For tot's fatal abuse: no prison

DCF investigation slips and a detective's credibility problems help a couple get a plea deal.

By DAVID KARP

© St. Petersburg Times,
published July 7, 2001

TAMPA -- Inside the home, sheriff's deputies found the boy in his mother's arms.

The 2-year-old, David "Chino" Nieves Jr., was dead by the time authorities entered the family's mobile home in the middle of the night last year. The boy's ribs had been broken, his head was bruised, and there were red marks all over his body.

His mother had bitten him at least 32 times, bearing down hard enough to break the skin.

"If someone bit me that way," said Dr. Barry Lipton, a dental expert who examined the boy, "I would consider myself being tortured."

Despite the abuse, the boy's 23-year-old mother, Lydia Molina, and her boyfriend, Alfredo Guerrero, 28, won't serve a day in prison for causing the boy's death.

Under a deal with prosecutors, Molina was sentenced earlier this year to six months in a work release program that lets her leave jail during the day to work and two years' house arrest. Guerrero will finish about three years of an earlier prison sentence for robbery. He pleaded guilty to manslaughter, and she pleaded to aggravated child abuse.

Prosecutors never consulted the boy's father about the deal. He was stunned to learn about it.

"Basically, they got slapped on the wrist," said David Nieves, who lives in Ohio.

The outcome also surprised officials with the state's Department of Children and Families.

"When you have a child's death and a light sentence, it doesn't make any sense," said Jennifer Lima-Smith, regional counsel for DCF.

What went wrong?

Six months before the boy's death, DCF investigated an allegation of child abuse at the house but concluded that nothing was wrong.

Then, prosecutors made deals in part because one of the detectives on the case was Linda Burton, now under fire for her part in the botched Sabrina Aisenberg missing baby case.

Burton's credibility was compromised earlier this year when a federal magistrate accused her of lying in the Aisenberg case. In court records on the Nieves case, prosecutors cited Burton's presence as a factor in deciding to offer the plea deal.

"The witnesses and the elements were not there," Assistant State Attorney John Terry said. "It wasn't just Linda Burton."

"I wish she could have gotten more," he added.

Molina, the boy's mother, first got pregnant at age 13 because she didn't know about birth control, she told case workers. The father didn't stay around, and she dropped out of eighth grade in 1993.

In 1995, Molina met Nieves at a wedding, and they hit it off. Her second child, a girl, was born a year later, when Molina was 18.

In 1997, Molina was pregnant for the third time. This time, doctors told the couple that their son would be born with Cri-du-chat syndrome, caused when part of a chromosome does not form. Children born with the syndrome can't walk or speak. They communicate by making a noise that sounds like a cat's cry.

"The doctor said it would be a lot of work," Nieves said. "She was pretty sure she was ready."

Their son, David, was born on April 10, 1998, at Tampa General Hospital. They nicknamed him "Chino." He was "a beautiful little boy with a head full of black hair," Nieves said.

Even so, the child was not normal. "He never made any noise," said Benito Nieves, the boy's uncle. "When he did want something he had this little, little distant crying sound."

A year later in 1999, Nieves' cousin, Alfredo Guerrero, was released from prison after serving six years of a 10-year sentence for robbery.

Soon, Molina began seeing Guerrero, and she told Nieves to leave. Devastated, Nieves moved to Ohio to live with relatives.

"I wasn't perfect," Nieves said, "but if they care about you, you will work through it."

When Guerrero moved in, social service workers began seeing problems. A nurse suspected drug use and saw Molina yelling at the children.

Someone threw a puppy against the wall, and a family dog was put to sleep when its leg was broken. Molina also became pregnant with her fourth child.

In August 1999, child abuse workers received a report that David had a bruise on his face. But the department's investigator didn't get directions to go to the Gibsonton home for days.

Before talking to the family, he filed a report that was full of mistakes. He missed signs of increasing domestic abuse and never checked on Guerrero's criminal record, according to the agency. He didn't make a note in the file for three months. His last entry came on the day of the boy's death.

On the night of Feb. 20, 2000, Molina had gone to play bingo. Guerrero initially told detectives that he tripped on a toy and fell on the boy with his knee. He called South Bay Hospital, and they told Guerrero to bring the boy to the emergency room. He didn't.

At 1:47 a.m., the couple called 911. By the time paramedics arrived, the boy was dead.

Doctors testified that David would have lived if the parents had taken him to the hospital earlier.

Besides the bite marks, David's ribs had been broken within the last six months.

Investigators found no signs of abuse in the other children, though. They believe that David was targeted for abuse because he was physically challenged and mentally retarded.

"We wished they would have imposed a harsher sentence because it might have sent a message out to the community," said Lima-Smith of DCF.

The department has moved in court to terminate both parents' rights to the remaining children. Circuit Judge Debra Behnke is expected to rule on the matter this summer. Molina and Guerrero are both fighting the move. They want to remain parents.

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