Special Report: Protecting Children in Daycare

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VIRGINIA BEACH, Va. (WAVY) -- Prosecutors are using Joseph's Law to charge Marlene Rice with a class four felony after a four-month-old died in her unlicensed home daycare. It's something the family of Joseph Allen, for whom the law is named, never wanted to see happen.

Woman indicted on 10 counts of running an unlicensed day care

With big blue eyes and cheeks like a cherub, Joseph Allen earned his angel wings way too soon.

"He was very sweet and very calm... He was perfect," his grandmother LuAnn Allen told 10 On Your Side.

She and her husband, Herman Allen, could never have imagined that just a month after his first birthday, Joseph would be ripped away from them forever.

"Joseph died as a result of a fire at the childcare provider's home," Herman explained.

On the day of the fire in Chesterfield, Laurie Underwood was caring for eight children in her home, six of whom were under the age of two.

"She repeatedly told them she was only keeping seven children there that day and they were all out of the house. That turned out not to be the case," Herman said.

Forty-five minutes later, firefighters went back inside and found little Joseph strapped into an upside down car seat in an upstairs bedroom. His grandparents told 10 On Your Side the home had no working smoke detectors, no fire extinguishers and no list of the children in her care that day.

Underwood had cared for Joseph for 10 months, but she didn't remember he was there. Under then-current law, the only thing prosecutors could charge her with was a misdemeanor for not having a license to run a daycare.

LuAnn said of the sentencing, "In her case, she was given eight months. Of those, she served four. We, however, are serving a lifetime without our grandson."

The Allens decided to serve their sentence fighting for other children. That's when they teamed up with Delegate Duan Hester of Norfolk.

"It makes no sense that it would just be a misdemeanor," Hester said.

She worked with the Allens and Commonwealth's Attorneys to craft legislation that will hold daycare providers accountable. The law went into effect in July 2016. The very next month, a four-month-old died in Marlene Rice's home in Virginia Beach.

Delegate Hester told WAVY.com, "I hoped that it would never be used. That was my hope, that it would deter enough people... 'I know it's a felony, so I'm not going to put myself in that situation.' But here we are."

Police found 17 children in Rice's home that day. The max allowed by law without a license on that day was five. It is now four. Using Joseph's Law, prosecutors charged Rice with a class four felony, which carries two to 10 years and up to $100,000 in fines.

"We were devastated, because we don't want other families to have to go through what our family continues to go through," LuAnn said.

And so their crusade continues: To educate childcare providers and parents in order to keep more little angels on earth as long as possible.

Delegate Hester told 10 On Your Side they may need to tweak the law once they've seen it work through the court system. Meantime, Child Care Aware provides help for parents looking for reliable, safe daycare.

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