INDIANAPOLIS – An Indiana mother filed a tort claim against the Indiana Department of Child Services following the death of her son.

Hayley Kelly, the mother of Nakota Kelly, seeks damages for wrongful death and negligence, according to the tort claim.

Nakota died in July 2020 after going to his father’s house for the weekend. His father, Anthony Dibiah, is charged with murder. The boy’s remains have never been found.

According to the complaint, the 10-year-old boy was on a court-ordered visitation weekend with his father. Police were called to an address on West Lake South Drive for a welfare check on July 19.

Officers didn’t find the boy or his father. They did, however, discover enough evidence to convince them Nakota was dead, including “blood spatter, blood smears and brain matter” in a bathroom.

According to court documents, Dibiah called at least two people to inform them he’d killed his son. He was eventually arrested in Missouri. A jury trial is scheduled for May 23, according to online court records.

A case worker said, days before he was killed, Nakota expressed trepidation about visiting his father, telling his mother, “Oh, I’m dead. Don’t expect me to come home.” When his mother asked him about the comment, Nakota said his father had been angry at him for hanging up during a phone call.

“My dad is going to kill me,” the boy told his mother, according to court documents. Kelly informed DCS about her son’s comments and expressed her fears about the upcoming visit.

Kelly said DCS told her his weekend visit with his father would proceed as scheduled “because it was by Court Order,” according to the tort claim.

“Defendant DCS never mentioned or addressed the matter of Nakota’s fear or safety in the July 16, 2020, telephone call,” Kelly said.

Around 2 p.m. on July 19, Kelly received a text message from Dibiah that said, “Sometimes I hear voices. My son is in Heaven.” She immediately tried to report the text message to DCS, although she had to leave a voicemail instead. She received a call back the next day in which she informed the DCS employee that her son was dead.

Kelly said she made numerous child abuse complaints to DCS over the years prior to Nakota’s death “without receiving any meaningful response or assistance.” Kelly alleges the agency dismissed allegations of Nakota’s abuse at the hands of Dibiah, saying they were unsubstantiated.

In the tort claim, Kelly said she believed DCS failed to protect her son and breached in its duty of care. Had the agency taken action, she believes her son would still be alive, calling his death “both foreseeable and preventable.”

Kelly seeks damages for “loss of services, loss of love and companionship, funeral and burial expenses, costs associated with uninsured debts/expenses of the child, psychological and psychiatric counselling services, estate administration expenses and fees, attorney fees and for all other just and proper relief in the premises,” according to the tort claim.