Sacramento Law Group

Unsupervised Children in Water

The State of California Department of Social Services has cause to revoke the family child care home license of any licensee who has left any child in water without supervision for any amount of time. The Department has taken a strict stance on this Title 22 violation, and once reported, may very well result in revocation of the license. If any children in the care of a licensee will be in any water, a supervising adult should be nearby and provide actual supervision. This means that the adult’s attention should be focused solely and completely on the child, and not occupied by any other distracting activities. Any water includes a bathtub, swimming pool, spa, wading pool or any other body of open standing water. Even if the young child has undergone formal swimming lessons, actual adult supervision is still required. Additionally, the implementation and use of flotation devices and air-filled swimming aides (“floaties”) is not a substitute for actual supervision.

D.S.S.’s Reasoning

The Department has ruled that “because of the foreseeable, serious risks associated with drowning and non-fatal submersion injuries, caregivers should never – even for a moment – leave a young child alone or in the care of another young child while the young child is in…a body of open standing water”. According to the Center for Disease Control, whose stats the Department relies on, drowning remains the second-leading cause of injury-related death for children ages 1 to 14 years old. Children under one most often drown in bathtubs, buckets or toilets, while children ages one to four most often drown in residential swimming pools. Most children who drowned in pools had been out of sight for less than five minutes from their supervisor. Even non-fatal incidents lead to long-term brain damage and can result in disabilities ranging in severity.

Statutes & Regulations

The Department has the authority to suspend or revoke any license under the California Heath and Safety Code, Section 1596.885. This statute states that any license can be revoked upon the violation by the licensee who engages in “(c) Conduct which is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility…”The Department has cited licensees who have left children alone in water for any time, violations of Title 22, California Code of Regulations, section 102423(a)(2), section 102417(a), and section 102417(a)(5) as causes to revoke their license. Section 102423(a)(2) is the right of the child and their guardian to “receive safe, healthful, and comfortable accommodations, furnishings and equipment.” Section 102417(a) provides that the licensee shall be present and shall ensure that children in care are supervised at all times. If the licensee will be unavailable a substitute adult should be arranged to care for and supervise the children during their absence. Section 102417(a)(5) covers the regulations that are to be followed to ensure the inaccessibility of pools through a cover, or a fence that shall be at least five feet high.

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