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Child drownings raise prosecution questions

Apr. 10, 2003

Leaving your baby alone in the bathtub while you log onto the Internet apparently isn't a crime.

Leaving your baby alone in the bathtub while you write a letter to your boyfriend apparently is.

Just who, if anybody, gets prosecuted when a child drowns isn't exactly clear in the Valley, but officials say they are increasingly scrutinizing the deaths and seeking criminal charges to hold parents responsible when they are grossly negligent.

"Parents will make mistakes and even, God forbid, sometimes horrible things happen from those mistakes. But that doesn't necessarily make it criminal," Maricopa County Attorney Rick Romley said. "It's a matter of degree.

"You look at what were the factors of the negligence. Just inattention for a brief moment, that happens. Twenty minutes writing a letter . . . that's different."

Whether to prosecute parents of drowned children is a growing debate across the Valley, with some saying authorities need to do it more to protect children. Others believe that, except in the most egregious cases, prosecution is overkill because parents already know they've made the worst mistake.

"We're protecting little babies," Romley said. "I don't apologize for it at all."

Across the Valley since 2000, four mothers have been charged in the drowning deaths of their children, and a fifth woman, a grandmother, has been charged with child abuse in a near-drowning.

'Absolute worst penalty'

"Is that really going to do anything to them?" said Druann Letter, whose son, Weston, 3, drowned in 1998 in a backyard pool. "They have the absolute worst penalty, worse than the death penalty. That person that you absolutely loved, that you kissed and hugged isn't there anymore, and it was because of something you did."

Romley said his agency is among the first in the country to ratchet up prosecution in drownings. However, in January, Tucson prosecutors charged a father with manslaughter and child abuse after the bathtub drowning of his 10-month-old daughter. And in 2001, a Tucson woman was convicted of negligence in the bathtub drowning of her 13-month-old daughter.

In the Valley just this month, Joann Dauberman, 23, was indicted in the bathtub drowning of her 13-month-old son, Raymond, while she spent 20 minutes writing a letter to her boyfriend in prison. And Francis Yates, 66, was indicted on a charge of child abuse after her toddler grandson slipped through an open door and a propped-open gate, then into a filthy pool in her back yard. He survived, but it was the second time a toddler ended up in Yates' pool, a factor that weighed heavily with prosecutors.

Since 2000, state Child Protective Services, which investigates drownings when called by police to do so, substantiated allegations of neglect in 12 Valley drowning deaths, although that ruling doesn't mean a crime was committed. In each case, CPS cited the caretaker's "failure to provide proper supervision."

"It's not about loving your kids," Assistant Phoenix Fire Chief Bob Khan said. "It's about understanding that you have an obligation to create a safe environment for them.

"There are consequences for placing a child in harm's way."

Last year, 20 children drowned in Maricopa County, including a pair of brothers who hadn't been seen for nearly an hour before they were pulled from an unfenced pool, a boy who wandered across the street and into a neighbor's pool, and a 9-month girl who was left unattended in the bathtub while her father made a phone call. Phoenix police reports say a urine sample from Leann Garcia's father tested positive for illegal drugs.

Cases to be reviewed

All three cases still need to be reviewed by prosecutors.

Romley said prosecutors have to look at each case individually and haven't drawn any strict parameters for when to seek criminal charges.

They consider such things as a history of abuse or neglect, how long the child was left alone, the caregiver's level of awareness about the potential danger and any drug or alcohol use. They also must decide if there is a reasonable likelihood of conviction.

"Criminal sanctions are very serious, and we need to be very careful about how we approach it," Romley said.

When Marissa Barrios, 15 months, drowned in a bathtub in March 2002, her father told police he left her briefly to log onto the Internet and check on his two other children. Police say that it would have taken about 10 1/2 minutes for the tub to fill and asked that the father be charged with child abuse and murder.

But Maricopa County prosecutor Maria Armijo said authorities couldn't determine an exact timeline of events. It wasn't clear how full the tub was before Marissa's father left the bathroom or how long he was on the Internet.

"It's what you can prove," she said.

Prosecutors also declined to charge Glendale parents who locked their children in a bedroom while the father was at school and the mother was sleeping. The children got out of the room, apparently by shaking the door to dislodge the latch, and Serena Carlson, 21 months, drowned in August 2001. The mother told police she had taken pain pills, a sleeping pill and psychiatric medication. About two hours passed from when the father left for school to when he returned to find Serena.

"It's just not black and white," Glendale police Detective Tom Clayton said. "It's not like somebody pulls a gun and shoots somebody. There's gray areas. There's probably some allowance for human frailty.

"If you have a parent that's vigilant, and they turn their head and something happens, we're probably all guilty of that."

Still, Clayton said prosecution is "a good step."

"If you save one child, is it worth it?" he said. "If it makes parents more aware that they could be prosecuted, it's going to make them watch their kids better. We've got to do something."

But Tim Agan, a public defender who represented Vanessa Rico when she was charged with the bathtub drowning of her daughter, questioned whether prosecution really accomplishes anything when most parents don't even realize they're endangering their child.

"Nobody did this on purpose," Agan said. "It's impossible to discourage unintentional conduct."

Focus on education

Druann Letter said a better solution would be to focus on education and helping parents get the necessary pool fences and door locks to protect their children before they drown. All parents, she said, have brief lapses in supervision when they go to the bathroom or answer a phone or tend to another child.

She never forgets that her inattention cost Weston his life.

"We live in a prison all on our own," Letter said. "The only difference is we get to go out into society every day and see what we have lost."

John Harrington, head of the Drowning Prevention Coalition of Central Arizona, said "probably all" drowning deaths are accidental, even if there is negligence. His 18-month-old son drowned in 1986 in the care of a baby-sitter.

Harrington said parents do need to "wake up." But he, like many, wrestles with the idea of prosecution.

"If given the option, I'd take prison if it could bring my son back," he said. "But it doesn't."
Reproduced with permission from:
The Arizona Republic
By Judi Villa
Copyright 2003 Arizona Republic

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