Homicide charge dismissed against Norfolk day care director

CORRECTION: An earlier headline on this story incorrectly said the felony homicide charge had been dropped. It was dismissed by a judge, not dropped by prosecutors.

NORFOLK

Tammy Futrell, the director of a day care where a 7-week old baby died, did not commit felony homicide, a judge ruled Thursday.

Norfolk Circuit Court Judge Charles E. Poston ordered the felony homicide charge against Futrell dismissed Thursday, citing that the infant died from unknown causes that could not be attributed directly to day care workers. Futrell still faces a child neglect charge in the May 2010 death of Dylan Cummings.

The baby was found unresponsive at the Little Eagles Day Care after being placed on his stomach to sleep, court records state. A medical examiner's autopsy concluded that the child was otherwise healthy and determined the cause of death to be sudden infant death syndrome, or SIDS.

By definition, SIDS means that no legal or medical cause of death could be found, Poston wrote. Prosecutors would not be able to prove beyond a reasonable doubt that Futrell or other day care workers caused the baby's death, he wrote.

Prosecutor Jill Harris argued in court that poor conditions at Little Eagles Day Care presented many risks for a child to suffer from SIDS. Harris argued that as a church-run facility, Little Eagles was under less regulation than secular centers.

But Poston wrote in his nine-page opinion that although conditions at Little Eagles might have been substandard, regulation is a matter for the General Assembly and not the courts.

Prosecutors should never have brought homicide charges against Futrell, defense attorney John Stepanovich said. "The case has been built on a weak foundation, and it's starting to crumble," Stepanovich said in an interview Thursday.

The baby's death was a tragedy, he said, but not a crime.

Amanda Howie, spokeswoman for the Norfolk Commonwealth Attorney's office, said it was inappropriate to comment on the pending case. Prosecutors will push forward on the remaining cases, she said.

Betsy Cummings, Dylan's mother, declined to comment on the dismissal.

Little Eagles Day Care was located in the 1300 block of E. Little Creek Road in the Bethel Temple Church of Deliverance. It closed after Dylan's death.

Futrell and her daughter, Angel Hoskie, are scheduled for trial on single felony child neglect charges in March. Two other day care workers, Dinnetta Feeney and Juanita Bell, also face child neglect charges in the death, according to court records.

Poston initially denied Futrell's request to dismiss the most serious charge. But in November, Poston wrote to the attorneys and asked them to address a series of questions, including whether there was any evidence or expert witness that showed Futrell caused the death by SIDS.

Both sides agreed in court that SIDS was the only cause of death, he wrote.

Stepanovich said Futrell spent more than 200 days in jail, and is now free on bond. "We're relieved," he said, "but how can one be happy in a case like this?"

Louis Hansen, (757) 446-2341, louis.hansen@pilotonline.com