Wrongful death lawsuit filed against local daycare after infant death; police find nothing criminal

RIVERSIDE — A Kindercare Learning Center on Burkhardt Road is facing a wrongful death lawsuit after the Ohio Department of Job and Family Services found the location had multiple serious compliance issues after an infant, who was being cared for, died after being taken to the hospital last fall.

Elijah Neria died Oct. 16, 2020 after his mother took him to the hospital when she picked him up from the childcare center at 5387 Burkhardt Road.

In the lawsuit, the attorney for Neria’s mother said his death was caused after “all the defendants exhibited a reckless disregard for the safety of decedent.”

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A state inspection filed with the Ohio Department of Job and Family Services in the weeks following Neria’s death found the Kindercare did not contact a parent when an infant was not feeling well while in care of the program.

“The infant vomited, refused his second bottle, did not engage in activities, was unable to hold head in an upright position, and was held at least one hour prior to parent pick up,” the inspection report read. “When the parent arrived to pick up the infant from the program, the parent was informed that the infant child had been ill throughout the day. The parent took the infant to the emergency room where the infant died later that evening.”

Riverside police also conducted a months long investigation into Neria’s death. In February, after speaking with prosecutors and the doctor who handled Neria’s case, “it was determined that there was no negligence on the part of employees at the day care,” according to a Riverside police report.

“There were no charges that could be filed against anyone,” the police report read.

Neria’s death was caused by myocarditis, which is inflammation of the heart muscle, according to his death certificate. Myocarditis is commonly caused by viral or bacterial infections and medical conditions that damage the heart and cause inflammation, according to the National Institutes of Health.

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Attorneys with Kindercare have not yet responded to the lawsuit, which was filed two weeks ago in Montgomery County Common Pleas Court. Kindercare issued a statement to News Center 7 about Neria’s death.

“The loss of a child is unimaginable. While we aren’t able to comment on pending litigation, our hearts go out to the Neria family.”

During the same October inspection, the state also found “that a Child Care Staff Member had abused, endangered, or neglected a child.” As part of the state corrective action plan, Ohio Job and Family Services said the Kindercare needed to terminate that employee as a result of the serious compliance violation.

In addition to the two serious violations, the state also found seven other violations that were labeled as moderate or low risk.

>> READ THE FULL INSPECTION REPORT

In the lawsuit, the family of Neria is asking “for compensatory damages against all the defendants...in an amount that will fully and fairly compensate the decedent’s next of kin and the decedent’s estate for punitive damages and attorney’s fees.”

Since Neria’s death, the same daycare has had two other complaints file with Ohio Department of Job and Family Services. During inspections following both complaints, the state found multiple compliance issues.

In January, the state found the location failed to report a serious incident in the Ohio Child Licensing and Quality system after a child received a bump or blow to the head that required first aid or medical attention, according to the inspection. During the same inspection, the state also found that children were not protected after a “storage closet was left open with a washer, dryer, vacuum, and other hazardous items.”

More serious allegations were made against the daycare again in August when someone reported to the state that the daycare center was not reporting suspected child abuse and neglect. An inspection found the allegation to be substantiated after the state “determined that the program failed to immediately notify their local public children services agency of suspicions that a child had been abused or neglected.”

During the August inspection the state also “determined that a child care staff member used a discipline technique to guide or discipline child(ren) that was not developmentally appropriate, consistent, or occurred at the time of the incident.”

On Tuesday, the Ohio Department of Job and Family Services did an unannounced annual inspection of the facility and found 18 violations. None of the violations were considered serious, however five were classified as moderate risks and the remaining 13 were low risks.

Tuesday’s inspection found the daycare center failed “to maintain the appropriate staff to child ratio for each group served.” Kindercare also was found to have medication, Resinol and triple antibiotic ointment within the reach of children in the two’s rooms, according to the inspection.

The daycare has until Nov. 26 to submit a corrective action plan to the state following the most recent inspection.

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