MEMORANDUM OF LAW

Memorandum of Law Student’s Name Institution Course # and Name Instructor’s Name Submission Date MEMORANDUM OF LAW Date: July 27, 2024 To: From: Re: Liability of Step-By-Step Daycare in the Case of Nicole Cabrera Facts of the Case On November 10, 2023, Mrs. Lewis went to Step-By-Step daycare in Lyons to pick up her child and found him full of bruises. After encountering the ordeal, she reported to the daycare concerning her son. The employees assured her that the reviewed CCTV camera footage did not indicate anything concerning. Moreover, they mentioned that no form of negligence or child abuse was noted from the footage. The Lyons Police Department conducted an investigation and contacted Mrs. Lewis concerning video evidence that was found of an employee at the daycare (Nicole Cabrera) abusing children, including Mrs. Lewis' child. Briana Lopez, a parent, contacted the police, indicating that her child was abused at the daycare. The child had injuries on the back of her head and the left side of her ear. The video evidence indicated that Nicole Cabrera had slammed the child on the floor. The Lyons Police indicated that Nicole had abused over nine of the children, who were all under one year. Samantha Adams, a parent, indicated that her child had been abused and provided the necessary information to the police. The child was abused over times in a day every time he was taken to the daycare. Step-by-Step decided to fire Nicole and continued to work hand in hand with the police. On December 27, Nicole Cabrera was finally arrested for one misdemeanor battery charge and no counts of felony child cruelty in the first degree. Cabrera is out on a $25,000 bond. Legal Issues Presented in the Case 1 Can Step-By-Step Daycare be liable for failure to report the abuse perpetrated by Nicole Cabrera under O.C.G.A. § 19-7-5? 2 Did Step-By-Step Daycare adequately fulfill their duty of care to the children under their supervision? 3 Is there sufficient evidence to pursue charges against Cabrera for child cruelty? 4 What are the legal implications of the daycare’s initial assurance to Mrs. Lewis regarding the camera footage? Analysis Liability for Failure to Report Under O.C.G.A. § 19-7-5 The stipulated laws ensure fair and equal treatment and promote all citizens' general safety. Based on O.C.G.A. § 19-7-5, it is unlawful to fail to report cases of child abuse. According to the Georgia Office of the Child Advocate (n.d), the statute reads: "In cases where this Code section mandatorily binds a person or institution to make a report of suspected child abuse, then they shall report do so by telephone or go physically to the nearest office of the Department of Family and Children Services or the local law enforcement agency” (O.C.G.A. § 19-7-5). The daycare failed to report information on the video footage that indicated that the children were facing abuse. Step-By-Step daycare did not analyze the video footage sufficiently to detect instances of child abuse. If it is then established that the daycare staff had reasonable cause to suspect child abuse but failed to report the observations, then it would only be expected that the daycare would be held responsible for not meeting legal obligations. After Mrs. Lewis noted that her child was full of bruises, the daycare confirmed that it had looked into the video footage evidence but found nothing alarming. Based on this evidence, it is clear that the daycare failed in its legal obligation to provide care to the children (Lippard & Nemeroff, 2020). Therefore, failure to detect poor employee conduct will have legal repercussions for the daycare. The daycare went against the statutory law O.C.G.A. § 19-7-5 on reporting child abuse to ensure the protection of children. The persons responsible for the care of children are mandated to promote the safety and well-being of the children. The Washington v. James-Buhl was a case of failing to report child abuse (Samarah et al., 2020). Tanya Desiree James-Buhl received information from her children that their stepfather was abusing them. The Washington Supreme Court found James-Buhl guilty of failing to comply with the statutory rule. Similarly, the daycare failed to report Nicole Cabrera's unlawful actions toward the children, indicating that they violated a legal provision. Breach of Duty of Care The daycare violated the provisions on duty of care under O.C.G.A. § 51-1-2 which indicates gross negligence on the employee’s part. The daycare went against the duty of care provisions through the atrocities committed by one employee. The institution did not conduct rigorous investigations to identify the perpetrator of the heinous crimes against children. According to the Georgia Department of Human Services (n.d), internal investigations must be conducted efficiently, timely, and legally based on facts to avoid basing judgment on personal biases and unsubstantiated opinions. The negligence of daycare duty entails bruises and other physical marks on the child. Parents entrust daycare to their children to ensure safety and security, but this scenario was not the case due to negligence. Based on the case, the daycare needed to conduct interviews with employees using the physical evidence collected and the testimonies of key witnesses like staff and parents. If the daycare failed to acknowledge or act on potential signs of abuse reported previously, it would be required to be held accountable for failing in the duty of care. The Williams v. Dimension Health Corporations case indicates a breach of duty of care by a service provider. The hospital failed to screen him carefully to analyze his condition after an accident, which led to a delay in stabilizing his condition (Hartill et al., 2021). The court found the hospital guilty since it was vicariously liable for its surgeon's negligence. Similarly, daycare should be charged because of its employees' incompetence. When parents leave their children in daycares, they expect the best care and safety measures. Thus, the daycare needed to ensure that the children were well taken care of daily at the daycare. Legal actions must be taken against the daycare for failing to do its duty. Child Cruelty Under the guidance of the provision of O.C.G.A. § 16-5-70, Nicole Cabrera, an employee of Step-By-Step, has criminal charges for misdemeanor battery and nine counts of felony child cruelty in the first degree. Cabrera was physically abusing the children, which inflicted them with pain. Based on the video evidence, the children were slammed on the floor, which indicates a form of physical assault towards a minor. From the report, another victim had injuries on their ear, which indicates that the child had suffered harm under her care. Samantha Adams, a parent at the daycare, indicates that her child was abused four times a day. The intense severity of the abuse shows that her moves were premeditated. The evidence indicates that the accused is liable to stand trial for her crime. The occurrence indicates that the moves were premeditated since she conducted them daily. Legal Implications of Initial Assurance The daycare assured Mrs. Lewis that there was no evidence indicating that the children were facing abuse under their care. However, later on, the Lyons Police Department provided findings that there was video evidence of the children facing abuse. Thus, it is evident that initially, the management at the daycare was obstructing justice by providing false information to the parents. In the future, parents might fear leaving their children unsupervised in daycare facilities. The evidence indicates that the daycare facility gave false information when the parents inquired. The daycare violated the provision of O.C.G.A. § 16-10-20 due to providing false and unsubstantiated information to the parents instead of making inquiries and collecting information—the New York Times v. Sullivan court case was based on a case on defamation. New York Times had published an inaccurate story; hence, Sullivan sued them for defamation. The court ruled in favor of Sullivan since it found the defendant guilty of falsifying information (Dodaj, 2020). Similarly, the daycare violated the provision of false information by providing insights on a crucial matter without substantiating their claims. Therefore, daycare violated the provision of accurate findings at all times. Conclusion The liability included in the daycare equation is monitoring the conduct of the staff and intervening when misuse is identified. If the daycare failed to acknowledge or act on potential signs of abuse reported previously, it would be required to be held accountable for failing in the duty of care. If the assurance was given based on wrong information, the daycare could receive more inquiries or even legal charges for giving the parents wrong information. The evidence presented should be carefully scrutinized to ensure that the perpetrators are held accountable. References Dodaj, A. (2020). Consequences of child abuse and neglect. The Central European Journal of Paediatrics, 16(2), 168–181. https://doi.org/10.5457/p2005-114.275 Georgia Department of Human Services (n.d). Conduct of internal investigations https://dhs.georgia.gov/sites/dhs.georgia.gov/files/imported/DHR-OIS/DHR-OIS_Policies/830.pdf Georgia Office of the Child Advocate (n.d). Mandated Reporting. Available at: https://oca.georgia.gov/training/mandated-reporting Hartill, M., Rulofs, B., Lang, M., Vertommen, T., Allroggen, M., Cirera, E., ... & Stativa, E. (2021, November). CASES: Child abuse in sport: European statistics–project report. In CASES: The prevalence and characteristics of interpersonal violence against children within and outside sport in six European countries: UK Results. Available at: https://research.edgehill.ac.uk/ws/portalfiles/portal/50597491/CASES_Project_Report.pdf Lippard, E. T. C., & Nemeroff, C. B. (2020). The devastating clinical consequences of child abuse and neglect: Increased disease vulnerability and poor treatment response in mood disorders. The American Journal of Psychiatry, 177(1), 20–36. https://doi.org/10.1176/appi.ajp.2019.19010020 Samarah, O., Hendaus, M., Al-Khuzaei, A., Hamad, S., Selim, B., & El Ansari, W. (2020). Child abuse and neglect in a rapidly developing country: Parents’ perspectives. Journal of Family Medicine and Primary Care, 9(6), 1-25. https://doi.org/10.4103/jfmpc.jfmpc_971_19 Appendices Appendix 1: Statutory Law 2022 Georgia CodeTitle 19 - Domestic RelationsChapter 7 - Parent and Child Relationship GenerallyArticle 1 - General Provisions§ 19-7-5. Reporting of Child Abuse; When Mandated or Authorized; Content of Report; to Whom Made; Immunity From Liability; Report Based Upon Privileged Communication; Penalty for Failure to Report; Spiritual Treatment for Illnesses * The purpose of this Code section is to provide for the protection of children. It is intended that mandatory reporting will cause the protective services of the state to be brought to bear on the situation in an effort to prevent abuses, to protect and enhance the welfare of children, and to preserve family life wherever possible. This Code section shall be liberally construed so as to carry out the purposes thereof. * As used in this Code section, the term: ...