Opinion: Thoughts on Park Side’s closure

Today marks the six month anniversary of Macie Opperman’s death and the day Park Side chose for their last day in operation.

I’m sad that Park Side is closing. It’s a real loss for the community which doesn’t have enough quality preschools. My son still calls Park Side ‘his preschool’ even though he hasn’t returned and has been attending a different school for months.

I’m sad that Macie died. To lose a child is unimaginable. To lose her in such a preventable and foreseeable way makes it all the more meaningless.

I’m sad that good and loving teachers are losing their jobs. They’ve suffered through this, too. I hope they can find peace in whatever comes next.

I’m sad that I agree it’s necessary for the preschool to lose their license. There may have been a path where Park Side could have survived this crisis, but they were unwilling to take it.

Today is a sad day.

Park Side to contest revocation action after all

Despite telling parents that Park Side would not contest the state’s action to revoke their license to operate, they have filed an appeal. NBC Bay Area’s Vicky Nguyen was first to report this story.

According to Park Side’s attorney, Park Side still plans to close, with April 19 as the last day. There is a hearing scheduled for June 10 in Oakland where Park Side will have the opportunity to present their defense.

Revocation Accusation Document

Here is the Accusation, the legal document prepared by CCLD, the state regulator of preschools, starting the license revocation process.

There are three allegations claimed:

  1. Park Side “failed to anchor a play structure to the ground … causing the death of Child #1”
  2. Park Side “failed to cushion the area around the play structure…”
  3. Park Side “engaged in conduct that is inimical [harmful] to the health, morals, welfare, or safety” by failing to anchor or cushion the play structure.

The regulator “requests that … Park Side Preschool’s license to operate a child care center be revoked.”

The regulator’s level of proof needed is the same “preponderance of evidence” used in civil trials. This simply means that the regulator needs to prove it more likely true than not, a lower standard than the “beyond a reasonable doubt” standard used in criminal trials.

License revocation action started against Park Side Preschool

CCLD, the state regulator for preschools, has begun the process to revoke Park Side Preschool’s license to operate. Park Side was served with the legal papers last Wednesday, Februrary 27. Park Side can continue to operate through the process.

Park Side has the opportunity to defend against the action, in which case a hearing will be held. The hearing is like a civil or criminal trial presided over by an Administrative Law Judge. State’s attorneys will present their evidence and representatives from Park Side can do the same.

No hearing date has been set and the details of the accusation were not immediately available. (Update 3/6/2019: Accusation document is now available) The pending action is visible on CCLD’s site.

Surprise inspection yields new citation

Last week, on 1/14/2019, CCLD visited Park Side for an unannounced inspection. Most elements were in order, including parent acknowledgements of the previous Type A (“immediate risk”) citations for the swing frame. One new Type B (“may become” a risk) citation was issued. You can read the report here.

The citation was issued because Park Side was unable to provide a current roster, including name, parent and doctor names and phone numbers. I was able to verify with CCLD that Park Side did have the required information about children in care. It was located on Rolodex cards. Due to this format, Park Side couldn’t provide CCLD a copy on request, as the law requires. A version using the standard form was sent to CCLD later that day.

Following legal requirements is of course important, but all evidence is that Park Side had contact information available if it became necessary.

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.