© 2011 St. Louis Post-Dispatch

Bret and Stacey Brody's son died under the watch of a child care provider who knowingly broke the rules and a system that let her do it.

On July 1, 2010, Alva Roberts placed Tyler, 2 months, on his back in a crib with a blanket tucked up to his chest in her Valley Park home day care. The blanket ended up over his mouth and nose, and he suffocated.

A thick packet of state documents obtained by the Brodys after Tyler's death show Roberts had broken the law that day by caring for at least eight children younger than 2 without a state license. And the records indicate she was caught four years earlier tending seven children in Bourbon, Mo., also without a license.

But she wasn't punished.

Had Roberts been prosecuted then, as allowed by Missouri law, the Brodys believe they could have learned about it and never hired her. Or even if they hadn't known, maybe a punishment years ago would have forced Roberts into compliance.

"It could have saved Tyler's life," Stacey Brody said.

Tyler was among 41 children who died from 2007 through 2010 in day cares not regulated by Missouri. The deaths typically occurred in home-based facilities, where many providers are exempt from needing a state license because they care for only a handful of children.

But the deaths of Tyler and seven other babies were different.

Each occurred in home day cares where providers were trying to watch as many as a dozen children on their own, creating a breeding ground for accidents.

The eight deaths point to a system in which providers can easily and repeatedly skirt rules, enrolling far more children than allowed in unlicensed facilities.

Four of the deaths in illegally unlicensed day cares involved providers who previously had been caught breaking this child care law - sometimes multiple times.

None was punished. All went on to take on too many children again.

And then a child died in their care.

In all but one case, the deaths were ruled to be accidental. But documents obtained by the Post-Dispatch also show that the deaths occurred after the caregivers failed to take precautions known to prevent infant sleep deaths.

Had those day cares been licensed, they would have been inspected by the state and required to maintain sufficient staff and to give sleeping babies proper attention.

Stacey Brody thinks that could have been the difference for her son.

If Roberts had fewer children in her home, maybe she would have checked on Tyler more frequently the day he died, Brody said. Maybe Roberts would have had the time to change Tyler into the special sleeper the Brodys had directed her to use to reduce the risk of sleep death.

Even after Tyler died, state regulators could not prevent his caregiver from watching children.

That's because Missouri's system is so weak, it lacks authority to close down providers who are improperly operating without a license or to check on how many children are enrolled. Nor do prosecutors consistently go after providers that are operating illegally - even after a child has died.

Moreover, the Post-Dispatch found that police investigating a child death overlook or fail to report caregivers who are tending too many children. In at least two cases, investigators either missed or did not pass on such evidence to regulators and prosecutors.

"Parents are basically on their own," said Bret Brody. "They should have no faith in any part of our child care system."

WEAK FINES

Steve Blecha called it "a kick in the gut." It was the moment he learned that the maximum punishment Leslie Lutz of Arnold could face for caring for too many children without a license in Missouri was a $200 fine.

Steve and Shelley Blecha's infant son, Nathan, accidentally suffocated in a portable crib in Lutz's home day care in 2007. He was put down for a nap on his abdomen with his mouth and nose near a gap between the mattress pad and the crib. Police determined that Lutz was caring for 10 children, four of them related to her. State law allowed her to operate without a license as long as she cared for a maximum of four children unrelated to her.

Lutz said she closed her day care after Nathan died. But little else happened. Jefferson County prosecutors chose not to pursue charges against Lutz for operating the day care.

Jefferson County assistant prosecutor Michael Ravetta said in 2008 that because the crime was just an infraction and the punishment was so minimal, it wasn't worth the effort. He has since prosecuted a case against another caregiver. He now says it's valuable to file charges in an effort to persuade caregivers to comply.

Lara Flieger also waited for something to be done after her daughter, Kalieaynna Stiff, died in day care. Kalieaynna, 3 months, suffocated after being propped up on a couch in 2008 in the care of unlicensed Florissant provider Jennifer Cunneen. Police found 12 children under the age of 2 in the home that day. Regulators notified St. Louis County prosecutor Robert McCulloch, but no charges were filed.

Bret Brody said after Tyler died, there was confusion about who had jurisdiction over the case. He said it took six months to get Roberts charged.

"We feel if we didn't follow up on it, nothing would have been done," Brody said. "This one would have been like all the others that fall through the cracks."

McCulloch agreed there was a delay in charging Roberts. He said he has since directed specific lawyers in his office to to examine all new illegal day care cases. The decision to prosecute could depend on whether the provider willfully broke the law or didn't know the rules.

Roberts pleaded guilty in August to two counts of running an illegal day care.

She got the maximum punishment: a $400 fine.

CAUGHT BEFORE

Margaret Donnelly, director of the Missouri Department of Health and Senior Services, said child care regulators are now required to report all day cares improperly operating without a license to local prosecutors by letter, listing the evidence. Prosecutors choose whether to file charges.

"I can only say that we're making the referrals, and I'm getting regular reports about prosecutors taking action," Donnelly said. "I think prosecutors understand it is a very serious problem."

That communication may be taking place now. But in some past cases, regulators failed to notify law enforcement. Instead they gave warnings to providers and told them to reduce the number of children in their care.

But regulators had no way of knowing whether they complied. Missouri laws allow no inspections of unlicensed providers, except in responding to a complaint. Essentially, the providers are put on the honor system by regulators and asked to police themselves.

Such was the case with Kristina Harvey. She was found caring for too many children on Feb. 14 and Feb. 28, 2005, but prosecutors weren't notified. Each time the investigation closed after Harvey told regulators she would reduce the number of children in her care, documents show.

Two years later, Cooper Phillips, 4 months, accidentally suffocated while napping in an adult bed at Harvey's unlicensed Jefferson City day care. Inspectors found Harvey was caring for seven children, three over the state limit.

Harvey declined to comment for this story.

Even after Cooper died, state regulators did not notify Cole County prosecutors.

In at least one death, it is clear that a provider knew she needed a license.

Roberts, Tyler Brody's caregiver, told the Post-Dispatch she was operating without a license. In an interview at her home, she said she had planned to get one eventually.

She said she grieves daily for Tyler. She still can't fathom how the blanket led to Tyler's death.

A former manager of a Kindercare in Ballwin, Roberts had previously been licensed three times in Franklin County to run home day cares.

She said there was no connection between her licensing status and Tyler's death.

"I was over four children, but over four wasn't what made him pass," she said.

MISSED INVESTIGATIONS

After a child dies in licensed day care, state regulators automatically conduct an inspection.

But regulators are called to unlicensed homes only if there is suspicion the caregiver was operating illegally when the child died.

The Post-Dispatch found instances when that didn't happen despite evidence in police reports and medical examiner findings that the child care providers may have been over the legal limit of children.

When Nathan Clifton, 3 months, died in 2009 while napping on a futon in an unlicensed Florissant home day care, police reported that eight children were in owner Belynda Frame's care as well as two children related to her.

Contacted by phone, Frame said only four children unrelated to her were in her home when Nathan died. She said state licensing inspectors did not visit her home or contact her after Nathan's death.

In its investigation, the Post-Dispatch also repeatedly found police reports that failed to document the number, names and ages of children at the day cares where a child died. Without this information regulators lack evidence to substantiate day cares that are operating illegally.

For example, after Henry Brenner suffocated in an adult bed in an unlicensed St. Ann day care, his parents learned from a medical examiner's report that seven children were in the home. Yet the police report contains no reference to the number present when Henry died.

As a result, Stephanie and Eric Brenner said they think their son's day care may have been out of compliance and not properly investigated. Provider Rae Peterson Krawzik, a St. Ann alderman at the time, insisted in an interview she was in compliance. Krawzik said she did not recall regulators investigating her after Henry died.

Suzanne McCune, of the St. Louis County medical examiner's office, said many police departments simply don't know the child care laws and what needs to be documented.

STILL CARING FOR KIDS

In Missouri, regulators cannot permanently close day cares that are operating illegally, even after a death. And while prosecutors can ask judges to take action against substandard day cares, such steps rarely occur or hold up in court.

Parents of children who died say they must live with the consequences. That often means knowing that their former providers are continuing to care for children without state scrutiny.

The Brenners in St. Ann live within view of Krawzik's house. A few weeks after Henry died, the Brenners say they saw parents delivering children to Krawzik's front door for care. Krawzik told the Post-Dispatch she had stopped caring for children.

Clifton, whose son Nathan died in Frame's Florissant day care, said she later found Frame advertising her child care business on CraigsList. Frame said she still cares for children but not infants.

Tyler Brody's former caregiver also continues to care for children. Most parents considering hiring Roberts will never know what happened to Tyler, Stacey Brody said.

"I wanted to go put a cross up near her yard to let all these families know a child died there," she said.

Roberts told the Post-Dispatch she reduced the number of children in her care to fewer than five.

Regulators have no way of knowing for sure.