Victim’s family sues Park Side Preschool and Heather Mitchell

The victim’s family has filed a wrongful death lawsuit naming First Presbyterian Church of Newark (the parent organization of Park Side Preschool) and its director Heather Mitchell. You can read the filing here.

The suit seeks damages in an unspecified amount and leaves the door open to add more defendants. It alleges that Park Side Preschool and Heather Mitchell directly caused the death by negligence. Specifically, the suit says, the defendants constructed the swing without anchoring or padding, knew or should have known it was dangerous, but still allowed children to play on it.

Park Side and Heather Mitchell did not respond to a request for comment.

Other legal inquiries

A civil lawsuit is not the only legal inquiry Park Side and Heather Mitchell face.

Newark Police Department was among the first responders to the initial 911 call. The police investigation is “still active and ongoing” according to Detective Andrew Musantry.

Finally, CCLD, the state regulator that oversees preschools, has referred Park Side to their legal division for possible administrative action. Outcomes can include losing the site license or being required to remove individuals. This process began in November and is still in progress.

Certified Inspections

Park Side initially refused to hire an expert to inspect the playground for safety, stating that it was “not needed.” Bowing to pressure from parents, such an inspection was recently performed. It revealed a number of new violations of CPSC safety guidelines, including inadequate padding and more unanchored equipment.

Heather Mitchell, director of Park Side Preschool, said that she “learned … that the requirements from licensing and the recommendations from the Inspector are different.” All the recommendations from this inspection were from the CPSC Public Playground Safety Handbook, which preschools in California are required to follow. Park Side said in October that they “have again reviewed the requirements of … [the CPSC] Public Playground Safety Handbook … to guide us.” Yet it took a “not needed” inspection to actually meet those requirements.

The violations have been corrected, and the inspector has signed off on the corrections. For the first time since the tire swing was installed, it is fair to say that the main playground has been inspected and meets safety standards.

The inner courtyard and its play structures remain uninspected.

Edited 3/11/2019 to clarify the dates discussed

Mulch email sent before the incident

At the parent meeting on 11/5/2018, Mike Marzano stated that mulch padding had been on order at the time of the incident. An email was sent the afternoon before the incident from Heather Mitchell, director of Park Side Preschool, to the parent volunteer installer. It clearly shows that Heather Mitchell knew that mulch was needed but allowed children to use the swing anyways.

The rubber mulch just comes in pounds 40-50 lb bags. I can buy either 1000 or 2000 lbs. I hope this helps. Please let me know about the wood border too. Do you want me to purchase it or can you and I pay for it? Thanks again the kids ❤️ The new swing set up!

New citation and other updates

Park Side sent out an update email last week. It’s taken some time to try to verify the information in it.

New citation

CCLD issued a new citation on 11/15/2018 in response to a parent complaint, for “maintenance-related hazards” on the playground which are “a potential threat to the health and safety to children in care.” The hazards are to be corrected over Thanksgiving break, and Park Side is to develop a plan to better maintain the playground.

Why wasn’t this citation given along with the citations for the tire swing frame?

Despite Park Side’s claims, this is the first time CCLD has inspected the playground as a whole. The 10/22/2018 visit right after the incident was focused on interviewing Park Side staff and did not include an inspection of the rest of the playground and school. While this email talks about “all the inspections,” no other inspections have been documented.

Independent inspector

CCLD inspections are important, but they are broad and do not have detailed criteria for playground safety. Park Side had already agreed to parent demands for an independent inspection. With this progress update, an inspector has been selected, but their report is not available. It is unclear if the inspection has occurred. Park Side hasn’t responded to a request for clarification.

Board meeting

A board meeting was held on 11/12/2018, with discussion about procedural changes and potentially adding a safety officer. Parents were not invited to attend the meeting. Park Side has not provided an agenda or minutes from the meeting, but gave a brief summary in the email.

The Overview has been updated accordingly.

Full Noncompliance Conference Summary

Park Side was required to provide the 11/1/2018 Noncompliance Conference Summary to parents. The PDF Park Side provided did not include all pages. When asked, Heather Mitchell sent me the missing fourth page.

Page four states that Park Side has been referred to CCLD’s Legal Division for possible administrative action. According to the CCLD Evaluator Manual, “License revocations, denials of initial license applications, Temporary Suspension Orders, and exclusions are examples of administrative actions.”

The Overview has been updated accordingly.