Ashley Bertino

SILVER CREEK – Twelve-year-old Mya Smith died last spring of diabetic ketoacidosis, a complication of untreated diabetes.

Chautauqua County prosecutors believe her life could have been spared if she was given basic medical care. They accuse her mother, Ashley Bertino, of having a “depraved indifference to human life” and have charged her with second-degree murder.

On Thursday, a preliminary hearing was held in Hanover Town Court before Acting Hanover Town Justice Christopher Penfold.

“The purpose of a preliminary hearing is just for the local judge to determine whether there’s reasonable cause to believe the defendant committed the crime that she’s accused of,” District Attorney Jason Schmidt explained.

Six people testified in court over a six-hour period with more witnesses scheduled to testify Friday.

Bertino was in Hanover Town Court with her hands and legs shackled. She wore gray and white stripes and a brown coat with “inmate” stamped on the back. Before the hearing began, she was bouncing her right leg. Most of the day she appeared motionless, although she did have a tissue in her hand.

Assistant Public Defender Andrew Brautigam represented Bertino, while Schmidt and First Assistant District Attorney Jeffrey DiPalma handled the case for the prosecution.

EMOTIONAL TESTIMONIES

One of the first people to testify in the preliminary hearing Thursday was Colleen Smith, Mya’s bus driver.

Smith had Mya, along with Mya’s two siblings, on her bus route for the last seven or eight years.

Smith noted she and Mya became very close and Mya would sit right behind Smith. “She called me her bestie,” Smith said, clutching a tissue as tears continued to well up in her eyes.

Smith said all three of the children often appeared unkempt. Mya’s brother would sometimes get on the bus without any socks on and had holes in his shoes, even in the winter. Neither Mya or her sister looked like their hair had been washed. All three children struggled with odor, as if they weren’t bathing.

Smith said one time Mya was sent to school wearing a bathing suit “because she didn’t have any clean clothes.”

Smith said over the years she had provided various care packages to Mya, including shampoo and other body soaps.

She also often would provide Mya water bottles, as she said she was very thirsty. Smith said sometimes Mya would drink two full bottles while on the bus.

According to Smith, since 2019 bus drivers are considered “mandated reporters” when they suspect abuse.

Smith said she did report to the head school nurse at Silver Creek Central School about Mya’s condition.

Mya died on April 29. According to Smith, the two weeks before her death she only came to school once or twice.

Smith said Mya’s siblings told her Mya was “really sick” and that she “can’t get out of bed.”

After Smith learned of Mya’s passing, she went to a viewing. Smith alleged she saw Bertino “laughing” and “making fun” of Mya’s appearance in the casket in regards to her late daughter’s hair and body.

During cross examination, Brautigam asked Smith if she’s ever been to a funeral before where people were laughing in memory of a loved one, as a reflection of compassion, to which she said she had.

Bertino’s neighbor Jill Meyer testified following Smith.

Meyer said she rarely spoke to Bertino, but noted her son and Bertino’s son were best friends, so she was familiar with the family.

She said the children often appeared disheveled, wearing clothes that didn’t fit, and having mismatched shoes.

Meyer said Mya’s hair and her sister’s hair often had knots, saying it appeared their hair was rarely brushed or washed.

The day Mya died, Meyer said Mya’s brother was crying and pacing saying that he didn’t want his sister to die.

Meyer said the brother told her that he had been taking care of Mya all day long. He tried sprinkling water in his sister’s eyes and asked his mother to call 911 but she refused, saying that Mya “was being dramatic.”

Amy Bartell, who was the Dean of Students at Silver Creek Central School testified as well. Like Meyer and Smith, Bartell said Mya didn’t wear properly fitted clothing, often had knots in her hair and had an odor. “Mya would smell like urine,” Bartell said.

Bartell was able to develop a relationship with Bertino, noting the two of them emailed and texted back and forth.

Bertino would protest if Mya wanted to see a school nurse and was upset that Mya’s gym teacher wanted her to get a note from a doctor about why she wasn’t able to participate in gym class.

Bartell noted Mya was a large girl for her age and was often hungry, so she would provide food to her if possible.

OTHER TESTIMONIES

Chautauqua County Chief Medical Examiner Dr. Michael Faulk testified at the preliminary hearing. He explained how diabetes can turn into diabetic ketoacidosis if untreated. He said some of the symptoms include a person feeling extremely thirsty and vomiting.

Faulk noted that Mya should have been showing symptoms of diabetes for weeks or months and that any medical professional should have been able to identify her as a diabetic.

Faulk ordered Mya’s body be sent to the Erie County Medical Examiner’s Office where a determination was made that Mya’s death would be classified a homicide.

Desire Vara was the coroner who responded to the scene and testified that Mya was declared dead at Brooks Memorial Hospital about 15 minutes after arrival, but had received about 40 minutes of CPR before the declaration was made.

Juliana Post with Silver Creek Pediatric also testified Bertino had scheduled an appointment for Mya to be seen but gave no indication that there was anything seriously wrong, other than vomiting.

Post said she told Bertino to take her to a hospital if Mya’s condition worsened. Mya passed away before being seen at Silver Creek Pediatric.

Penfold is expected to make a ruling following the closing of the preliminary hearing Friday, if there’s enough evidence to continue to keep the charges against Bertino in place.