Mother Of Infant Angry Over Investigation Into Son's Death

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TOPEKA, Kan. (WIBW) -- Almost three months after losing her baby boy, a Scranton mother is angry about incidents surrounding her son's death after a stay at an unlicensed Topeka day care.

Misty Durham's baby died February 27, after being left at Tara Johnson's day care home in southwest Shawnee County, a day care, with a history of what appear to be serious problems.

Two and a half months after the death of her son, Caleb Stewart, Misty Durham's family is still in shock.

"We have minutes where everyone breaks down," Misty said.

The hard part is not just missing her five-month-old, it's trying to understand why Caleb died after being left at the day care operated by Tara Johnson from her home on Southwest Wheatfield, whose history does not appear to be squeaky clean.

"She's had a history of reports of no supervision since she's gotten her license, and he wasn't supervised that day."

Johnson had previously held a license but when she moved her residence, she did not fill out the application for a new license. She was evicted from her home on Southwest 72nd Terrace, and notified the Kansas Department of Health and Environment. The KDHE worker told Tara to submit a new application in order to be licensed at her new residence on Wheatfield.

Misty found Johnson through a state program, Childcare Aware.

A week before Caleb died, Shawnee County Health Agency social workers planned to visit Johnson's new residence for an inspection regarding a complaint filed against her. When Caleb died on February 27th, the social workers realized that home still was not licensed. Records show Johnson told social workers she had already sent in her paperwork; those social workers checked and saw that the department had not received those documents.

13 News filed a request for investigation records compiled by the Kansas Department of Health and Environment and the Kansas Department For Children and Families.

DCF works alongside KDHE in inspecting daycare facilities. DCF looks into child abuse and neglect only, while KDHE regulates licenses. Everything is based off of rules, regulations and statutes.

"You have to take the judgment out of the job," Director of Child Care Licensing at KDHE Rachel Berroth said.

The most disturbing detail for Misty was learning that her son was unsupervised before being found unresponsive, lying on his back in what inspectors described as a dog bed laid on the floor.

Misty said the dog bed had cushions all around it, and that all Caleb would have to do is roll over and suffocate on it. She said it's unsafe for a child.

"It's meant for a dog."

Johnson told inspectors it was a bedding piece.

The day Caleb died, Johnson was not at the home. She was with her boyfriend registering his kids for school, and left Caleb in someone else's care. When that person found Caleb unresponsive, the first phone call made was to Tara, and not to 911. Caleb later died at Stormont Vail.

DCF and KDHE officials say their agencies do not go out and investigate unless there is a correlation that kids' safety is a concern.

An inspector with the Shawnee County Health Agency conducts an inspection at a facility and then reports the findings back to KDHE, the agency that has final say in whether action or enforcement needs to be taken. DCF conducts joint-investigations. If there is good evidence that a child has been harmed, abused or neglected they'll shut the facility down. Evidence has to be stated on-the-record. In Johnson's case, no evidence was stated.

Much of the KDHE documentation has been blacked-out to protect the privacy of others in the investigation.

All but one complaint filed against Johnson were found unsubstantiated by the state.

Misty doesn't understand why.

"Those departments all had a role to play in this and a responsibility before Caleb even died," she said. "I believe that they dropped the ball. I believe with all the reports that they should've done something a long time ago."

Gina Meier-Hummel, the director for protection and prevention services at DCF, said that a substantiation is serious. "[It] means that this individual is a risk to others and therefore shouldn't be licensed to provide daycare or care for others."

Berroth said KDHE can only cite a provider on-the-record if collaterals, or the other people within the facility, can confirm they've seen abuse or neglect, or if the provider admits to it.

Berroth also said scope and severity is important, that the agency looks at the "circumstances surrounding lack of supervision."

The first complaint report with allegations came in to DCF on October 5, 2011. Five more followed - the latest filed February 26th, 2013, the day before Caleb died.

The list of allegations, according to the reports, are:

- 2 or 3-year-old child was pushing a toddler in a stroller in the street unsupervised
- Unknown child was in the street, wearing only a diaper, playing in the sand
- Child's finger got stuck in the spring of a recliner chair, medical attention was needed
- Provider's husband watches the kids a lot
- Provider hit child in the arm for an unknown reason
- Adults are not seen in the home when parents pick up the children from daycare
- Children playing outside unsupervised
- Children throwing sand, climbing the fence, standing on riding toys and pushing each other off toys, and the provider doing nothing about it
- The provider's daughter is supervising and providing discipline to the children
- Children dirty
- Child had severe diaper rash with open sores and diaper was not changed all day
- Home is unsanitary; kitchen floor and kitchen are disgusting
- Children were in and out of the home in the inclement weather in only short sleeves and pants and not coats

Meier-Hummel said the agency does not investigate things like dirty homes, that all complaints must meet a criteria for investigation.

Pertaining to the allegation about the smell of marijuana in the house, Meier-Hummel said drugs is a tricky issue. "We are not the police. If it doesn't have an impact on the kids, we might not investigate someone using drugs, per say."

Violations included: children's health records and immunization records not on file as required, in-service training not completed, electrical outlets uncovered, and facility over-capacity.

Misty Kruger, the public information officer for the Shawnee County Health Agency, said inspectors "go in and see what they find when they are there. We are only capturing a moment in time."

Meier-Hummel agrees with that. "The work of the investigators is really hard because part of it is what's right there in front of them. They don't always have the hindsight."

Johnson was cited for lack of supervision on October 12, 2012 and continued running her daycare home.

February 26, 2013 was also the day one parent pulled her kids out of Johnson's daycare home. She told a Shawnee County Health Agency social worker that her children said Johnson was smoking in her bedroom when they were at the daycare.

Another complaint came from a woman who had custody of her niece and nephews, all under the age of five. It is noted that she noticed Johnson was not keeping the kids clean or changed. She said many times Tara was gone from the home and not supervising the kids. Each time she picked up the kids, she noticed they were in a back room. She said she never saw Caleb Stewart because he was left alone in a back room.

Misty said she didn't see any red flags, because she was always the first parent to drop her child off in the morning.

"I didn't see a lot of the things the other parents would see as they day would progress. There [weren't] signs."

Although Johnson has lost her day care license, Misty feels a need for possible criminal action.

"If you're taking responsibility, especially over a child's life, and something happens to that child, I don't care, you're responsible," she said.

Meier-Hummel and Kruger both said that children's safety is the priority within their agencies.

"Of course the safety of the kids in the childcare is our number one priority and that's the whole reason for regulating child care, but we do go back to regulations and we follow our procedures," Kruger said.

After a death, DCF looks to see if any other children are at-risk. "We dont just get a death reported to us and start looking back through records," Meier-Hummel said. "There has to be new concern with which we'd be trying to figure out, is there some safety issue going on."

When a death occurs, she said the agency does want to go back and look, if there is cause, to see what can be learned.

The case has been turned over to the Shawnee County District Attorney's office to determine any charges.

The medical examiner who performed Caleb's autopsy told 13 News he wasn't sure what information he could share regarding to cause of death.

But Misty told 13 News the coroner said he was uncomfortable with the way Caleb died.

"We protected our child and I went to work and I left him with somebody that they told me was okay. My family feels failed. We feel failed."

13 News spoke with Tara Johnson on the phone Tuesday. She told 13 News she did not want to comment.

As of May 10, KDHE informed 13 News of a pending complaint filed against Johnson on May 6, 2013. The allegation was that Johnson was providing daycare again. A surveyor inspected the entire premises and found no unrelated children in care.