Judge dismisses charges against Bennington daycare providers
BENNINGTON — A judge has dismissed charges against a daycare owner and one of her former employees who were accused of waiting too long to call 911 over a sick child in their care.
Debi Miller, 54, of Bennington, and Kristie Clough, 47, of Eagle Bridge, N.Y., were scheduled to appear in Vermont Superior Court Criminal Division Bennington Unit in June to answer misdemeanor charges of reckless endangerment and cruelty to a child under 10.
They were never arraigned. On June 17, Superior Court Judge David Howard dismissed the charges against both women, stating that there was not enough evidence to find probable cause for either charge.
Even though they no longer face criminal penalties, Miller and Clough say they have suffered greatly because of a press release issued by the Vermont State Police on May 25 which was reported by various news outlets and shared on Facebook.
Miller is the owner of Dooda's Daycare, which is undergoing a name change to North Bennington Child Care Center. She started out as a daycare provider 13 years ago, working from her home. She opened the facility in North Bennington two years ago.
On May 18, the business had nine employees with 42 children enrolled. Now, Miller says, she has three employees and 10 children enrolled. To break even on bills, the daycare needs to have approximately 22 children.
According to the May 25 press release, it was on May 18 that the Department of Children and Families was alerted to a "possible delay in medical care" to a 1-year-old child who had been dropped off that day at Dooda's Daycare.
State Police said in the release that Miller and Clough noticed the child was not alert after letting her sleep for a while. It was then "a considerable amount of time" before they called the child's mother, and several minutes past that before they contacted 911.
The release gave no specifics as to the time frames and when pressed for details by the Banner, police referred to the affidavit which was not available at the time. The affidavit, which the Banner ultimately obtained, included a number of timelines given by different witnesses, but the one police felt was the most accurate had 40 minutes passing between when the child was found unresponsive to when 911 was called.
According to the police timeline, the child was found to be unresponsive — which according to Clough meant difficult to rouse from a slumber; Clough maintains that the child was never completely "unresponsive" — sometime between 8:15 a.m. and 8:25 a.m. At 8:35 a.m. the child's mother was contacted by Clough. About 18 minutes went by, then the mother called the daycare to say she would be there within 20 to 30 minutes. Another 11 minutes later there is a second call from the mother. At 8:57 a.m. the mother called the child's doctor. At 9:05 a.m., Miller placed a call to 911. At 9:08 a.m., a nurse called the daycare and recommended Miller call 911.
"There is simply not enough evidence from this series of developing facts to show Ms. Clough acted with that intent to neglect or ill treat this child," Howard wrote in his decision regarding Clough. "The child arrived with no notice of any problem. Father (Who dropped her off at the daycare) noticed nothing apparently to rise to the level of thinking he had to mention it to the staff. The child then appears to sleep for 10-15 minutes and Ms. Miller and Ms. Clough realize this is unusual and react to it."
He wrote that Clough and Miller spent 10 to 15 minutes attempting to determine if there was a problem before calling the child's mother. During this time there was no evidence, besides difficulty waking, that there was something wrong with the child.
"They take measures to help the child while phone calls are made, including using a washcloth and taking the child's shirt and perhaps even trying to take its temperature," Howard wrote. "These are not neglectful actions or ill treatment."
He said the legal standard for recklessness is even lower, and even there the evidence does not show Clough and Miller were behaving recklessly given what they knew about the child's condition.
According to the affidavit, the child was diagnosed by a doctor at Southwestern Vermont Medical Center with "Respiratory Syncytial Virus," and in the emergency room the child stopped breathing and turned grey unless stimulated. The child was airlifted to Albany Medical Center in New York.
"While hindsight would demonstrate quicker decisions could have been made, that does not equal criminally responsibility," Howard wrote.
Miller said in an interview with the Banner that about a week after the incident she was asked to come to the Bennington DCF office. There she met DCF Investigator Chris Murphy, Licensing Field Specialist Elaine Crawford, and Detective Trooper Robert Zink of the Vermont State Police.
She said she did not know she was under criminal investigation until the end of the interview.
Clough's attorney, William D. Wright, of Bennington, said normally people under investigation are told this by police, but police will often sit in on interviews being conducted by licensing personnel.
"It's a trick, and it induces a lot of people to cooperate where they wouldn't ordinarily," he said. "That's the way they've done things in Bennington County for years. I do think the best practice for State Police would be to let them know they are there to conduct a potential criminal investigation."
After they were both interviewed, Miller and Clough were asked to come to the Shaftsbury barracks to answer more questions. By then they had obtained attorneys and ultimately went to have their fingerprints and photographs taken and to pick up their court citations.
They were sitting in the barracks lobby waiting for their citations when they learned news of their being cited had spread.
"My cell phone went off, it was one of my parents texting me asking me what was going on," said Miller. "She had just received a call from subsidy stating our business was shut down."
The business was reinstated June 24, meaning Dooda's was closed for about a month.
Miller said she called her clients as soon as she could and was angry someone else had done so on her behalf. Some parents were angry, "some of them were heartbroken for us, some made derogatory comments."
She said the closure left 40 families looking for childcare in the middle of the week, plus her employees were suddenly out of work, not knowing when they would come back.
Many didn't return, Clough being one of them.
"It was very emotional," Clough said. "I'm just heartbroken over the whole thing because I did nothing wrong."
Clough has worked alongside Miller at the daycare for seven years. The two knew each other before that.
"I still get a little queasy just think about it, knowing that I didn't do anything wrong but that I had to go weeks of running around in circles wondering what would happen to me," Clough said. "It was probably a week or two before I would attempt to leave my house. I cried all the time."
She said she is looking for a new job and hopes the bad press doesn't affect her ability to do that.
Miller said that while she is carrying on with the business, she is seeking to hire a program director and will take on a more administrative role.
"Am I happy about that? No," Miller said. "This isn't just a job for me. This is a passion. For 13 years I've loved working with children."
She had always wanted to be a teacher, but could not afford college. Her last job was at a local factory, where she worked with Clough. Upon learning she was going to be a grandmother, she took the necessary courses and training to become a daycare provider. Clough has had the same training, which among other things includes 180 hours of classes.
Miller said the center now has a policy that all children must be awake and alert before being left by parents.
"I'd like to thank my staff and families for their support during this critical time," said Miller, reading from a statement. "I would like to extend an apology to those who were forced to seek alternative childcare and employment and will not be returning to North Bennington Child Care Center."
State's Attorney Erica Marthage said earlier this week that because the case was dismissed by a judge she considers it unethical for her to speak of it.
— Contact Keith Whitcomb Jr. at 802-447-7567 Ext. 115
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