No criminal charges in case of boy who died in hot car; wrongful death lawsuit filed

AMERICAN FORK — Criminal charges will not be filed against a care facility or any of its employees who were supposed to be watching an 11-year-old boy who has autism when he was left in a hot car and died.

The decision by the Utah County Attorney's Office prompted attorneys for the estate of Joshua Hancey, 11, to go forward with their wrongful death lawsuit against Roost Services and several of its employees. It was filed last week in 4th District Court.

The employee who left Joshua in the hot car for hours, resulting in the boy "essentially cooking to death," according to the lawsuit, blamed the situation on "work overload."

On July 21, 2021, Joshua, or "Joshee" as he was called by his foster parents, was being watched by employees at Roost Services, 42 N. 200 East, in American Fork — a day treatment center which provides services for individuals with developmental disabilities — when an employee forgot Joshua and left him in a car parked near the facility.

According to the lawsuit, employees at Roost say they were understaffed and overworked at the time of Joshua's death. A lack of communication on that day also contributed to the boy being left in the car, according to the final report filed by American Fork police and obtained by KSL.com through a government open records request.

Police had recommended that the employee in charge of watching Joshua that day be charged with child abuse homicide and obstruction of justice, according to the report.

But Utah County Attorney David Leavitt declined to file charges, saying that Joshua's death was not intentional.

"We express appreciation the American Fork Police Department and those in our office for a thorough investigation. The standard to file charges in the death is to find evidence of criminal wrongdoing. We must be able to prove the requisite criminal intent to charge a crime. We reviewed the video footage. Witnesses were interviewed. We looked at all of the evidence. What emerged for us was a picture of an absolute tragedy. But, every tragedy is not a crime," Leavitt said in a prepared statement.

Peter Mifflin, one of the attorneys representing the estate of Joshua, said while he does not believe employees intentionally killed Joshua, their actions were reckless. And based on the child with disabilities statute, a charge of negligent homicide would be warranted. Mifflin said intent is not required in this situation for a criminal charge. If that were the case, he believes a negligent homicide charge would almost never be filed. A charge is warranted in this situation, he said, because the caretakers disregarded the known risks they were taking.

"They knew he had disabilities. They knew he was in the car. They knew it was a summer day," Mifflin said. "We're not saying (the company supervisor) was out to get him. But they had enough knowledge that (Joshua) needed additional supervision."

Roost employees knew Joshua needed extra supervision, Mifflin said, because just one month before his death, he walked away from the care center unnoticed by employees. That June 15, Joshua wandered away from Roost and was later found by a passerby near a construction zone at 233 E. Main Street.

"Josh was found near a hole in a construction zone. He would shake and scream when spoken to. Josh would not speak to police. He became sufficiently distressed and agitated that he began biting himself, sustaining physical injury," the lawsuit states.

Attorneys for Joshua say the incident was never reported to the Utah Division of Child and Family Services. And despite the boy wandering off unnoticed by staffers, Roost did not hire any additional help or do anything to improve their situation in the month between that incident and Josh's death, according to the lawsuit.

"Roost had clear notice that things were falling through the cracks," Mifflin said. "They were aware of their staffing situation for a month."

The suit implies the company's decrease in care quality started with its owner's divorce in March 2021, when the owner was ordered to pay more than $520,000 to his ex-wife over the course of 10 years.

"Upon information and belief, this court order created financial pressure on (the owner) and incentivized him to increase Roost's net profits and thus cash flow to himself in order to service his monthly debt obligation to (his ex-wife) and to maintain his own personal lifestyle," the lawsuit states. "Upon information and belief, (he) accomplished this by running Roost Services LLC on tighter margins. This meant less staff for the same number of disabled clients."

The lawsuit points out that the state has minimum staffing requirements for facilities like Roost so basic safety standards can be followed.

"There are limits to what a person can do in a given day, making the number of 'hands on deck' a critical factor in providing adequate care, especially when the anticipated clientele have special needs," according to the lawsuit.

Joshua, who was non-verbal and autistic and had been a client at Roost for many years, was determined by the company to be a client who "required constant supervision and should not be left unsupervised for any amount of time."

But on July 21, attorneys say Joshua was left alone in a hot car for nearly three hours.

A 'painful and horrible death'

On the day of Joshua's death, an employee did not show up for work, apparently quitting without notice, the lawsuit states, placing Roost below the minimum staffing requirements.

Joshua was picked up from his home in Riverton by an employee and taken to the American Fork facility for the day, as normal. But an employee who acted as a supervisor, trying to make up for the absence of the employee who quit, then went out and picked up another client and took Joshua with him.

The group — which included the employee, Joshua and two other clients — returned to Roost just after 10:30 a.m. According to video surveillance obtained by police, the employee helped one client out, while a second got out of the 2011 Nissan Maxima by himself. "Josh was not observed exiting the vehicle," the police report states.

Joshua was left inside the car for two hours and 45 minutes with the windows rolled up, the vehicle locked and the child locks engaged. About 1:15 p.m., Joshua was discovered in the car by the employee who had originally forgotten to take him out.

The temperature in American Fork that day reached 93 degrees, the lawsuit states. American Fork police noted the temperature when they were called to Roost was 91 degrees, and the interior of the vehicle is believed to have reached 140 degrees, their report states.

"Upon information and belief it is believed that Joshua Hancey was exposed to temperatures inside the car in excess of 100 degrees for multiple hours," the lawsuit states.

According to the police report, "Joshua's external temperature was recorded at 106 degrees Fahrenheit at the time medical staff was performing life-saving measures. This was after Joshua had been brought into a cooler environment and worked on for several minutes. Medical staff advised Joshua's internal temperature at the time was approximately 110 degrees Fahrenheit."

Josh died of hyperthermia and suffered a "painful and horrible death," according to the lawsuit.

"Prior to essentially cooking to death in the back seat of (the) car, Joshua Hancey experienced considerable agony, pre-death pain and suffering as evidenced by fresh bite marks on various locations of his body," the lawsuit states.

An autopsy revealed Joshua had eaten items such as a brown paper bag from a fast-food restaurant just prior to dying.

"It is believed Joshua began eating these paper items out of hunger or frustration due to the heat in accordance with his specific conditions and known propensities," according to the lawsuit.

Joshua's foster mother told police that he had been taught not to get out of a vehicle without permission because of his tendency to wander off. The report from police also noted that even if Joshua had tried to get out of the car, he wouldn't have been able to because of how the locks were set up.

When questioned by police, the man who was supposed to be watching Joshua stated that he had run into a meeting after arriving at the facility, and made statements such as "obviously I didn't mean to leave him in there" and "we got out and I went down to a meeting," the police report states. Officers noted that the man was "visibly upset." In surveillance video, when he discovered Joshua had been left in the car, the employee "raises a hand to his head, as if in disbelief. (He) then is able to see Josh inside the passenger rear seat of his vehicle and puts both hands on his head and doubles over," according to the report.

Miscommunication and no head count

Right after the employee arrived at Roost with Joshua, other employees were loading up the other clients into two vans to take them on a field trip. But no one did a head count while loading the clients into the vans, and the supervisor who was in charge of Joshua had not been doing head counts lately, the police report states. Employees driving the vans apparently thought Joshua was in the other employee's vehicle, according to the report.

It wasn't until the employees on the field trip realized that Joshua was not in either van, that they called their supervisor — the man who had driven Joshua to Roost and left him in the vehicle — and asked him where Josh was. The supervisor did not believe Joshua was in his car but went out and checked anyway, the police report states. At that point, the employee talking to the supervisor heard him panic and hang up the phone.

According to the Department of Human Services' website, Roost's business license expired in April and was not renewed. The website lists the business as "closed."

The estate of Joshua is seeking unspecified damages to be determined in court.

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