By David Wolf, Attorney
Published by Child Injury Lawyer Network
In Utah and other States, parents rely on day care centers to provide supervision and oversight of their children while the parents are at work. Many day care centers are safe havens and very supportive and safe environments for others; however, there are that are quite dangerous. Tragically, children die while under the care of day care centers. It is certainly heartbreaking when any child dies but especially so when the death could have been avoided with better supervision, common sense, and care by the child care providers who had a legal duty to provide a safe learning environment for the child.
It was recently reported that a former day care operator located in Roy, Utah was charged with the serious crime of child abuse homicide surrounding the death of an 8-month-old child under the care of the day care center – Tots & Tykes Day Care. Tisha Lynn Morely, age 33, was charged with this crime and processed at the Weber County (Utah) Jail.
On February 19, 2014, the father of the child arrived at the day care center to pick up the child. Upon arrival, the father noticed that the child would not wake up and was cold to touch. The child was transported to Primary Children’s Hospital where the child was diagnosed with a skull fracture. As a result of these injuries, the child died on February 28. A subsequent autopsy by the Utah State Medical Examiner determined that the death of this child was a homicide caused by head injuries. You can read more about this story at Charges Filed Against Utah Day Care Center Provider.
Cases of this nature often times provide a number of proceedings including the following:
Criminal Case. As stated in the news story regarding this incident, the day care center operator was arrested for a crime related to the child’s injuries. A criminal proceeding can result when there is a death or injury at a day care center; however, not every case will be prosecuted by the State Attorney or law enforcement. In the State Statutes, there was specific elements to be proven to establish that a crime took place. One such element involves the “intent” of the potential criminal Defendant. Of course, if a day care employee or operator intentionally wants to harm a child and does in fact harm a child, that is a crime. It can also be a crime if the acts of the day care center provider were so reckless and callous that these acts are deemed criminal under the applicable State Statutes. When there is a criminal proceeding, the parents of the injured child or deceased child will typically be involved in the process as representatives of the victim. The State Attorney will provide updates to the parents from time to time as to the progress of the case, developments, and plea bargain issues. While parents are part of the process, they are not typically the final decision makers as to the disposition or handling of the case. These decisions are left to the State Attorney or the prosecutor of the case. Of course, if the case proceeds to trial, the decision on the case will be left to a jury. It should be noted that Lynn Morley will be entitled to representation by a criminal defense attorney or a local public defender if she cannot afford to retain an attorney. While charges have been filed, Ms. Morley has the right to defend herself. A case of this nature will involve the testimony of the father, medical providers, investigators, the medical examiner, and others. A case should not and will not be decided in any form whatsoever by a mere newspaper or media story.
Administrative Proceeding. The applicable State licensing board may also be involved with an Administrative Proceeding. If the day care center was licensed, the applicable State licensing board may step in issue fines and / or other sanctions against the day care center. The license may be put on probation or suspension. When there are serious violations, the license may be suspended or revoked on a permanent basis. Parents and others can report alleged violations to the State and it is then the responsibility of the applicable State licensing board to field and investigate the allegations. While a parent may vehemently want the State to put a day care center out of business through the revocation of the license, it is ultimately up to the State to make these decisions. Typically, there are administrative rules, regulations, and proceedings to follow as to the licensure and operation of the day care center. Just because a day care center violates rules and regulations – this does not necessarily automatically subject the day care center to the suspension or revocation of the license.
Insurance Claim – Civil Proceeding.
Unlike an administrative proceeding and unlike a criminal proceeding, a parent of a child injured at a day care center does have a degree of control and decision making abilities in how the case is handled. Typically, it is in the best interest of the parents and child victim to retain a Child Injury Lawyer to represent the legal interest and rights of the injured child and family. While a parent has the freedom to select a lawyer to handle the matter, the civil proceeding or insurance claim will still be subject to applicable laws and proof requirements in the civil realm. Furthermore, there are practical aspects to the handling of any case on behalf of a child or any other victim for that matter. In a civil proceeding, the typical relief sought is that a compensation. In most States, there is no cause of action that can be filed in the civil arena to shut a day care center down or to prohibit a day care center from operating any further. As stated herein, these matters are left to the State whether through a criminal or administrative proceeding.
When a child is injured in a day care center, there are often many questions and issues to be addressed on behalf of the family. The book – The ABCs of Child Injury – Legal Rights of the Injured Child – What Every Parent Should Know – has chapters on Day Care Center Injuries, School Injuries, Insurance and Bills, and other topics. You can get this book for free at The ABCs of Child Injury.