Misrepresentation by a Child Day Care Provider in New York

What does it mean to give misrepresentations in childcare?

A misrepresentation in childcare indicates that a person or entity involved in childcare has provided false information about the services or other important information to those who would want to know such information. Also, the failure to provide pertinent information can be considered a misrepresentation.

Examples

Here are a few ways that a person can provide a misrepresentation in childcare.

• A child daycare center advertises that its daycare has a perfect safety record when, in reality, it has had several serious safety violations and incidents involving young children.
• A daycare worker does not inform parents that if an infant is experiencing pain from teething, they are automatically given Tylenol.
• A daycare provider fails to disclose an employee has a criminal child abuse record.
• A daycare center that has a large pool out back states that only children over ten years old will be able to use the pool or be near the pool area. However, in reality, the daycare has teachers bring out smaller children to enjoy being around the pool.
• A daycare states that all children will sleep in specially designed and federally approved cribs. However, the cribs were certified over ten years ago, and both the certification and the expiration date of the crib have passed.
• A person seeking to obtain a childcare position from a couple lies that she has ten years of childcare experience when, in reality, she has only two. 
• A daycare center states that all of their workers are licensed by the state when only two of ten individuals actually are licensed, daycare providers.

These are not the only ways an individual can provide a misrepresentation in childcare. If a daycare or daycare provider makes a statement that is deceiving, concealing, false, or omits important details that a reasonable person would want to know, then it will most likely be considered misrepresentations in childcare.

If you or a loved one has been charged with misrepresentations in childcare, please call our law offices today. Our team of attorneys are exceptionally skilled and want to help you!

What does New York law say about misrepresentations in childcare?

New York law separates misrepresentations in childcare into two separate laws. Misrepresentations by a child daycare provider apply to all licensed child care providers or who hold themselves out to be licensed childcare providers. Misrepresentation by, or on behalf of, a caregiver for child or children applies to individuals who are seeking to be employed a childcare provider. This does not apply to licensed providers.

Misrepresentations by a child daycare provider

If an individual willfully and intentionally acts or omits to a parent, guardian, governing officials, police or peace officer, and that places the child at substantial safety or health risk while in the individual’s care, it will be considered misrepresentation by a child daycare provider. This law highlights three areas that may be considered a violation of this law.

• Inaccurately or not disclosing how many children are being cared for at the daycare.

For example, Jean runs an in-home daycare. Jessica has heard of Jean through a friend but wants to ensure that her son, David, receives the best possible care. David has an immune system deficiency and is recommended to have very limited contact with other children. 

She meets with Jean and lets her know of David’s condition and limitations. She asks Jean how many children she takes care of. Jean responds, “Only a few.” Jean runs daycare that usually has 15 children on average in a fairly small space. Jean has given a misrepresentation.

• Failing to disclose or misrepresenting areas to be used as a daycare

For example, Brent and Lanesha operate a small daycare center. Brent and Lanesha have a small kitchen that they tell parents and daycare inspectors that no children are allowed in the kitchen or associated spaces. 

However, Brent and Lanesha will often bring children into the kitchen if there are not enough providers for the proper ratio. A number of the children have severe food allergies, and much of the kitchen has open food items. Brent and Lanesha have provided misrepresentations.

• Not providing or falsely stating the credentials and licenses of all employees and associates.

For example, Serena operates a large daycare. Savannah has placed a large advertisement in her facility that all employees are licensed by the state as childcare providers. Serena has two employees, Christina and Bree, that have recently had their licenses revoked for repeated safety violations. 

Serena is close friends with the two employees and wants them to keep their jobs. She assigns them to be in charge of kitchen duty solely, but this is only on paper. Serena continues to allow Christina and Bree to be involved with various childcare activities and obligations. Serena has made multiple misrepresentations.

This law also states that these are some ways that the law can be violated. If an act or omission meant to deceive or conceal places a child at risk, it would be a violation of this law. In fact, if a daycare provider violates a provision of their license and seeks to conceal or downplay that fact, it will most likely be considered a misrepresentation.

Violations of this law are class A misdemeanors. The penalties associated with this are a maximum fine of 1,000 dollars and up to one year in jail.

Misrepresentation by, or on behalf of, a caregiver for a child or children

If a person who is being considered for employment by a parent or guardian to be a caregiver for his or her child or children, and that person provides a written false statement that a reasonable person would have relied on, it will be considered misrepresentation by, or on behalf of, a caregiver for a child or children. This law specifically exempts this from applying to licensed childcare providers.

• For example, Jamie sees a classified advertisement of a wealthy couple who is offering a substantial amount of money for a caregiver for their son. The advertisement states that the qualifications for the job need to be at least ten years of experience with licensed daycare, preferably at one identified as being at the top of the state. Jamie has had a lot of experience with young children, but never as a nanny or a daycare provider. 

She decides she will apply for the job and states that she has the proper experience. She asks her friend Carla to be her reference in case the couple calls to ask for verification of work experience. The couple calls Carla and Carla states, “Jamie is the best employee I ever had! She works very hard, and it was difficult to see her go after 12 years.” The couple is satisfied with this response and hires Jamie. Jamie and Carla have both made misrepresentations. 

This is a class A misdemeanor. Normally, the maximum penalties associated with this would be a 1,000-dollar fine and up to one year in jail; however, the statute states that the longest sentence of imprisonment can only be six months.

Defenses

There are a variety of defenses that can be raised against charges of misrepresentations in childcare. 

• Misrepresentation by a child’s daycare provider indicates that the misrepresentation must be willful and intentional. This means that the person provided the false, misleading, or deceiving, or failed to disclose certain information for the express purpose of causing a misrepresentation. 

• For example, Gloria is proud to state her daycare consists of licensed daycare providers who do not have any criminal records. However, Gloria does not always run a background check and sometimes accept what applicants tell her during interviews. Michelle is one of her employees that Gloria did not run a background check on.

Michelle has had her license revoked due to a child endangerment charge about seven years ago. Michelle told Gloria that she is currently licensed and has never been convicted of a crime. Michelle even fabricated a false license to show Gloria when Gloria checks the licenses once a year. Gloria has provided a statement that is false. One of her employees does not have a current license and has a criminal record. 

However, Gloria is not aware of Michelle’s status and does not willfully and intentionally make this statement to deceive. She genuinely believes that all of her employees are licensed and have no criminal convictions. This may not be reasonable to believe since she has not run a background check, but that is not the issue. She is not willfully and intentionally trying to mislead, which is what is required to violate the law.

• Another defense that can be raised with defense against misrepresentations by a child’s daycare provider is that the misrepresentation did not place the child a substantial safety or health risk. Substantial risk is not defined in the statute, but some of its examples give some clues at what would be placing a child at substantial risk. Too many children, unauthorized areas, and workers are all things that are considered to be substantial risks to children.

• For example, Yema tells all of the parents that the daycare center has been extensively remodeled. This is true. However, Yema also tells the parents that the marble countertops were imported from the best marble supplier in Italy. 

This is a false misrepresentation since she said this to entice some of the wealthier parents into thinking that Yema spares no expense when it comes to the daycare. However, this false statement that the marble came from Italy instead of a local supplier, most likely does not place a child at substantial health or safety risk.

• A defense available to individuals charged with misrepresentation by, or on behalf of, a caregiver of a child or children, is that the false statement must be written and must be material. If the false statement was given orally, the law would not apply. Also, the false written statement must have been material. While this is not defined in the statute, it is presumed that this means that a statement would be material if a reasonable person would want to know that fact is false. 

• For example, Clara is applying to be a caregiver for a couple’s children. On her resume, she feels that it lacks some experience that makes her seem more diverse. She places on the resume that she spent a summer learning how to blow glass with her grandfather, which is false. 

The couple ends up hiring Clara, but the couple barely noticed that statement on the resume and it had no bearing on her being hired. Therefore, Clara has made a false written statement, but it was not a material false statement.

New York law has two statutes that address misrepresentations in childcare. Violations of these are considered class A misdemeanors which can result in fines and incarceration.

Can someone be charged with other crimes when charged with misrepresentations in childcare?

Yes. Depending on the circumstances of the crime, a person who has made a false misrepresentation could also be charged with child endangerment and a scheme to defraud. Some other New York laws could apply, based on the situation.

Some federal laws could apply based on how that false misrepresentation was made. Charges of wire fraud and/or mail fraud could also accompany a charge of misrepresentations in childcare.   

What have the courts said about misrepresentation in childcare?

Due to the recent creation of the laws surrounding misrepresentations in childcare, the courts in New York do not have any reported decisions concerning misrepresentations in childcare. Misrepresentation by, or on behalf of, a caregiver of a child or children was only enacted on Oct. 2018. It was created in response to a tragedy that involved a caregiver murdering two children she was hired to provide care services for.

However, a court in Ohio examined a similar law to New York’s misrepresentations in childcare laws.

• In State v. Hartley, an Ohio appeals court determined that not informing parents that daycare providers were giving children melatonin supplements was an omission that could be punishable by law if it was part of the statute. It also stated that providing an over the counter supplement to children without the parent(s)’ consent created a substantial risk to the child.

The defendant, Pamela Hartley, administered a daycare in Ohio. She would provide melatonin to children right before lunchtime. She usually had the children eat in food, often in rolled up in a tootsie roll. Two previous employees blew the whistle on Hartley, and after confessing to providing melatonin to the children, she was arrested. 

Hartley was convicted of child endangerment and fraudulent misrepresentations. Hartley contested that she did not create a substantial risk for the children and that failing to disclose the melatonin administration is not punishable by the law since an omission was not considered to be a part of the Ohio law. The court agreed in part.

The court stated that providing a supplement to children without the consent of the child’s parents places a child at substantial risk, regardless if the person administering the supplement believes it to be completely safe. However, since Ohio law did not have omissions in their law that targeted fraudulent misrepresentations by childcare providers, the law could not be applied in Hartley’s case.

Therefore, the court affirmed the convictions of child endangerment and reversed the convictions of fraudulent misrepresentation.

To read the court opinion in full, please click here. Or copy and paste the following.

https://www.leagle.com/decision/inohco20110527566

Who investigates allegations of misrepresentations in childcare?

In New York, a number of administrative agencies are involved with childcare services. New York City’s Department of Health ensures that certain health regulations are complied with while the Office of Children and Family Services also have guidelines related to childcare. 

New York City’s Administration for Children’s Services licenses daycare centers and providers and provides inspections. Any of these organizations can investigate potential regulation or law violations. However, when it is determined to be a criminal matter, then it will involve the New York Police Department.

If the allegations include federal law violations, the Federal Bureau of Investigation usually investigates.

I have been charged with misrepresentations in childcare, what should I do?

Call us! A charge of misrepresentations in childcare is a very serious offense. While the associated criminal penalties may not be as substantial as a felony charge, this charge can take a huge toll on your business, reputation, personal and professional relationship, professional, and even personal opportunities. 

Being involved in deceiving individuals that increase risk to a child’s safety could cause a daycare organization to fail, even if the charges are eventually dropped or dismissed. The financial strain can be difficult, as well.

You need a legal team who will understand what is at stake with these charges. Our attorneys are well equipped to help you through the entire process. They will seek to serve your best interests.

Please call for a free legal consultation!

What might happen if I am convicted of misrepresentations in childcare or other violations?

It is difficult to state exactly what will happen in each case. Every circumstance is unique, and the consequences will also be unique. However, if you are a licensed daycare provider, you may have your license revoked. Sometimes it will be revoked permanently. As long as the penalty is not “shocking to one’s fairness,” the revocation and penalties will be upheld.

Here are a couple of court cases that had determined when revocation of a childcare provider’s license was fair and when it was not.

• In Matter of Lewis v. New York State Office of Children and Family Services, a New York appeals court determined that the revocation of the defendant’s license was wholly unfair under the circumstances.

The petitioner, Lewis, sought to stop the revocation of her license after she was cited for violating the regulation that states a daycare provider must have children supervised at all times. Due to several extenuating circumstances, a miscommunication with the children’s mother, an accident involving a supervisor’s daughter, and some other things, two children aged 11 and 13 were left unsupervised for about 20-30 minutes. 

However, during that time, they were able to contact Grady through text message and helped facilitate supervision until she could get there. However, she was cited for this lack of supervision, and her childcare license was revoked. 

She appealed, saying that the children were only unsupervised due to extenuating circumstances beyond her control and had taken several steps to ensure that the children would not be alone, but happened to fall through. The court agreed.

The court stated that Lewis had done all she could to prevent this from happening and when it did, she was able to arrange alternative supervision quickly and stayed in contact with the children during their time alone. 

The court allowed Lewis to keep her license.

To read this court opinion in full, please click here. Or copy and paste the following.

https://www.leagle.com/decision/innyco20140220285

• In Matter of Rembart v. Perales, the court determined that the revocation of the childcare provider’s license was reasonable.

The petitioner, Rembert, operated a daycare in her small apartment. She was authorized to have six children. On a surprise inspection, there were 12 children present at the petitioner’s home. The inspector warned the petitioner that she was in violation and could not have more than six children at the daycare at any time. 

On a surprise visit a couple of weeks later, the inspector found that the petitioner was absent and had a left a 16-year-old girl to watch the children. The children were promptly removed from the home, and her license was revoked. The petitioner appealed this determination by stating that the inspector said that having more kids at her house at any one time was perfectly fine. The court disagreed.

The court did not believe the petitioner was told that she could go over her allotment of six children in the apartment. And even if that was implied, it would not have been implied for 12 children. Therefore, the petitioner had her license lawfully revoked.

To read the court opinion in full, please click here. Or copy and paste the following.

https://casetext.com/case/matter-of-rembert-v-perales