Portsmouth father not charged for leaving child in hot car

PORTSMOUTH

A father's tragic mistake was negligent but not criminal and so he won't be charged in the July overheating death of his 2-year-old son he forgot in a parked SUV in front of their house, the city's prosecutor has decided.

Commonwealth's Attorney Earle Mobley said three months of police investigation uncovered no evidence that Andrew W. Culpepper knowingly left his sleeping toddler, Andrew Stephen Culpepper, strapped in a child safety seat in the back seat. That means he didn't have the reckless intent that statutes and past court decisions demand for a manslaughter conviction, the prosecutor said Thursday.

"I just think it would be wrong to charge him, knowing what I know about the case, and what I know about the law," Mobley said.

The state medical examiner's office concluded that Andrew Stephen Culpepper died of accidental hyperthermia the afternoon of July 3, when outside temperatures reached at least 93 degrees.

As of Wednesday, there were 38 hot-car deaths across the United States this year. Studies of such hot-car deaths show a wide disparity in how they're dealt with, as law enforcement officials consider a range of factors in a climate of unimaginable grief. The circumstances are key.

Police and Mobley said Culpepper, 40, picked up Andrew from the boy's paternal grandparents' home in Suffolk after a workday with the Hampton Roads Sanitation District that began at 4:30 a.m.

Culpepper normally didn't pick up the boy, Mobley said. Culpepper also had been taking medication for a spider bite that tired him, said Warren Kozak, Culpepper's lawyer.

The ride home to Glensheallah took 15 to 20 minutes. After arriving in the 100 block of Tyler Crescent East at midafternoon, the father didn't see or hear the dozing boy, went inside and fell asleep on a couch, Mobley said. The boy's mother - Culpepper's fiancee - and a daughter also were home.

Not until three hours later, when the daughter awoke him about 6:30 p.m. asking where the boy was, did Culpepper realize what happened, ran to the Chevrolet Blazer and found him unresponsive. He started CPR, but arriving rescue workers pronounced the boy dead.

"That troubles me," Mobley said. "Troubles anybody. How do you leave your child in the car?"

Mobley made his decision based on the police report, a 3-inch binder of interviews, medical records and other materials, which was completed this week, he said. Culpepper's attorney called the decision appropriate. "Mr. Culpepper and his fiancee are certainly sad about it all," Kozak said. "And they'd certainly undo it if they could."

A charge of manslaughter - unintentionally killing someone through recklessness - isn't unusual in such cases.

A week after Andrew 's death, Fairfax County officials charged a father with manslaughter, even as he was hospitalized after collapsing over his 21-month-old son's death in a vehicle outside his workplace, according to The Washington Post. A grand jury indicted him two weeks later, and he's awaiting a Dec. 15 trial.

Still, such charges are far from a given. Sometimes the public opposes prosecution, arguing that the caregivers have suffered enough.

In at least six of the 10 Virginia hot-car child death cases from 1998 through 2007, caregivers were charged with murder or manslaughter, according to records kept by Jan Null, a San Francisco meteorology professor who tracks such deaths nationwide.

Those charged included a Navy seaman in Virginia Beach court-martialed and sentenced in 2004 to nine years imprisonment on manslaughter and other counts. At least three others also received time, including a father ordered to spend the next seven birthdays of his dead daughter in jail, along with performing community service and holding a blood drive in her name. One was found not guilty.

One of the 10 was charged with misdemeanor child neglect and was eventually sentenced to community service, Null's records show. Two weren't charged at all. One outcome wasn't known.

In a 2000 case mirroring the one facing Mobley, Hampton's prosecutor similarly declined to prosecute a NASA engineer who forgot to drop off his 9-month-old son at day care and went to work, leaving the boy in his vehicle all day. By contrast, the Virginia Beach seaman who drew a prison term intentionally left her 11-month-old son in her car while on duty.

Twelve North Carolina incidents that left 14 children dead in that same time resulted in at least six involuntary manslaughter charges. Several caretakers weren't charged; one was acquitted and others got suspended sentences or probation, according to sentencing results that Null found.

Some hot-car cases don't involve a caregiver forgetting a child, such as the June 27 incident in Manns Harbor, N.C. Two sisters, ages 18 months and 2-1/2 years, died after they climbed unseen into a neighbor's car and apparently couldn't get out. On Tuesday, the local prosecutor said the facts didn't sustain criminal charges against the mother who was watching the children.

Officials who follow such incidents say police and prosecutors must, as in all cases, apply their state's laws to the facts to determine whether what happened rises to the level of a crime.

"What is this? Is this accidental? Is this negligent? Is this reckless?" said Mary Sawicki, senior attorney with the National Center for Prosecution of Child Abuse, in Alexandria. "It's really case-specific."

Did the parent or baby sitter know the child was still in the car? Did they believe it was OK to leave them for a short while? How hot was it out? Did the caregiver have a history of abuse or neglect?

"As a prosecutor, you'd really have to take a look at the whole," Sawicki said.

Jennifer Collins, an assistant law professor at Wake Forest University, studied all of the United States cases of children dying after being left in hot vehicles from 1998 to 2003 - 130 incidents involving 136 victims.

She reported in the Northwestern University Law Review in 2006 that caregivers were prosecuted each time they left children behind intentionally - as in the case of a Michigan mother who left her two children while she got her hair done - and where there existed aggravating factors, such as drinking or drug abuse.

"How long a kid is left in the car matters," Collins said in an interview. Was it brief forgetfulness? Or a daylong lapse when, especially with infants, caregivers would be expected to notice that they needed to be fed or their diapers changed?

Collins also found that blue-collar caregivers were prosecuted more often than white-collar. Parents were charged in a little more than half the cases involving them, while unrelated caregivers, such as baby sitters, were prosecuted 89 percent of the time.

Mobley said that chief factors in his decision not to prosecute included the fact that Culpepper didn't usually pick up his son and did not intend to leave him in the vehicle.

He also cited no prior evidence of mistreatment or neglect, no evidence that his family earlier asked where the boy was, and the medication the father had taken.

"It's a tragedy," Mobley said.

Matthew Bowers, (757) 222-3893, matthew.bowers@pilotonline.com