hard choices

Jury’s Out on Prosecution of Parents Who Leave Kids in Cars

Juan Rodriguez was charged with manslaughter after leaving his 1-year-old twins in a hot car.
Juan Rodriguez was charged with manslaughter after leaving his 1-year-old twins in a hot car. Photo: Juan Rodriguez/Facebook

The hammer of law enforcement came down on Juan Rodriguez scarcely as soon as he comprehended the horror: His twin babies had died, trapped in a Honda sedan he’d parked in summer’s heat Friday while he went to work in The Bronx.

The grieving father found himself under NYPD arrest shortly after he’d called 911 at about 4 p.m. Rodriguez, 39, told police that he’d forgotten to drop off Phoenix and Luna at daycare before his eight-hour shift at the James J. Peters VA Medical Center in Kingsbridge.

That night, Bronx District Attorney Darcel Clark charged Rodriguez with two counts each of manslaughter, criminal negligent homicide and endangering the welfare of a child. To secure his freedom, he paid $50,000 on a $100,000 bail bond. He could face up to 19 years in prison.

Criminal prosecution of parents who say they inadvertently left small children strapped in car seats is not uncommon — nor is it a given, say DAs who have grappled with this nightmare scenario.

Bronx District Attorney Darcel Clark.
Bronx District Attorney Darcel Clark. Photo: Ben Fractenberg/THE CITY

“There’s people that want an eye for an eye, a tooth for a tooth, but that isn’t the law. And if you just forget — if it’s purely, ‘I forgot’ — you need a little bit more than that to be a crime,” said Oneida County District Attorney Scott McNamara in an interview Monday.

Three years ago, McNamara was confronted with a similar situation. A Rome, N.Y., police officer forgot to drop off his infant son at daycare and accidentally left him in his car in the driveway all day. The baby died of hyperthermia.

McNamara investigated the case as a homicide, but ultimately decided not to charge the father, after concluding that New York law didn’t define what had happened as a criminal act.

“We really don’t have a statute that would cover that and maybe that’s the right thing, maybe the legislature was right in not doing that,” McNamara said. “I mean, as I say to people sometimes, sometimes things are just accidents.”

The Suffolk County district attorney didn’t bring charges when an 11-year-old girl with special needs died after her mother accidentally left her inside a scorching hot car in Long Island last August following an errands run.

A 50-50 Chance of Charges

Of the nine similar cases in New York state since 1990, criminal charges have been brought in four of them, according to the group KidsandCars.org, which advocates for safety measures and awareness to prevent such deaths of young children. Some of those criminal cases had extenuating circumstances, including parents found possessing drugs.

The same pattern holds true nationally: About half of the more than 900 such deaths since 1990 have been prosecuted as crimes, while the rest have not.

The group is urging the Bronx DA to drop the charges against Rodriguez.

“These are loving doting parents,” said Sue Auriemma, KidsandCars.org’s vice president, who pointed to research showing overwhelmed caregivers can accidentally forget young children in the back seat.

“They are not negligent parents. There was no intent to harm.”

‘Clinical Lapsed Memory’

Caregivers involved in these cases can suffer from a “clinically lapsed memory” tied to a sudden change in schedule or stress, according to David Diamond, a neuroscientist at the University of South Florida and expert on the phenomenon.

The memory lapse has nothing to do with negligence but is the result of “converging circumstances triggering the habit-based portion of the brain to overcome the thought-based portion of the brain,” according to Diamond.

The pattern was highlighted in a Pulitzer Prize-winning Washington Post report in 2009 that detailed commonalities among multiple accidental hot-car death cases.

Criminal prosecutions and the publicity they generate can actually put kids at greater risk, said Amber Rollins, director of KidsandCars.org. That’s because other parents believe they would never do such a thing to their child and then fail to take preventative measures — such as throwing a shoe into the back seat, she said.

“It makes people think it won’t happen to them because they believe they are not bad people,” she said.

A spokesperson for the Bronx DA declined to comment on the pending case against Rodriguez.

“He parked his car, and carried on with his day, and he forgot his children in the seats,” Bronx assistant district attorney Jaime Breslin said at Rodriguez’s arraignment Saturday, according to the Daily News. “He left the kids in the car for eight hours in high temperatures.”

‘Happens All Across the Country’

Rodriguez’s lawyer, Joey Jackson, told CNN the social worker “never had any intention of this happening.”

“It’s so sad that this unfortunately happens all across the country,” Jackson added.

Other attorneys who’ve represented parents in such cases warn that criminal cases brought quickly can fall apart under scrutiny.

“Prosecutors are quickest to jump and land on both feet when the harm is done to a child,” said David Terry, a Portland, Ore. attorney who represented a mother who accidentally left her 21-month-old daughter inside her car.

The prosecutor handling that case brought a manslaughter charge after the child’s death, then dropped the rap several months later.

Terry said charges could have been avoided had the prosecutor followed best practices laid out by a Utah district attorney in 2014.

Washington County Attorney Brock Belnap declined to charge a Utah mother who left her 11-month old baby inside her hot car after he consulted with Diamond and forensic examiners from the FBI’s Behavioral Analysis Unit.

“The idea that a responsible parent could forget a child in a hot car is difficult for many people to understand, yet statistics show that it happens all too frequently to people from every walk of life,” Belnap concluded following an investigation.

In upstate New York, McNamara said some constituents were upset when he decided not to prosecute.

“I got a lot of, I don’t know if hate mail’s the right thing, but people, you know, sending me, ‘I could never forget my child, how can anybody do that, there had to be a reason,’” McNamara said.

But he concluded that evidence, upon consideration, couldn’t justify bringing charges.

“I listened to his 911 call. He did not know that baby was in that car. That phone call haunts many of us and will forever, when he realized what he forgot.

“And then he found out, he got to see with his own two eyes what his memory or lack of memory did. That’s probably the worst punishment he’s ever going to have to deal with in his life. And we just couldn’t see a crime.”

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