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'If they had just listened to Nakota': Mom sues DCS for failing to protect Nakota Kelly

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Posted at 3:28 PM, Apr 06, 2022
and last updated 2022-04-06 18:52:24-04

INDIANAPOLIS — Anthony Dibiah has been charged with killing his son Nakota Kelly nearly two years ago, but the boy's mother believes some of the blame for her son's death falls on the state child welfare system.

"I think if they just listened to Nakota they would have been able to stop it," Hayley Kelly said, speaking from her attorney's office on the north side Wednesday.

On Tuesday, Kelly sued the Indiana Department of Child Services for its failure to protect her 10-year-old son despite repeated claims that he had been abused or neglected by his father.

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Hayley Kelly at the baseball field in Wabash, Ind., where her son Nakota played on a Little League team.

Dibiah, prosecutors say, smothered his son on July 18, 2020, disposed of the body and fled Indianapolis. Police arrested him the next day in Missouri, according to court records.

Hayley Kelly lives in Wabash and shared custody of Nakota with Dibiah, who lived in Indianapolis. A judge ordered that Nakota spend every other weekend with his father.

Days before his last weekend visit with Dibiah, court records say Nakota Kelly told his mother: “Oh, I’m dead. Don’t expect me to come home. My dad is going to kill me.”

Kelly told DCS, but according to her lawsuit, they did nothing to protect her son. A DCS spokesperson declined to comment Wednesday.

This was the last in a series of abuse and neglect complaints against Dibiah. Documents Kelly provided to WRTV show DCS investigated at least four allegations of abuse and neglect by Dibiah against Nakota during weekend visits between 2016 and 2018.

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Hayley Kelly took this photo of her son Nakota at the Wabash County Fair days before the boy was allegedly killed by his father.

Kelly asked the Wabash Circuit Court and DCS caseworkers to protect her son from his father, according to the documents she provided. Those records show she asked a judge to require that Dibiah’s visits with Nakota be supervised.

The abuse and neglect complaints were unsubstantiated. The judge never required supervised visits.

"I think more could have been done," Kelly's attorney Robert B. Turner said. "I guess the thing that gets me is what's a kid supposed to do other than say: 'He's gonna kill me. He's gonna kill me.' And guess what? He killed him."

Prosecutors on July 20, 2020, charged Dibiah with murder in Nakota's death even though police have not found the boy's body. Dibiah's trial is scheduled to begin on May 23.

Kelly's lawsuit, filed Tuesday in Marion Superior Court, names DCS and Dibiah as defendants. She said she hopes the suit forces DCS to admit it made mistakes.

Life without Nakota has been difficult, Kelly said. It's hard to mourn, she said, when there is no grave to visit.

"I just tried to go day by day, just to get through the day," Kelly said. "And some days it's hard to get out of bed and do my everyday life."

Read the WRTV exclusive Nakota's story:
Part 1 |Love and lies: How a single mom from Wabash fell in love with a man with five names;
Part 2 |'Unsubstantiated': DCS investigated at least five abuse complaints against Nakota Kelly's father;
Part 3 |The last visit: Nakota Kelly's short life ends in violence at his father's home

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Anthony Dibiah

Contact WRTV reporter Vic Ryckaert at or on Twitter: @vicryc.