Mom Describes Routinely Leaving Kids Alone in Tub

It was a near daily routine she had with her children, Melissa Gutierrez told the court on Monday.

She would put them in the bathtub to splash around in the running water, handpicking toys that could never plug the drain and leaving items out of reach of her 2-year-old son that are designed to stopper the water. She would leave them there to take care of tasks down the hall, occasionally calling to James, the 2-year-old, to make sure things were OK. Things were, usually, until they weren't.

On Thursday, Aug. 25, 2011, the worst that can be imagined happened.

Somehow the drain to the tub got plugged with a green washcloth. It filled up spilling, over the wall and leaking through the floor to the basement below, alerting her that something was amiss.

Gutierrez said she'd been down the hall trying to figure out what to make the boys for lunch when James indicated he wanted to get out of the tub. So, she said she prepared to bathe the boys who'd gotten messy having a Fruit Loops fight during breakfast.

She said she retrieved the stopper for the tub and the green washcloth, but, in the throes of packing to move, she was unable to find a towel in the bathroom. She said she went to the hall closet but couldn't find one in there and then headed to the basement laundry room in search of one there. It was down there, searching for a towel, that she noticed water dripping through the floor.

Sobs wracked her body as Gutierrez told of how she ran upstairs to find James standing in the back of the tub. Christian, her 8-month-old son, was floating face down in the water.

“There's not a day that goes by I don't wish I could change that day,” Gutierrez said. “It's something that eats me alive every day.”

Gutierrez took the stand for about an hour Monday afternoon, and, prodded by her attorney Anthony Sculimbrene, told the court of life with a drug-dealer father who was in and out of jail for 22 years; of becoming addicted to drugs starting with cigarettes and pot at age 9, alcohol at 10, heroin by 14 and “graduating to cocaine” by 16.

She completed only three weeks of her freshman year of high school before dropping out. She met a young man named Robert who seemed charming at the time, but walked in lockstep with her as they did drugs, stole drugs and sold drugs.

It was with him that she had her first child, a little girl named Neveah. It was because of Neveah that she tried cleaning up her life. It was because of Neveah that she got her GED.

But when Neveah was taken from her by the Department of Children, Youth and Families, her life spiraled down again.

Gutierrez told of a life that brought her back to drugs many times, of turning to a life selling her body on the streets, of a life that included tragedy. Her father was killed in a car accident just hours after she fought with him.

Her best friend, James Blackington Jr., the father of James, the man who'd helped her turn her life around yet again, died as she tried to race him to the hospital Florida after becoming extremely ill while they were stuck in bumper to bumper traffic.

Gutierrez was sentenced on Monday afternoon to 5-10 years in the state women's prison after agreeing to a plea deal struck between the state and her defense and pleading guilty to a single charge of negligent homicide. Other charges, including a manslaughter, reckless conduct and endangering the welfare of a child were dropped as part of the deal.

She can petition the court for a year to be suspended from her sentence provided she completes three courses in prison that teach her about parent, wellness and life skills. With time served of 226 days, she could be out of jail in fewer than 3 ½ years – just months before her 31^st birthday.

Sculimbrene asked Judge Diane Nicolosi to consider suspending a year for each course completed, which would have allowed Gutierrez to potentially be out of jail in little more than a year, given her time served.

Prosecutor David Tencza said the state believed 5-10 years without any years suspended was more appropriate.

“She will be out in her 30s and have her full life ahead of her, her son on the other hand does not get that chance,” Tencza said.

Before sentencing her, Nicolosi said she wanted to make sure that Gutierrez was fully aware that what she was pleading to was not what Nicolosi considered an accident. Nicolosi, who said she has three kids of her own and understands what it is like to be an exhausted mother, said that what happened to Christian was not considered an every day risk for a child; it was something preventable and that a person acts negligently when they failed to recognize a substantial risk.

“I don't want you to leave the room thinking this is something that could have happened to anyone,” Nicolosi said asking Gutierrez if she understood what she was pleading guilty to.

“I'm pleading guilty to the fact that I walked out of the bathroom and left my children unattended in a dangerous situation,” Gutierrez responded.

Nicolosi said she had no doubt in Gutierrez's sincerity in her love for her children, but that she was also taking into account Gutierrez's lengthy criminal history – which includes at least three arrests since Christian died in 2011 – and her prior conduct with her other two children, among other things.

She said the main reason she was not going with the sentence suggested by Sculimbrene had to do with Gutierrez's arrests while out on bail for Christian's death.

Earlier in her testimony, Gutierrez spoke to wanting to become a better person.

“I want to turn my life around, stop feeling bad for myself, using the fact that I've lived a horrible life as an excuse. I want to make changes, I want to do something for myself,”Gutierrez said. “If I don't turn things around, he will have died in vain and I refuse to let things happen.”

At the beginning of her testimony, she tearfully apologized to her dead son.

“I would tell him that I'm sorry and that, that it wasn't supposed to be that way it wasn't, it wasn't supposed to happen that way and that wasn't the outcome that I ever imagined to happen. And that I love him unconditionally, and if I could ever go back and take it back, go back and change it, that I would in an instant. … I hope he knows that I'm sorry, I'm so sorry … I'm so sorry. And that I love him.”

Gutierrez is serving concurrent sentences for previous charges including one for forgery, that occurred before Christian's death, Tencza said following the hearing. She has one more hearing out of Rockingham County on charges of shoplifting and possession of a controlled drug.