Nochild sentence overruled

Drug addict mom wins appeal of judge's order

By Lee Quarnstrom
Mercury News Staff Writer

After her son and two other boys burned to death when the Christmas tree in
a Salinas Valley home burst into flames two years ago, Gelenda Ballance
Bosley was found guilty of manslaughter and child endangerment and ordered
by a judge to have no more children until she conquered her drug habit.

But now the state Court of Appeal has overturned that unusual term of
Bosley's probation, saying the sentence by Monterey County Judge John
Phillips ``indisputably infringes on the fundamental constitutional right
to privacy on childbearing and reproductive matters.''

Bosley, then 25, was arrested after a Jan. 13, 1995, fire at her mother's
home in Greenfield. Authorities said the woman was sleeping off a crack
cocaine high while her children and some friends played with matches near a
driedout Christmas tree.

As Bosley slept, court documents indicated, one of her children found lamp
oil and doused the Christmas tree. The child then used matches to ``fire up
the tree . . . because she was mad at her grandmother for not picking her
up at school and leaving them home alone'' with Bosley.

When the blaze broke out, some of the older children wakened their mother,
who grabbed her 5monthold son, Marcos, but dropped him in the burning
structure as she made her escape. The infant was found dead in the ashes,
along with two young relatives, Willie Williams Jr., 2, and Jimmy Ballance, 3.

A jury convicted Bosley of three counts of involuntary manslaughter and
seven counts of felony child endangerment.

Phillips placed Bosley on probation. But he noted that she had previously
given birth to cocaineaddicted babies and ordered her not to conceive any
children during her fiveyear probation unless she had overcome her drug
habit. Were she to give birth to another crackaddicted youngster, the
judge said, he would send her to prison for 11 years.

``You have no business having any more children,'' the judge admonished
Bosley. ``You have to work on your drug problem.''

Last week in San Jose, the 6th District Court of Appeal found that there
was sufficient evidence presented at trial to convict Bosley of criminal
negligence.

But a threejudge panel found that the order that Bosley not conceive any
children during her probation was onerous.

``A probation condition which burdens a fundamental constitutional right is
permissible where it is reasonably necessary to serve the purposes of
probation,'' the appellate judges ruled. They found, however, that ``the
probation condition under attack here was intended to prevent injury to an
unborn child not yet conceived.''

While the condition had a ``salutary purpose'' to prevent Bosley from
giving birth to more drugaddicted babies, the court ruled, that purpose
``can adequately be served by alternative restrictions'' less harmful to
the woman's ``fundamental right to procreate.''

The ruling is moot, according to Monterey County authorities, who said
Bosley was on probation for awhile but was later sent to prison in another
criminal matter.

Meanwhile, a Monterey County deputy district attorney said Tuesday that her
office would have no comment on the decision. Marie Aronson said the office
had not yet received a copy of the appellate court ruling.