Girl, 7, incapable of killing infant, Pa. judge says

Police said they still believe the girl caused the baby’s violent death.

PITTSBURGH (AP) — A 7-year-old girl was not capable of the uncontrolled rage and physical force necessary to kill an infant who, police believe, was twice slammed to the floor at a Pittsburgh day care center, a family court judge said.

Allegheny County Judge Kim Berkeley Clark explained her reasoning to The Associated Press on Friday, a day after ruling the girl should remain in foster care and not in county custody as requested by the district attorney.

The judge based her decision on “the extent and the severity of the injuries” suffered by 10-month-old Marcia Poston, who died June 6 at Bray’s Family Day Care in Pittsburgh, which has since closed.

Evidence at a three-day, closed-door dependency hearing showed that “under some circumstances, a child of 7 could do this,” Clark said.

“But the rage that was necessary, and the force, it would have to be a child with some very significant behavior issues, and this child did not have those problems,” she said.

Police have said the 7-year-old — the granddaughter of the woman who ran the day care center — has anger-management issues and that she told them she dropped or threw the infant onto a carpeted concrete floor.

Police Lt. Daniel Herrmann, the lead investigator, said officers are confident the girl killed the infant.

“Based on our investigation at the time and the evidence at the time, we believe the 7-year-old was the person responsible for the injuries,” Herrmann said Friday.

But the district attorney’s office issued a brief statement Friday indicating the hearing resulted in “another theory” on Marcia’s death. The statement said the theory will be explored, but did not elaborate.

The Allegheny County Medical Examiner ruled the death a homicide caused by severe head trauma, including skull fractures.

India Thomas, 29, the mother of the 7-year-old, said her daughter is innocent.

“She did not do it. We don’t know who did,” Thomas told the Pittsburgh Tribune-Review.

Meanwhile, the infant’s parents, DeJuan Poston and Rhonda Moore, have hired an attorney and say they have a copy of the autopsy report but won’t discuss it. Moore picketed outside the hearing earlier in the week, holding a picture of her daughter above her head.

The Associated Press could not immediately locate the parents for comment Friday. But Moore and Poston have said they want the day care’s owner, who wasn’t home at the time, or the 20-year-old woman on duty to be charged.

Police said the worker was watching five children, including Marcia and the 7-year-old, in a basement playroom when she went upstairs to change another child’s diaper. She heard a commotion and called 911 after returning to find the infant — who had been in a child seat — lying on a small sofa not breathing.

Herrmann said the worker took a polygraph test, and police don’t believe she harmed the infant.

Police and District Attorney Stephen Zappala Jr. will not charge the 7-year-old because of her age. The state’s homicide statute doesn’t have an age limit, but an attorney would almost certainly be granted permission to move the case to juvenile court, where children under 10 cannot be tried, Zappala spokesman Mike Manko said.

Zappala wanted Clark to declare the girl “dependent” so she would have to undergo psychiatric and other court-supervised counseling. Instead, her custody status will be re-evaluated in three months, the judge said.