Murky Waters

The drowning death of a child is always a tragedy. But when does it become a crime? County prosecutors are wading into a dangerous debate.

• Two brothers, ages 2 and 4, who drowned in their grandmother's west Phoenix pool, where the water was so green and murky that firefighters didn't know the second brother was submerged until minutes after they pulled out the first. One of the boys had been missing for about 20 minutes.

• A 3-year-old north Valley boy who wandered through an open gate, fell into his grandparents' swimming pool, and drowned. He went unnoticed for an hour.

• A 9-month-old boy who, just last month, drowned in a pail that held about five inches of dirty water. He'd been submerged for several minutes.

David Terrill
Peoria mother Janis Perry pleaded guilty last week to negligent homicide in the bathtub drowning of her 19-month-old daughter.
Peoria mother Janis Perry pleaded guilty last week to negligent homicide in the bathtub drowning of her 19-month-old daughter.

• A 14-month-old west Phoenix infant who crawled past a patio door and fell into an unfenced pool at an unlicensed day-care home. The toddler was one of 11 children at the residence, and had been underwater for about five minutes before another child spotted her.

There also have been numerous cases of near-drownings, in which children have suffered serious brain damage and lesser injuries.

In fact, the Arizona Child Fatality Review Team recently concluded that, of the 187 child-drowning deaths statewide from 1995 to 1999, 86 percent could have been prevented. About nine of 10 child drownings occurred because of poor supervision by adult caretakers and, in cases involving residential pools, the lack of adequate barriers between home and water.

If a child drowns in a pool because of a caretaker's inattentiveness, or because of a faulty or nonexistent pool fence, doesn't that meet the definition of child abuse under Arizona law?

According to the law: "Any person who causes a child to suffer physical injury or abuse . . . or permits a child to be placed in a situation where the person or health of a child is endangered is guilty of [felony child abuse]."

Dr. Mary Rimsza, one of the state's leading experts in child abuse, suggests Rick Romley has targeted poor single mothers for prosecution, while letting people with financial resources go free.

"If you're going to prosecute only a small number of these preventable deaths, then how do you make sure it's not being done with bias toward those of a lower socioeconomic status, or their ethnicity?" says Rimsza, who chairs the Arizona Child Fatality Review Team, a statewide task force that analyzes every child death. "I'm just not sure of the logic that they are using in deciding who to prosecute.

"We haven't seen one prosecution for criminal negligence of someone who failed to adequately supervise a child in a pool. Is this because only the rich have pools? Are these drowning deaths any less negligent than those that occurred in a bathtub? I'm concerned that, if the laws are interpreted liberally, there will be an awful lot of parents who will be facing prosecution."

Romley spokesperson Bill FitzGerald bristles at the notion that the office targets anyone on the basis of socioeconomic status or otherwise.

"Mary Rimsza is absolutely wrong about that," FitzGerald says. "We take each case as it is submitted, and look at the individual nuances that each case has. If we think it is a case that is solid, we go for it. That's it."

Adds Romley, "We understand that parents make mistakes. There has to be some aggravating factor. You consciously put the child in danger. The negligence has to be significant. It has to be more than just having made a mistake. They have to be aware that it could cause serious injury or death."


During the late 1990s, Tim Ryan won a reputation as a fierce advocate for children in his capacity as a prosecutor with the Maricopa County Attorney's Office.

As a member of the Family Violence Unit, Ryan faced the worst of the worst at trial -- generally parents and guardians who had pummeled, burned, stabbed, scalded or murdered the young children in their care.

In 1997, he won a first-degree-murder conviction in the horrific case of Brian E. Anderson, a Mesa man who had beaten his 4-year-old stepson, then held him underwater until the boy drowned. One key piece of evidence was a telltale handprint on the victim's face. Though Ryan sought the death penalty, a judge sentenced Anderson to life in prison.

Now in private practice, Ryan says he doesn't understand why Rick Romley's office is set on prosecuting cases like Vanessa Rico and Janis Perry.

"I know that Rick has always taken a heightened interest in seeing that every child death is properly investigated and reviewed," Ryan says. "But are they changing the standard for criminal prosecution in a way that will allow the office to be perceived as focusing on minorities and poor women?"

Ryan says most senior prosecutors during his tenure balked at prosecuting caretakers for what seemed to be accidental, if deadly, lapses in judgment: "I remember the [East Valley] grandmother who left her grandson in the car. She was helping her boyfriend run a business, and also was taking care of her daughter's kid. She was just so busy that she left the baby in the car, and he roasted to death -- a horrible death.

"Our Incident Review Board [senior attorneys and supervisors] concluded that she was a loving person who just screwed up, and that a jury would never convict her because her appearance was so genuine, and she was inconsolable."

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