Charge against woman dropped

From: Modesto Bee, CA - Mar 31, 2004

By MIKE CONWAY
BEE STAFF WRITER

MERCED -- Prosecutors on Tuesday dropped a child endangerment charge against the woman who gave birth Nov. 14 in the back yard of a Livingston home.

Police and paramedics said they found the baby choking from tissue jammed in her mouth, and suffering from hypothermia. The baby, named Hope, has been in foster care since her birth.

Authorities said 24-year-old Juliana Martinez Dionicio, who cannot speak or hear, crawled into a dog kennel near her father's home and gave birth. One of the dog's owners came out to feed the animal and discovered Dionicio and the baby. She was lying against a tree, and the baby was nearby, authorities said.

Prosecutors contended that Dionicio was trying to harm her newborn with the tissue, but an expert for the defense felt otherwise -- leading to the Merced County district attorney's decision to drop the case.

Communicating with Dionicio has been difficult throughout the court process, at times requiring as many as four interpreters to go from English to Spanish to Trique, the language of Dionicio's native village in Oaxaca, Mexico, and from Trique to American Sign Language and the improvised sign language that Dionicio uses. She cannot read or write in any language.

During one court session, Dionicio said she put tissue in her baby's mouth to clean out blood and mucus, a practice that she had seen in her homeland.

Attorney Jeffrey A. Tenenbaum, who is representing Dionicio in her effort to regain custody of her daughter, hired Dr. Donald Carter, a Merced ear, nose and throat specialist, to prepare a report on what Dionicio might have been doing with the tissue.

"(Carter) indicated he would contest that she was trying to kill her baby," Chief Deputy District Attorney Larry Morse II said during a hearing in Superior Court.

Judge Frank Dougherty said he read the doctor's report and agreed to dismiss the case.

Morse said: "If we went to trial, we feel there would be conflicting medical testimony."

In order to go ahead with the case, the district attorney's office must believe it has a strong chance of convincing a jury, Morse said.

"We are not convinced we have a likelihood of conviction. It is unclear what she was doing with the tissue paper."

Public Defender Wayne Eisenhart, who represented Dionicio in the criminal case, said communication difficulties presented "a major impediment to continued prosecution."

She could not go to trial until she understood her constitutional rights, he said, a process that could have taken years and involved lengthy sessions to teach her sign language.

"I think the district attorney made a responsible judgment in this case regarding the human truths involved with the case," Eisenhart said.

Dionicio's father, Pedro Martinez Lopez, served as her guardian during the case. Through interpreters, he said he supported his daughter.

"While the courts can't decide if she did it, I have to be on her side," he said.

Livingston Police Chief Bill Eldridge said: "We don't have a problem with the outcome at all. Our issue was the baby's safety and the future of the child.

"From what I understand, the baby will be put up for adoption," the police chief said. "I think with time and education, this woman could be a good mother."

Tenenbaum said he could not comment on the custody case.

Lopez said the family plans to return to court Sept. 29 to pursue custody of Hope.

Bee staff writer Mike Conway can be reached at 381-0208 or mconway@modbee.com.

Copyright © 2004 The Modesto Bee.