Berry Patch Kellyville Ridge childcare centre and boss Helen Jacobs found guilty

The boss of a Sydney preschool has been found guilty of failing to protect children from harm, following an investigation after a baby was found unresponsive and later pronounced dead in hospital.

Anet Eyvazians with her late daughter Arianna, who died at The Berry Patch Preschool.

The boss of a Kellyville Ridge childcare centre where a baby was found unresponsive before being pronounced dead in hospital has been found guilty of failing to protect children from harm.

At Downing Centre Local Court on Wednesday, The Berry Patch Preschool owner Helen Jacobs and the facility were fined more than $140,000 combined.

A magistrate slammed the Education Department for condoning the centre’s practices of viewing vulnerable children in cots via CCTV.

Jacobs was found guilty of six charges of failing to protect children from harm and inadequately supervising children on three occasions in 2018.

A verdict against the centre, which faced 10 criminal charges, was also delivered. It was guilty of all but three charges.

Jacobs, 45, pleaded not guilty to the charges which were laid after an investigation following the death of Arianna Maragol on August 24, 2018.

The charges included three counts of not adequately supervising children in care of service. They did not relate to responsibility for the baby’s death.

The November hearing was the second after a five-day hearing was at court in March 2021.

This month’s hearing underlined the “inappropriate’’ reliance on staff to use CCTV footage to monitor babies in cots.

Anet Eyvazians and Jozef Maragol with their daughter Maragol.

On the day of her death, Arianna, who had been under Berry Patch’s care for eight months, was not checked for three hours in her cot.

Magistrate David Price delivered a scathing assessment of Berry Patch’s cot checks ahead of the tragedy.

“It’s my view that the proprietors of the centre from Ms Jacobs and (director Melinda) Brown, right to the new staff … and the young staff, it appears to me they genuinely had the interest of the children at heart,’’ he said.

“I believe they were decent, hardworking people, that they did what they genuinely could to look after the children in their care.”

However, he said a tragedy occurred on August 24 and the centre failed to supervise children adequately.

The court heard how there was ambiguity among staff about checking infants in cots.

“Some staff appear to be more diligent in ensuring they physically went into the room at approximately the 10-minute mark or the 15-minute mark … and others seem to be more laissez-faire in terms of physical checks of children in the room,’’ Mr Price said.

The NSW Education Department, which prosecuted the case, also came under fire from the magistrate after the court heard how it observed workers viewing babies on monitors and deemed it appropriate.

“In my view … those people should be ashamed of themselves,’’ he said.

Helen Jacobs (front) leaves Downing Centre Local Court with Berry Patch director Melinda Brown (back) on Wednesday. Ms Brown testified but was not charged and is not accused of any wrongdoing.

Mr Price also criticised the grainy footage and inability to see children clearly from the monitors.

He said a person watching the screen “would not be able to reasonably, adequately or appropriately ascertain the true position of the child in terms of their welfare from their image on that screen’’.

He highlighted long gaps of staff failing to check on babies, who were all aged under two, in the cot rooms, and it was “totally inappropriate” for the “reliance to be left on CCTV footage”.

Ahead of the verdict, defence barrister Brendan Searson told the court during closing submissions that Arianna and other children could be heard snoring on the monitor.

He said staff were trained adequately.

“The question isn’t if the horse drank. The question is was it led to the water?”

Anet Eyvazians with her daughter Maragol, who died four months after her first birthday.

Mr Searson told the court there was no evidence-based research that leaving babies in cots for two hours posed a risk to them when they had a safe cot with a safe mattress in a safe environment.

Mr Searson said since Arianna’s death a worker was always inside the cot room watching children sleep. The centre had also employed a compliance worker and two operations managers.

Mr Price convicted Jacobs and Berry Patch, and fined them $21,000 and $124,000 respectively.

“There are numerous childcare centres in NSW and it’s my view the courts need to send a clear and consistent message to the people and corporations that operate childcare centres that you have to comply strictly with the requirements of the law,’’ he said.

The court heard how legal fees would be more than $197,000 with Berry Patch needing to foot 80 per cent of the bill and Jacobs would pay the remaining costs.

After learning of the guilty verdict, Arianna’s overwhelmed father, Jozef Maragol, broke down in tears.

“This is such a relief,’’ he said. “I was so anxious today. Praise God. That is great. Praise God for his miracle.’’