Smith Files Wrongful Death Suit Against Ex-Wife, Partner

This photo, taken in July 2013, shows freshly disturbed dirt to the right of a pepper tree in the back yard of the Menifee home where Terry Smith Jr. lived. This is the site where the 11-year-old's body was found buried three days after his reported disappearance.

Terry Smith Sr., father of the 11-year-old boy who was found murdered in his Menifee back yard a year ago, has filed a wrongful death lawsuit against his ex-wife and her live-in partner.

The suit, filed May 27 in Riverside Superior Court, accuses defendants Shawna Smith and Dennise Bugna of gross negligence in leaving Terry Smith Jr. home alone with his half brother, Skylor Atilano, who was 16 at the time. The suit alleges that Atilano "had expressed fear that he would harm Terry Smith Jr. (and) suffered from mental illnesses including multiple personality disorder, had an extensive history of psychiatric hospitalization for violent outbursts and suicidal ideation stretching back 10 years, was on probation for an October 2012 felony assault, and had a history of alcohol and controlled substance abuse."

The body of Terry Smith Jr. (left) was found buried in a shallow grave in the family's back yard on Helen Lane on July 10, 2013. Atilano was arrested and charged with the murder. He remains in the Southwest Detention Center in French Valley, awaiting an Aug. 7 court hearing.

The wrongful death suit alleges that "the murder of Terry Smith Jr. at the hands of Skylor Atilano was reasonably foreseeable and could have been prevented by the defendants had they declined to leave Terry Smith Jr. home alone with Skylor Atilano. According to the lawsuit, Smith and Bugna left Terry Smith Jr. home alone with Atilano the night of July 6, 2013 while they went out to play pool.

In an interview with Menifee 24/7 on July 8, 2013, Atilano said he left his house the night of July 6 to visit a friend. He said Terry began following him and he told him to go home. He said when he returned home later, he went to bed and assumed Terry was in bed, too.

Shawna Smith told Menifee 24/7 that when she returned home later that night, she assumed both boys were asleep in bed. She said she didn't notice Terry was missing until she got up the next morning.

"When I left at 6:15 Saturday, both boys were home," she said. "There was nothing abnormal. Skylor was supposed to be watching him. I didn't know Terry wasn't there until the next morning. I thought he was in bed."

Robert Carichoff, the attorney representing Terry Smith Sr., said the lawsuit names both Shawna Smith and Bugna as defendants because both were responsible for the boy's well-being. He said the suit seeks damages through the homeowner's insurance policy of Bugna, with whom the Smith family was living on Helen Lane.

The suit alleges that the Smiths resided at a home owned by Bugna and that Bugna's invitation to Terry Smith Jr. to live in her home "created a special relationship, requiring her to protect Terry Smith Jr. from third party misconduct."

In a phone interview from his home in West Virginia this week, Terry Smith Sr. (right) said Shawna Smith's story "never added up from Day One." He said he believes the boy's body was hidden in the house when police first searched the yard, then was buried in the yard later.

"The police didn't search the house because the family said they were grieving," Terry Smith Sr. said. "They only searched the yard. His body didn't show up until the FBI got involved. All of a sudden, the body shows up."

Reached by phone Wednesday, Shawna Smith said she has not been served with papers in this case. She did, however, say Carichoff called her several times asking about homeowner's insurance. She said Bugna has received correspondence from Carichoff and has retained an attorney, but she couldn't confirm whether Bugna had been served.

Smith declined to provide a phone number for Bugna. A number listed for Bugna is disconnected.

"He (Terry Smith Sr.) talked about a lawsuit, but I've never been served," Shawna Smith said. "I know they've been trying to go after Dennise for her insurance and the insurance company has denied them twice. I'm not on the deed and I'm not on her homeowner's insurance."

Carichoff said the defendants were given until July 25 to file a formal response, but an extension until Aug. 1 was requested.

According to the lawsuit, Terry Smith Sr. seeks compensation related to economic damages he suffered which may include the value of lost financial and other support from his son; the value of gifts or benefits the boy would have provided; the value of funeral and burial expenses; and the reasonable value of household services that the boy would have provided.

"I'm not looking for money," Terry Smith Sr. said. "Any money I get is going to a private investigator, because the police are dropping the ball on this."

A case management conference hearing is scheduled for Nov. 24 in Riverside Superior Court.

"It's a terrible, unfortunate case and nobody wins," Carichoff said.

(From left): Dennise Bugna, Shawna Smith's daughter Mary and Shawna Smith spoke at a memorial service on the one-year anniversary of Terry Smith Jr's death.