LOUISVILLE, Ky. (WDRB) -- The mother of LaVontae Xavier Swain, the 2-year-old who died last month after being left for hours in the back of a hot van, has filed a wrongful death lawsuit against the day care responsible for the child.

The lawsuit, filed Thursday in Jefferson Circuit Court on behalf of Carless Swain, claims Lil Kings and Kings and Queen Day care centers on Terry Road failed to “account for each child as they get on” and off the day care van on April 18.

LaVontae died from hyperthermia after being left in the van for several hours by 70-year-old Jacquelin Thomas, the child’s aunt and owner of the day care.

Thomas, who has been charged with 2nd-degree manslaughter, was not named in the lawsuit. She has pleaded not guilty.

LaVontae was picked up at his home before 10 a.m. and not removed from the vehicle until about 3 p.m., according to the suit. The temperatures reached the mid-80s that day.

When Thomas arrived at Gutermuth Elementary for pickups, two children found his limp body.

The Cabinet for Health and Family Services closed the centers indefinitely. Investigators said "the staff driver verbally acknowledged having forgotten the 2-year-old child."

Police have said Thomas was "acting in her official capacity" as the day care owner when the death occurred.

At the time of LaVontae’s death, Swain did not have custody of the child. He had been in foster care.

The lawsuit is seeking unspecified monetary damages and a jury trial.

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