A decision last month by the state’s Court of Appeals to overturn a series of 16-year-old judicial orders may finally allow a father to pursue liability claims against two child welfare workers over the death of his son.

Chandler Grafner died in 2007 at age 7 after suffering from starvation and dehydration at the hands of his guardians, Jon Phillips and Sarah Berry. Chandler’s biological father, Joshua Norris, filed a federal lawsuit in 2009 accusing multiple government defendants of failing to ensure the boy’s safety despite multiple reports of abuse.

But Norris’ lawsuit has been dormant for seven years while Colorado’s state courts sorted out whether a Jefferson County magistrate issued valid orders at the outset of the child welfare case that transferred custody to Phillips. On June 30, the Court of Appeals delivered its answer: no.

A three-judge appellate panel determined Jeffco had not shown any “due diligence” it performed to personally notify Norris of Chandler’s welfare proceedings. To the contrary, a caseworker with the Jefferson County Division of Children, Youth, Families and Adult Protective Services did not recall doing “any work at all to locate” Norris.

“The Division argues, and the juvenile court found below, that diligent efforts would have been to no avail because the Division did not know father’s full name,” wrote Judge Elizabeth L. Harris in the panel’s opinion. “The problem with that argument is that there is no evidence in the record that the Division asked anyone for father’s name.”

The case began when police arrested Chandler’s mother, Christina Grafner, in March 2006 for child abuse. The county temporarily sought to place Chandler with Phillips, with whom Grafner had lived, and Phillips’ girlfriend, Berry. Three days into the case, the county asked permission to serve notice of the proceedings on Norris — identified as “John Doe” at the time — through newspaper publication.

Colorado law permits published notices in lieu of personal service in instances where a person outside Colorado has an unknown residence or when a Colorado resident cannot be found “after due diligence.” Jeffco, in its motion to the court, repeated the law’s phrasing verbatim, but gave no explanation of its efforts to locate Norris.

A magistrate granted the request and a notice ran on April 6, 2006 in a local newspaper, covering the area around Conifer. Norris did not appear at any subsequent hearings. In November of that year, the magistrate determined the portion of Colorado law relating to the abandonment of children applied to Norris in the case. 

The magistrate granted custody to Phillips in January 2007, relieving the county of its supervision over Chandler. Less than four months later, Chandler was dead.

Norris and Grafner filed suit against Jefferson County, Denver — where Chandler attended school — and two Denver supervisors in Chandler’s abuse investigation, Mary Peagler and Margaret Booker. The plaintiffs argued the government defendants had deprived Chandler of his constitutional right to be free from an unreasonable risk of harm.

The defendants asserted that after Phillips gained custody of Chandler, the government no longer had responsibility over the child.

“If Chandler was not in foster care at or about the time of his death, then he was not in the custody of the state. If Chandler was not in the custody of the state, then there was no special relationship between Chandler and the state,” wrote the Denver City Attorney’s Office. “If there was no special relationship between Chandler and the state, then Defendants cannot be held liable for Chandler‘s tragic death.”

Peagler and Booker, while accusing Norris of attempting to “profit from the death of a child he never knew,” pointed out that the Jefferson County magistrate’s orders proved Phillips alone had legal custody of Chandler.

In June 2014, Norris sought to have the magistrate’s orders overturned. U.S. District Court Judge William J. Martínez had dismissed the governments themselves from the lawsuit, and agreed to close the remaining proceedings against Peagler and Booker until the status of the orders could be sorted out.

The litigation would be “subject to reopening upon motion of the parties when the Colorado State Court system has fully and finally resolved the status of the custody orders,” Martínez wrote in January 2015.

A Jefferson County judge dismissed Norris’ effort to vacate the custody orders, finding the issue was moot after Chandler’s death. The Court of Appeals subsequently reversed that decision, noting the issue was pivotal to Norris’ federal lawsuit.

District Court Judge Ann Gail Meinster proceeded with a hearing on Norris’ request, but ultimately declined to vacate the orders. Norris had not established the newspaper publication constituted improper service on him, she explained.

Upon review for the second time, the Court of Appeals panel focused on the law’s requirement that counties make diligent efforts to identify a parent before resorting to newspaper publication. The appellate judges considered several pieces of evidence that surfaced in the district court hearing.

The intake caseworker for Jeffco did not remember “doing any work at all to locate” Norris. The caseworker did not know what the county had meant when it represented to the magistrate in 2006 that Norris could not be found after exercising due diligence. The assistant county attorney who signed the 2006 motion also did not know what Jeffco had done to find Norris.

“The Division’s verified motion for service by publication indisputably failed to satisfy the statutory requirements,” Harris concluded in the opinion. She flatly rejected the county’s claim that any efforts to find Norris would have been futile because it did not know his name at the time.

“The initial caseworker recalled taking the children to maternal grandmother’s house after mother’s arrest,” Harris explained. “But there is no evidence that the caseworker asked maternal grandmother if she knew father’s name — not at the time she dropped off the children or at any time before the Division filed its verified motion for service by publication.”

The panel ordered the custody orders in Chandler’s case from 2006 and 2007 be vacated. Norris’ lawyers did not immediately respond to a request for comment and there have been no further filings in the federal civil case.

Phillips is serving a life sentence for Chandler’s murder and Berry received a sentence of 48 years in prison.

The case is In the Matter of J.N.