ANCHORAGE (KTUU) - A manslaughter and criminally negligent homicide case against an Anchorage man has been dismissed after a judge found that the man had no legal obligation toward the 2-year-old daughter of his girlfriend. The girl’s mother, Stephanie Hamburg, still faces charges in the girl’s death.
The case against Timothy Hulsey was dismissed by Judge Kevin Saxby on April 23 after a motion from Hulsey’s defense team.
The toddler, Gabriella Marlow, died in May of 2017 from congestive heart failure due to severe iron deficiency. Investigators found that the girl, who lived with her mother and Hulsey in a trailer he owned, had eaten little more than milk and sometimes cocktail sauce.
Hulsey and Hamburg were both originally charged in the girl’s death. Hulsey was arrested when charges were first announced. Hamburg was arrested a couple weeks later.
The girl had lived in the trailer most of her life, though she was born in California. She was with Hulsey on May 10, 2017 when she got ill, and Hulsey took her home to her mother before continuing on his errands. Hamburg then called Hulsey to say Gabriella wasn’t breathing.
Neighbors called 911 and the girl died 14 minutes after getting to the hospital.
In the motion to dismiss, Hulsey’s defense argued that even though Hulsey didn’t realize the risk drinking only milk posed to the girl’s health, he had no legal duty to the girl, and that a person cannot be prosecuted for a failure to act, unless they are a parent failing to act for their own child. “Hulsey – as Hamburg’s boyfriend – had no authority to control Gabriella’s diet or to bring her to the doctor,” the motion wrote.
Hamburg said the girl had not been to a doctor in Alaska because she didn’t have health insurance and that she was afraid the Office of Children’s Services would attempt to take the girl, as her other children had all been removed from her care.
The defense argued that Gabriella’s anemia was not clearly visible from her appearance – the only obvious sign was that the girl’s skin was abnormally pale.
The motion, described the toddler as a “fussy eater,” and said that her mother had been trying to get her to eat a wider variety of foods, but that she did not know that cow’s milk wasn’t adequate to sustain a child. Hulsey also told investigators, according to the motion, that he wanted the girl to be on a different, plant-based diet, but because he was not her parent, couldn’t make that decision.
Hulsey and his mother both reportedly told Hamburg that the girl was probably fine and just going through a stage. Though Hulsey is a trained chiropractor, his defense argued, he “obviously did not have a lot of knowledge in the area of nutrition,” because at one point he told a police officer that cow’s milk should be adequate for a child because it’s adequate for a baby cow.
“As Gabriella’s mother’s significant-other, Hulsey had no legal duty to support Gabriella and, specifically, to manage her diet and healthcare,” the motion says. “More importantly it does not appear Hamburg would have allowed him to do either of these things even if he had wanted to.”
Prosecutors argued against the defense’s motion, saying the grand jury was already aware that Hulsey did not have a legal obligation to keep the girl from dying, and that he was indicted anyway. Regardless of that, prosecutors say, Hulsey did have an obligation and should be held criminally liable.
“As a matter of essential human morality,” prosecutors wrote, “Hulsey’s inaction is of course entirely indefensible.”
The prosecutors’ opposition cited legal decisions across the country, saying many decisions are “virtually unanimous in concluding that the non-parents nevertheless owe a duty to act to protect children when they assume a position in loco parentis – that is, when they assume a parent-like relationship with the child in question.”
Ultimately, Judge Saxby agreed with Hulsey’s defense team. “On the facts presented, there is no legal basis to assess criminal homicide charges against Mr. Hulsey for his tragic and woefully deficient part in the events leading to (the girl’s) death.”
Prosecutor J. Andrew Klugman told Channel 2 Friday that prosecutors are reviewing their options on whether to proceed with a different legal theory that might address the judge's concerns.