Family distraught after learning daycare where toddler drowned will not face charges or be made to pay damages

SEMINOLE COUNTY, Fla. - A family is livid after learning the daycare where their two-year-old child drowned will not face criminal charges. They also learned their civil suit against the daycare won’t get them anywhere because even if they win, the daycare has no way to pay up. 

Wesley Bailey drowned at his daycare in Chuluota on May 9, according to investigators. His mother is still too upset to speak with the media. Instead, the toddler’s grandmother, Libby Bailey, sat down with FOX 35 News.

"Wesley was so full of life. He had the most gorgeous smile and the most infectious laugh," said Bailey. 

The Seminole County Sheriff’s Office incident report explains the disaster moment by moment. The daycare owner brought one child inside to go to the bathroom but left five others outside by the pool. That’s when tragedy struck. 

There was a mesh fence surrounding the pool, but The Department of Children and Families said its officers were able to push it open easily, even when it was shut and latched. That’s how the little boy got inside, they said. When deputies got to the scene, they found Wesley laying on the deck in a pool of water, blue and not breathing.

"His heart rate started decreasing slowly, and at 6:30, we lost him," said Bailey. "I was so angry. I still am."

Wesley Bailey, 2, drowned at his daycare in Chuluota on May 9, according to investigators. [Credit: Elyse Loiacono and Libby Bailey]

The family has been searching for answers ever since the boy’s passing. 

"I just I need change," said Bailey. "I need for no other parent or grandparent or aunt or uncle to have to go through what we're going through right now."

They created a petition to try to change laws for daycares like the one Wesley attended. When they enrolled him there, his family thought the daycare was licensed. It was only after he passed away that they learned it was only registered. In Central Florida, the only County that requires daycares to be licensed is Brevard.

That’s also the only county that regulates licensing on its own, rather than deferring to the state of Florida’s Department of Children and Families. In Seminole, Sumter, Lake, Marion, Orange, Osceola, and Volusia Counties, home daycares can instead choose to simply be registered. That means they don’t have to be inspected.

The Seminole County Sheriff’s Office says the daycare owner wouldn’t have known the fence was shoddy, so they aren’t charging her criminally.

"She should have been checking her gate every single morning to make sure that it was properly locked. She should have never left children unattended for any period of time. I don't know how that is not prosecuted in some manner," said Bailey.

Wesley Bailey, 2, drowned at his daycare in Chuluota on May 9, according to investigators. [Credit: Elyse Loiacono and Libby Bailey]

The family also just learned its civil suit against the daycare is going nowhere – they won’t get the money they’d hoped would go to pay for funeral expenses and other costs.

"Her homeowner's insurance does not cover the daycare and her daycare insurance does not cover her pool," Bailey explained. 

That means the bill would fall to the daycare’s owner, who doesn’t have the money to pay it.  The little boy had gone through some swim classes, but his family says he was hard of hearing so didn’t fully absorb the lessons. He had just gotten a procedure that let him hear a week or so before his passing and had just become vocal.

"Just a few days before he passed away, he finally started talking and said, ‘Mama,’" said Bailey. "So we never got to hear his voice or what he had to say. We never had the opportunity to do that."

The family’s petition has already garnered thousands of signatures. They hope that will lead to a change in laws. They also hope to see some sort of action taken against the daycare.