund are equitable in nature
and, therefore, governed by equitable principles. See In re Estate of Lovely, 848 P.2d 51, 53 (Okla.
Civ. App. 1993). Evidence of the quality of a parent-child relationship immediately preceding a
child’s death may weigh heavily in assessing the extent of the parent’s grief and loss. See id. at 54.
Oklahoma’s so-called “slayer statute,” Okla. Stat. tit. 84, § 231, bars a beneficiary from
taking by will, intestate succession, or insurance policy as a result of a death for which the
beneficiary is convicted of murder or first degree manslaughter. This statute implements a common
law doctrine and the equitable principle that a person may not benefit from his own wrongful
conduct. See State Mut. Life Assur. Co. v. Hampton, 696 P.2d 1027, 1031 (Okla. 1985). The
common law rule is neither limited nor abrogated by the statute; courts may continue to apply the
common law rule where a beneficiary has played a part in causing the death, even though the
beneficiary has not been convicted of murder or manslaughter.7 Under the doctrine, it is the
6
The distribution of any damages for injury to the decedent, such as mental pain and anguish, would
be property of the estate and within the jurisdiction of the probate court. See Plain, 296 F.3d at 977 n.8.
However, as stated above (see supra note 4), the Court finds insufficient evidence on which to determine any
damages for mental pain and anguish in this case.
7
In Oklahoma, the common law remains in full force and effect unless expressly abrogated by
statute. See Tucker v. ADG, Inc. 102 P.3d 660, 668 (Okla. 2004); Tate v. Browning-Ferris, Inc., 833 P.2d
1218, 1225-26 (Okla. 1992).
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beneficiary’s felonious act causing the decedent’s loss of life, rather than a conviction of the killing,
that warrants a disqualification from recovery. See id. at 832. Further, it is an age-old maxim of
equity that one who seeks equity must come to court with clean hands. See, e.g., Camp v. Camp,
163 P.2d 970, 972 (Okla. 1945); 30A C.J.S. Equity § 109 (2009).
5. Conclusions
The applicable statutes, as noted above, require that the Net Proceeds from this wrongful
death action must be apportioned by the Court to the parents of the minor based upon their grief,
the loss of companionship and love of the child, and destruction of the parent-child relationship.
The evidence reasonably established that Kelsey’s death has had a greater emotional impact on Mr.
Briggs. However, even accepting that Ms. Smith’s grief might otherwise allow for some
apportionment to her, the Court is guided in this matter by equitable principles, and those principles
The evidence at the hearing established an alarming pattern of injuries to Kelsey while she
was in the care and custody of Ms. Smith. Ms. Smith herself acknowledged as much during cross-
examination. It cannot be reasonably argued that these injuries were not the result of repeated abuse.
Moreover, the severe trauma inflicted on October 11, 2005, again while she was in the care and
custody of Ms. Smith, resulted in Kelsey’s death. It may never be known with certainty whether the
fatal injuries were inflicted by Ms. Smith or Mr. Porter – such a determination, however, is not
necessary here. The evidence clearly established that Ms. Smith was aware Kelsey was being
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harmed, and at the very least, she culpably failed to protect Kelsey from further harm. Equity
dictates that one ought not benefit from her own wrong.8
ORDER
For these reasons, the Court awards the entire amount of the Net Proceeds to Mr. Briggs and
orders that Ms. Smith take nothing on her claim to a portion of the Net Proceeds. Judgment shall
be entered accordingly.
8
Clearly, as between the parents, Ms. Smith alone stood in a position to intervene to protect Kelsey
from harm and death, but she failed to do so and thereby contributed to (if she did not inflict) Kelsey’s fatal
injuries. Mr. Briggs, who is blameless in the matter of Kelsey’s death, has been devastated by his feelings
of loss and grief. Ms. Smith’s feelings, while perhaps no less real to her now, were entirely avoidable had
she properly tended to the parent-child relationship during the time period immediately preceding Kelsey’s
death.
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