WHEELING — The mother of a 16-year-old Marshall County boy killed in a December 2022 dirt bike crash alleges that West Virginia Child Protective Services’ negligence led to the boy’s death.

The boy’s mother, Christine Erickson, has appealed the dismissal of a wrongful death complaint filed against the former West Virginia Department of Health and Human Services, then-Commissioner for the Bureau of Social Services Jeffrey Pack and the CPS worker on the case the day of the crash to the West Virginia Intermediate Court of Appeals.

The appeal was filed Dec. 7, 2023, according to documents. Ronald Zavolta, the Wheeling-based attorney representing the boy’s mother, said he has gone public with the appeal now because of the egregiousness of the case.

“I know how much the CPS folks work their tails off,” Zavolta said. “But I’ve never in my career seen anything like this.”

According to court documents, Erickson said she was contacted by CPS on Dec. 7, 2022, after her 15-year-old daughter had reported allegations of misconduct to John Marshall High School administrators. A CPS worker talked to Erickson that day, according to the appeal, and said that due to the allegations, an investigation referred to as a Temporary Protection Plan needed to be conducted. That plan required the removal of the children from Erickson’s custody for seven days.

According to the appeal, the CPS worker said that she and Marshall County Sheriff’s deputies would meet the two children at their home, have them gather seven days’ worth of clothes and essentials and take them to two separate safe homes. After the children gathered their things, the appeal stated, the CPS worker transported the daughter to her safe home, but allowed the son to ride his dirt bike unsupervised to his safe home.

The boy had neither a driver’s license nor a learner’s permit to operate the dirt bike, according to the appeal.

“Furthermore,” the appeal continued, “it is understood driving a dirt bike on Glen Dale or Moundsville, West Virginia’s public roadways violates applicable West Virginia and/or local law.”

According to the appeal, around an hour later, the boy was killed in a head-on collision with another dirt bike on Viola Road around 5:30 p.m. Dec. 7.

In the appeal, Zavolta wrote that the CPS worker assured Erickson prior to her agreeing to the TPP that CPS would safely transport the children to their safe homes.

“This is not, under any analysis, a discretionary decision,” the appeal read, “rather a non-negotiable ministerial requirement striking at the heart of protecting children.”

Erickson filed a wrongful death complaint on April 21, 2023 in Marshall County Circuit Court. Circuit Judge Jeffrey Cramer dismissed the complaint Aug. 7, 2023, ruling that the CPS worker’s decisions were discretionary and therefore protected by qualified immunity.

Zavolta said he was given no chance to litigate the case, which doesn’t happen often, especially in cases such as this.

“I wasn’t permitted to do any discovery, wasn’t permitted to take any deposition,” he said. “A motion to dismiss granted against the cause of action, not to mention a wrongful death of a 16-year-old … that’s rare.”

Erickson and Zavolta disagreed with that in their appeal, stating that “no thoughtful, reasonable, informed analysis can somehow conclude that the reckless, malicious, intentional acts” of the DHHR and the CPS employee are discretionary.

Erickson and Zavolta are asking that the ICA reverse the Circuit Court’s decision to dismiss and send the case back to Marshall County Circuit court to be decided on its merits.

The West Virginia Department of Human Services, which now oversees the state CPS, offered a short statement on the case.

“There is active litigation concerning this matter,” DoHS Communications Director Whitney Wetzel said in an email Friday. “This case was previously dismissed in Marshall County Circuit Court and the West Virginia Department of Human Services believes it will ultimately prevail on appeal.”

Zavolta said he and Erickson want CPS and the offices that once made up the DHHR to be held accountable for what they see as a negligent act.

“I’ve polled just regular folks … and no one can fathom that that CPS worker could let him leave on his dirt bike … without any supervision, when they told the mother that potentially the kids would be placed at risk if she’s present. And I’m in favor of all that, and that’s their mission, to protect children. I think that they fell, respectfully, woefully short.”