photo by: Max McCoy/Kansas Reflector

Mickel Cherry, who entered a guilty plea to murdering Zoey Felix, 5, is scheduled to be sentenced next week in Shawnee County District Court. His attorney argues Cherry and Felix fell through the cracks of state foster care and court systems designed to protect them. The image is of a 2023 candlelight vigil in Topeka honoring child victims of homicide.

TOPEKA — An attorney representing Mickel Cherry in the rape and murder of a 5-year-old Topeka girl asserted in a court document Friday that Kansas’ child welfare agency and the Shawnee County District Attorney’s Office missed opportunities to intervene and possibly save her life.

Cherry, a former Texas resident who entered a guilty plea last year to murder and sexual assault charges to avoid the death penalty, confessed to killing Zoey Felix in October 2023 at a tent encampment used by homeless people. Zoey was left in Cherry’s care by the girl’s father while he was at work.

Defense counsel Peter Conley, a state deputy capital defender, said in court documents that Felix’s welfare was investigated seven separate times by the Kansas Department for Children and Families in the year before her death. After a DUI charge against the girl’s mother, Conley said, DCF informed District Attorney Mike Kagay’s office that evidence indicated Felix’s mother engaged in abuse or neglect of the girl.

The district attorney eventually began child-in-need-of-care proceedings, but Felix died before the legal system advanced the case to a point where she could be placed in state custody and potentially placed in the foster care system. Instead of the promise of safety, Felix was strangled by Cherry, who had endured years of abuse from his mother before placed in the Texas foster care system from age 5 to 18.

Conley’s filing on behalf of the 27-year-old Cherry says his client had to bear ultimate responsibility for raping and killing Felix, but the case raised important issues.

“Kansas had multiple opportunities to protect her from the harm she endured,” Conley wrote in the court document. “While it is easy and tempting to place all the blame on Mickel Cherry, we must also confront a harder truth. The systems designed to protect children failed her. Not because they lacked authority, but because we have tolerated that failure. Our systems can save children. We must expect, and demand, that they do.”

He said Felix’s murder was “entirely avoidable” and that “multiple moments of intervention were present that could have saved her.”

A DCF spokesperson didn’t respond to a request for comment about the defense attorney’s court filing and the pending sentencing of Cherry.

Trainwreck of trauma

The document outlining DCF’s involvement with Felix as well as Cherry’s own life experience in foster care was filed by Conley in preparation for sentencing at a Shawnee County District Court hearing scheduled to start Monday. Cherry pleaded guilty to first-degree felony murder and rape of a child in December.

Conley requested Cherry be ordered to serve two concurrent 25-year-to-life sentences in prison. In that were the result, Cherry wouldn’t be eligible for release until after serving a quarter century behind bars.

On behalf of the district attorney’s office, Kagay recommended two life sentences for the murder and rape to be served consecutively. That would create a minimum 50-year term in prison before consideration of parole.

If released from the Kansas Department of Corrections in the future, Cherry would be subject to civil commitment at a state psychiatric hospital under Kansas laws applied to sexually violent predators.

Conley’s supplement to the court record said it was an “open secret that those (former foster) children, abused and neglected, become the majority of defendants and victims in our legal system.” He said the Cherry case was a “trainwreck of childhood trauma and institutional indifference.”

He wrote that it was troubling a homeless and developmentally disabled Texan who spent much of his childhood in a foster care system that was ruled by the courts to be “constitutionally inadequate” and where “rape, abuse, psychotropic medication and instability were the norm” came to occupy a makeshift camp with Felix and her father.

He posed questions about how Felix, known to be chronically truant from preschool, found by police wandering Topeka streets, subject of multiple DCF investigations and on the district attorney’s radar, fell through the cracks of a system that could have removed her from unsafe living conditions.

In September 2022, Conley’s court document says, DCF received the first report concerning Felix residing with her mother, who was allegedly abusing drugs and the victim of domestic violence. DCF closed that case after the mother refused to participate in the state’s voluntary family preservation program. On a scale forecasting the “lasting safety” of a family, DCF gave Felix’s home environment a nine on the 10-point scale with 10 reflecting confidence the problems were no more serious than those of a typical family.

Less than two months later, Topeka police were called to help locate Felix at 2:42 a.m. She was found at a house a block away. Law enforcement officers returned the girl to her mother and reported to DCF the mother could be neglecting Felix.

A Topeka school contacted DCF in November 2022 to report Felix had missed 25 days of school during the fall part of the academic year. The document filed by Conley said it wasn’t clear if the school or DCF referred the truancy to the district attorney’s office.

On Nov. 18, 2022, DCF was informed Felix’s mother was arrested for DUI after a traffic accident in which Felix was sitting unbuckled in the front seat of the vehicle. Felix was placed in police protective custody until released to her father.

‘Case was closed’

Despite four cases raising questions about Felix’s well-being, Conley’s filing said, DCF records didn’t indicate whether the state agency sought to confirm the father’s ability to care for Felix.

In May 2023, DCF received a report that indicated Felix’s father had been evicted from his home and the girl was back in the care of her mother, who had been released from jail on the DUI charge and placed on probation. At this point, in June 2023, DCF issued a finding of “lack of supervision” regarding Felix. That was apparently shared with the district attorney’s office, but child-in-need-of-care proceedings weren’t immediately initiated.

The district attorney subsequently launched that proceeding on Felix’s behalf to determine whether she was abused, neglected or otherwise unsafe. DCF continued to give a score of nine out of 10 on the “lasting safety” scale applied to Felix, the court document said.

DCF was again notified in August 2023 — two months before Felix’s death — that the girl was living with her mother in a house without running water. The report said the girl didn’t have shoes, was wearing the same clothes every day and was “outside around the neighborhood for hours at a time.”

“DCF sent an investigator to the house seven times in September, but no one was ever home. The case was closed,” Corley wrote in the court document.

In fact, he wrote, Felix was now relying on her father for parental care and was closer to falling victim to Cherry at the homeless camp.