Child's cruise ship death raises question: When should caregivers be charged?

A grandfather's arrest after a toddler in his care plummeted to her death off a cruise ship highlights the intricacies of negligence cases, experts say.

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By Elizabeth Chuck

Chloe Wiegand's family has no doubt her death was a horrific accident. They harbor no blame against her grandfather, Salvatore "Sam" Anello, who was with the toddler when she fell out of an 11th story window on a Royal Caribbean cruise in July.

But prosecutors — who on Monday arrested Anello on charges of negligent homicide — see the case differently. The charges, experts say, highlight a legal gray area: Should caregivers be held criminally responsible if a tragedy that was truly accidental resulted in the loss of a child's life?

The answer varies, not only based on the facts of the case, but on who is deciding the charges.

Legal experts say prosecutors rely on a specific set of criteria for determining whether they can pursue charges in a child's death.

In intentional homicides, they must have evidence that parents or other caregivers knew they were placing the child in danger or have evidence that they meant to harm their kids — for instance, if a parent beats a child to death, said Daniel Blinka, a Marquette University Law School professor.

Filing lesser charges against a caregiver, such as charges of negligence or recklessness, can be less clear-cut because they "don't require intent or knowledge that what you're going to do is going to kill or severely injure a child," Blinka said. Prosecutors only need to determine that the caregiver veered from what another reasonable person would do under the same circumstances, resulting in the child's death.

Anello had been in the children's play area of the cruise ship with Chloe when he says he hoisted her up to a window that he presumed was closed.

Chloe loved to bang on glass on the side of the rink at her brother's hockey games, so Anello lifted her up to do the same on the ship, expecting the window to be closed.

Chloe's mother, Kimberly Wiegand, said the Indiana family is pursuing legal action against Royal Caribbean, claiming it created a safety hazard by having an open window so many stories up; Royal Caribbean has said it was saddened by the incident and is helping authorities into the investigation. The Puerto Rican prosecutors who arrested Anello on Monday are not commenting on the case, citing the ongoing investigation.

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But Blinka said the prosecutors may be thinking, "We're willing to accept your statement that you didn't know about the glass, but any reasonable person in your situation would have been aware of that fact and would never have taken the risk of holding up a young child."

"With cases like this, you stand in front of the jury and make it very clear that 'look, we are not saying grandpa intended to harm this child, never mind kill the child. What we are saying is what he did is so careless that no one in his position had any business lifting this child up,'" Blinka said. "Essentially the issue becomes grandpa did something that was both tragic and stupid and the issue is whether that stupid act that resulted in a child's death should result in his criminal conviction."

Jim Cohen, an associate professor of law at Fordham University, echoed that.

"A prosecutor is going to ask the question: Why didn't this grandfather know that there was no glass there? What many of us often do in such a circumstance is we put our hand out to touch the glass," he said.

Others said the charges went too far.

In the case of children — who by nature are helpless, vulnerable and dependent upon their caregivers, said Peter Scharf, a public health criminologist at the Louisiana State University School of Public Health — there is often a desire to "blame someone, even if it's not legally appropriate."

"It's double devastation: the loss of a child, and now this."

"You have to know a little more about the case to really get inside the head of the prosecutors, but on the face of it, it seems like a problematic decision," Scharf said. "It's double devastation: the loss of a child, and now this."

Deadly accidents under the careful watch of loving caregivers are rare, but they do happen. A more frequent example: A parent who falsely remembers dropping their child off at daycare, unintentionally leaving the child to die strapped in their car seats as the temperature inside the vehicle rises.

Since 1990, more than 940 children have died in hot cars, according to KidsAndCars.org, a nonprofit dedicated to saving the lives of children and pets in and around vehicles. About half the time, parents or caregivers are charged in the deaths, said Amber Rollins, director of KidsAndCars.org, and 32 percent are convicted.

There is little consistency from case to case: Three years ago, in Mississippi, two nearly identical instances of parents accidentally leaving their children to die in hot cars resulted in two different outcomes. One grand jury declined to charge the first parent, a mother who forgot to drop her 2-year-old off at daycare, while a grand jury less than 100 miles away indicted the second parent, a father who forgot to drop off his eight-month-old off at daycare, for manslaughter.

"There's no rhyme or reason to why or why not somebody is charged," said Rollins, adding that for caregivers, facing charges after accidentally leaving a child to die feels like "tragedy upon tragedy."

Even an investigation with no charges can be torturous for families who have lost children due to accidents, said Alison Jacobson, CEO of First Candle, a national nonprofit that works to prevent accidental suffocation and sudden infant death syndrome, or SIDS, in babies and provides bereavement support to families.

She said there are no statistics on how often charges are filed when a baby dies in their sleep — which could be from something as benign-seeming as falling asleep on a parents' chest. But it is standard to have an investigation into the baby's death, and "that investigation in and of itself is devastating to the parents because they already feel guilty," she said.

In an interview with the "Today" show, Chloe's father, Alan Wiegand, described her as her grandfather's "best friend." He described Anello as "very, very distraught."

"We'll never forget her,'' Wiegand said of Chloe. "She's part of our soul that's not there anymore."