No Charges Filed Against Day Care Provider In Infant Death Case

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TOPEKA, Kansas (WIBW) -- The autopsy report is out on an infant who died in a day care home in February.

13 News obtained the results and sat down with the child's motther for her reaction, who feels that criminal charges should be pressed.

Misty Durham is still grieving for her son Caleb, and feels justice has not been served.

Misty says her phone calls to the Shawnee County District Attorney's office have gone unanswered.

"I've not had one person even tell me if they've made a decision or not."

Caleb Stewart was found unresponsive lying in a dog bed at Tara Johnson's unlicensed day care home in February. He later died. Johnson was not home at the time of the incident and had left Caleb in the care of another female. CPR was not administered until medical personnel arrived at the home.

"She had a signed contract with me to perform CPR on my child and she didn't do it," Misty said.

The Shawnee County Coroner's autopsy report - released to 13 News - says suffocation cannot be ruled out, but there is no physical or anatomic explanation for why he died.

The Sheriff's office tells 13 News based on that, and other findings of its investigation, it will not forward charges to the DA's office.

"I can't change what it is they've decided to do, but I deserve to have all the information that they have that's helped them come to the conclusion of whether or not to press charges."

Misty says she has been waiting for three weeks to sit down with someone from the District Attorney's office to discuss whether or not charges will be filed. She said waiting has her frustrated.

"It's been about four months since my son's died. I believe that is sufficient time for them to have all their ducks in a row and have some answers for his family," Misty said.

Shawnee County Health Agency reports show Caleb was not being supervised when the incident happened. Although no physical harm may have been done to her son, Misty still feels the situation warrants an abuse or neglect charge, at the very least.

A list of previous complaints against Johnson's day care home were investigated by the state, but unsubstantiated.

"I believe the state could have done a better job," Misty said. "Really, all that would make me happy is for them to say that they should've done a better job and next time they will."

The District Attorney's office would not comment on the decision to not pursue charges.

"Nothing I do or say is going to bring Caleb back, but the actions that took place that resulted in his death, I believe, shouldn't be allowed," Misty said. "All I want to do is change it for the next kid."

Tara Johnson is no longer running her day care home.