CHARLESTON – Attorneys for a Cross Lanes daycare facility named in more than a dozen abuse lawsuits have filed a countersuit against one of the parents claiming defamation.
But the attorney for the the woman says the counterclaim is frivolous, baseless, meritless and "very obviously the wrong thing to do."
Dreamland Development LLC doing business as Cross Lanes Childcare and Learning Center filed its answer December 2 to Bethany Bird’s complaint filed October 30 in Kanawha Circuit Court against the facility, director Amy Williams and teacher Amber Seiler.
Wohl
| File photo
Bethany Bird is the mother of a four-year-old special needs child who claims Seiler physically and emotionally abused her non-verbal daughter, identified only as F.B.
In its answer, the facility denies the allegations as well as files a counterclaim against Bird, saying she has made various Facebook posts since October 25 containing defamatory statements about the facility.
“The Facebook posts contain a mix of opinions and facts,” the counterclaim states. “Plaintiff discussed the matters at issue in this litigation and stated, ‘The owner has stated he is closing the daycare due to the infractions from the last few years …’ This is false.
“Plaintiff (Bird) further stated that ‘DHHR has deemed that many violations took place not just physical, verbal and close to what I call sexually natured abuse but also violations that include room ratios, teacher to student as well as other admin issues (Meetings, trainings, etc.).’ This is false.”
The facility says Bird’s posts are defamatory, factually false and meant to intentionally and negligently harm the facility. It seems compensatory damages, punitive damages, pre- and post-judgment interests, court costs, attorney fees, injunctive relief and other relief.
But in a December 3 letter to attorney Gabriele Wohl, who is representing the daycare facility, Bird’s attorney says the counterclaim is frivolous and a violation of the West Virginia Rules of Civil Procedure. He says Bird’s actions are protected by the First Amendment because they are opinions.
“The counterclaim … is frivolous, baseless and without merit,” Michael Cary wrote. “Baselessly suing the parent of a special needs child that your client abused isn’t just a violation of the rules, it is very obviously the wrong thing to do.”
In the letter, which was filed as part of the court filings in the case, Cary says the counterclaim allegations are “legally insufficient and do not meet the threshold required for defamation.”
“The assertions made in these (Bird’s Facebook) posts cannot reasonably be construed as defamatory statements capable of damaging your client’s reputation or business interests, particularly when weight against the undeniable fact that your client is captured on audio recording engaging in the reprehensible act of spitting on a non-verbal special needs minor child involved in this matter,” Cary’s letter to Wohl states. “Given this serious and disturbing conduct, it is difficult to comprehend how you could assert such a counterclaim against the mother, who is simply seeking justice and accountability for the actions that took place …
“Moreover, there is no credible evidence that these statements were made with malice, nor do they meet the legal standard for defamation. Your client’s claims fail to allege any provable facts to substantiate the defamation allegations.”
Citing Rule 11(c)(2) of the Rules of Civil Procedure, Cary asks Wohl, who works in Bowles Rice’s Charleston office, to withdraw the “frivolous and baseless” counterclaim within 21 days. He calls the letter a “safe harbor” notice.
“If you fail to do so, my client will be forced to file a motion for sanctions with the court, seeking appropriate relief,” Cary tells Wohl.
Wohl did not return messages seeking comment, and Cary declined to comment on the matter.
According to Bird's original complaint, her daughter is nonverbal and has been diagnosed with Autism Spectrum Disorder level three. It says she was level two when she was first enrolled at the facility when she was 3 years old.
Bird says eyewitness testimony shows Seiler physically and emotionally abused children in her classroom, specifically targeting two special needs students including her daughter.
“Bird picked her child F.B. up from the facility with a black eye and never received an incident report or any sort of explanation from the defendants of how the child was injured,” the complaint states.
Bird says her daughter has suffered physical and emotional harm, including pain and suffering, emotional and mental anguish, loss of enjoyment of life, indignity, embarrassment, humiliation, annoyance, shame, inconvenience and other damages.
The complaint also says recorded audio footage from inside Seiler’s classroom has Seiler screaming at children, including:
* “Put your heads down now!” followed by crying.
* “You don’t tell Ms. Mary no! Do you understand me?”
* Slamming an item down to create a loud noise before yelling at an unknown child that he “will not get any special treats or toys or have any fun this week.”
* Seiler is heard slapping a child and demanding the children need to “keep their head down.”
“Witness accounts reveal consistent incidents where defendant Seiler’s behavior crossed acceptable boundaries, manifesting in ways that caused both immediate and lasting distress to the children under her care and further suggest a deliberate misuse of authority and a betrayal of the trust placed in educators to create a safe and nurturing environment,” the complaint states. “Defendant Amber Seiler’s conduct was atrocious, intolerable and so extreme and outrageous as to exceed the bounds of decency.”
The complaint also says multiple employees reported Seiler’s abuse to Williams, who responded with intimidation tactics or outright dismissal of the allegations.
“According to multiple accounts, when staff members brought forward their concerns about the ongoing abuse, defendant Williams would either threaten them with termination or deliberately ignore their reports, thereby creating a culture of fear and silence,” the complaint states. “Even more troubling, defendant Williams has terminated former employees for reporting the abuse witnessed by defendant Seiler and other employees inside the classrooms and also enforced a ‘no phone policy’ for all employees working inside classrooms to further hide the abuse of the minor children that took place inside the daycare center’s classrooms.”
The complaint says daycare employee Mary Adkins was present and witnessed abuse of F.B. and other children but failed to report it as required by state law. They also say Adkins shared the audio footage with the parent of another child. That parent posted the recording on Facebook, according to the complaints.
All of the complaints accuse all of the defendants of negligence, negligent infliction of emotional distress and a tort of outrage. They also accuse the facility of negligent hiring, negligent supervision and negligent retention.
The complaints seek compensatory and punitive damages as well as any other relief.
On October 27, the West Virginia Department of Human Services placed the facility on provisional license status and reduced the facility’s capacity to zero.
The plaintiffs are being represented by Cary of Cary Law Office in Charleston. Cary previously represented other parents who sued the same daycare center in 2021. The facility denied those allegations and also filed a counterclaim against those parents accusing them of defamation on social media. An undisclosed settlement was reached in that case.
Cary also has filed lawsuits in recent weeks accusing a Hurricane day care center of abuse.
Regarding the Cross Lanes facility, the recent DoHS decision followed serious non-compliance with state child care licensure regulations, a DoHS release says.
“The action today will result in the center not being able to serve any families or children while it’s under investigation,” DoHS Secretary Cynthia Persily, Ph.D., said in a press release. “Our priority remains the protection of children, and we are taking every step necessary to uphold that commitment. We understand the significant impact this closure may have on families, and we are here to support them in finding safe, alternative child care arrangements.”
According to the release, the DoHS Bureau for Social Services found evidence of violations concerning both physical and psychological punishment of children and a failure to meet mandatory reporting and supervisory standards.
Those include subjecting a child to physical punishment, engaging in psychological punishment, failing to report serious occurrences within the required timeframe and failing to supervise teaching and support staff and to conduct regular staff meetings.
Amber Seiler is a former daycare worker at the facility who taught the three-to-four-year-old classroom. She was named as a defendant in several of the other lawsuits.
Seiler, 29, of Kenova has been charged with two counts of misdemeanor battery in addition to a felony count of battery and assault of a disabled child. She currently is being held at South Central Regional Jail on a $50,000 bond along with two $1,500 bonds for the misdemeanors. Seiler waived her preliminary hearing, and her criminal case now will go to the grand jury.
Kanawha Circuit Court case number 24-C-1206