Are there enough laws in place that govern private and public day care facilities to effectively guarantee the safety of American children? It is a topic that is being more closely scrutinized, as downward pressures on day care businesses place children at risk of injury while staff, supplies, and facilities are downsized or budgeted to remain competitive. 

Inherently, parents trust day care providers to place the safety and wellbeing of children first.  However, every year in the United States, roughly 8.2 million children (approximately 40 percent of kids under the age of five) spend the week under the care or supervision of a team or individual who is not a parent. While other countries have established public and low cost childcare systems, the United States remains the equivalent of the “wild west” when it comes to standardizing certification, standards of care, and training and regulation – a fact that is increasingly placing American children at risk of injury and wrongful death. 

In this article, we will look at some of the contributing factors that increase injury and fatality risks for American children in day care, and provide some recommendations that could help reduce injuries and deaths for children under the age of five years by implementing legislation that would require more training for private residential as well as day care providers.

In America, the most high-risk place for a child is frequently the local neighborhood day care. Whether parents choose a day care center or a trusted member of the community who provides childcare in their home, approximately 60 percent of Sudden Unexpected Infant Death cases (SUIDs) occur when someone other than the parent is caring for the child. Of that number, 20 percent of SUIDs take place in registered day care centers, and 20 percent take place while the child is being cared for by an immediate family member.

What is most frightening to parents statistically is that over 30 percent of SUID cases occur within the first week of childcare, and 50 percent of that number of deaths occur on the very first day of care, according to the nonprofit organization First Candle. 

Unintentional or accidental minor injuries are common in day care centers among children who are mobile and over the age of 18 months. Major injuries are caused by lack of supervision or emergency training and response and are also common in day care facilities. These can include:

As a society and as trusting parents, we would like to assume that any injuries an infant or young child sustains in a child care environment are accidental due to oversight, omissions, or inadvertent negligence. However, authorities cannot rule out the number of cases that involve deliberate harm and abuse of children in day care settings.

However, a recent survey helped put some perspective on the misconception that children are at a higher risk of abuse in public, registered day care settings than from home residential care environments. According to the U.S. National Surveys of Children’s Exposure to Violence, researchers reviewed statistics from 2008 to 2014 and focused on answers from more than 13,000 children aged 17 years and younger.  

In the study, less than 1.5 percent of children reported that they had been victimized by a day care provider, or other caregiver from an organization, including a teacher, coach, or group leader. Verbal abuse from organizational leaders was reported at a rate of 70 out of 13,000, and 33 children reported physical abuse (violence, but not sexual assault) from non-relative supervisors and care providers. 

Unfortunately, 11 percent of children in the survey (more than 1,400 kids) reported that they were the victims of abuse by a family member or family friend in care and supervisory settings. While parents and educators teach children to be wary of strangers and to question engagements with non-relatives, family members appear to be the biggest threat to the physical and emotional safety of children. In the same survey, more than six percent of children reported abuse within the past twelve months. 

What this data demonstrates is that, although certification of public day care centers is an important step that can enhance the safety of infants and children, the greatest risk for wrongful death may be in the child’s home or under the care of an immediate family member, who may not have the skills or diligence to provide safe supervision.

Regardless of whether a legal team is pursuing action against an independent residential day care provider or a licensed business, the burden of proof falls to the victim’s family to demonstrate negligence. Building a case for wrongful death may also be extremely difficult for families who suspect an immediate family member or friend of being negligent in the care of their child.

A coroner’s report is crucial to determining cause of death, and is the starting point for all wrongful death suits. Other children under the care of the day care provider may also be called as witnesses or interviewed if abuse or negligent injuries were reported for other children in the home. As with all wrongful death investigations, the plaintiff must demonstrate that deliberate intention of negligence or omission of normal duties were involved, and directly contributed to the fatality of the child.  

Investigating a wrongful death case takes time and evidence that is admissible in court.  The first determination is the statement of limited liability, if any, that parents have signed for non-registered day care facilities.  One of the inherent advantages of using unregistered day care services is, of course, cost; however, independent day care providers (i.e., residential) are unlikely to maintain insurance to cover legal liability.   

In the event of a wrongful death suit, the parents may have legal recourse but the defendant may not have the insurance or means to be able to pay a settlement. This is another factor for consideration by parents who may wish to carefully consider the more affordable – but statistically more dangerous – option of engaging a private residential child care or family member for care.