The drowning death of Parker Berry, age 3, of Hyde Park was a tragedy, but there was no crime, says Scott Williams, the Washington County state’s attorney.
Parker wandered away last Feb. 11 from his day care group at Elephant in the Field Holistic Education and Childcare in Waterbury Center. He fell into the partially frozen Thatcher Brook and drowned.
Williams and other officials have spent months investigating the case and collecting evidence.
“Based on evidence and information that we have received and reviewed up to now, I do not anticipate criminal charges being filed,” Williams said in a statement. “I have determined that none of the actions or inactions of adults involved with this terribly sad incident qualify as demonstrating a criminal mental state, including criminal recklessness or negligence.”
Williams told the Record that, while the child’s death was tragic, he could find no evidence of criminal negligence on the part of Noah Fishman and Marlena Tucker-Fishman, owners of the Elephant in the Field day care center off Guptil Road.
In July, Williams told VTDigger he “determined that criminal charges are not called for” against a 28-year-old para-educator who was in charge of Parker the day he drowned.
Staff members at Elephant in the Field did not notice the child was missing until a family member came to pick him up. A frantic search ensued.
Staff members found the boy partially submerged in the frigid waters. He wasn’t breathing, and his heart had stopped.
Rescuers performed CPR to keep the boy alive until he could be taken to the hospital. He went first to Central Vermont Medical Center, then to University of Vermont Medical Center, where he died.
In July, Williams said the para-educator was outside with eight children and another adult. That adult left, leaving the para-educator alone with all the children. The para-educator thought Parker was with the other adult.
The boy was unaccounted for for less than 30 minutes, but that was enough time for the 3-year-old to wander into the water and drown.
“There are those who feel that if a child dies there must be criminal liability. I don’t think that way,” Williams said in July.
Since then, investigators have focused on whether the day care operation was somehow negligent. The answer is no.
After Parker died, the state Department for Children and Families immediately suspended Elephant in the Field’s child care license while the incident was investigated. In July, the state agency permanently revoked the center’s license to care for children.
Reeva Murphy, deputy commissioner of the agency’s child development division, said the center’s staff was not properly watching the children while outside, and Tucker-Fishman was caring for more children than her license allowed.
Williams said Tuesday the investigation was thorough.
“I am aware that the Department for Children and Families has carried out its duties relative to child safety and made regulatory and licensing findings and taken action based on those findings,” Williams said in a statement.
Elephant in the Field is closed, and the state is taking steps to prevent similar tragedies in the future.
Children should be safe while at day care, Williams said, but they should still be able to play.
As a father, “I love that my kids have been able to go to child care facilities all over central Vermont where they’re not stopped from being kids,” Williams said. “Circumstances definitely could have been different,” but in his professional opinion, nothing illegal happened that day.
Williams said he spoke with Parker’s mother, and though he doesn’t want to speak for her, he thinks she was satisfied with his decision to not pursue charges.