INDIANAPOLIS — An Indiana mother speaks out after filing a lawsuit against the Indiana Department of Child Services following her son’s murder.

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

Court records claim the 10-year-old boy predicted he would be killed by his father if he went to visit him at his apartment building.

The victim’s mother believes the DCS failed to take those claims serious and shares responsibility for the death.

According to the complaint, Nakota 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, 2020.

Despite extensive search efforts in the summer of 2020, the boy’s body was never recovered and a funeral has never been held.  Police did, however, discover enough evidence to convince them Nakota was dead, including “blood spatter, blood smears and brain matter” in a bathroom.

“I want to be able to put my son to rest,” said Hayley Kelly. “Not having a body and not having a place to go, it’s unthinkable.”

Police claim Nakota’s father, Anthony Dibiah, confessed to suffocating his son to death inside his apartment before disposing of the child’s body.

Booking photo of Anthony Dibiah

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.

Prior to the killing, 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.

“What’s a kid supposed to do other than say he’s going to kill me?  And guess what?  He killed him,” said attorney Robert Turner.

Attorney Robert Turner and Nakota’s mother both insist she reported the conversation to a DCS employee.  Hayley 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.

“This should have been prevented by the exercise of a little authority to order supervised visitation,” said Turner.

“I think if they just listened to Nakota, they would have been able to stop it,” said Kelly.

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.

She also wants DCS to change how they investigate cases like her son’s.

“I hope they’ll look further into investigations and listen to the child.  When the child says they’re scared, listen,” said Kelly.

Hayley also claims she reported her son had been abused by his father on multiple occasions prior to the killing.  Dating back to 2017, Nakota claimed he did not feel safe at his dad’s home because he would hit and yell at him.

A spokesperson for the DCS said they have no comment on the case.

The suspect is scheduled to go to trial for murder next month.