Boyfriend's charges dismissed in child's malnutrition death
An Anchorage judge has dismissed felony charges against a mother's live-in boyfriend in the malnutrition death of her 2-year-old daughter.
In October, Anchorage Police said Gabriella Marlow's death on May 10, 2017 was a homicide. Prosecutors charged Marlow's mother, 37-year-old Stephanie Hamburg, and her boyfriend -- 41-year-old chiropractor Timothy Hulsey -- with manslaughter and criminally negligent homicide.
A bail memorandum alleges Marlow was born in California, but had lived with her mother in an Anchorage trailer that belonged to Hulsey.
According to the court document, Marlow "became sick while she was out running errands with Hulsey. He returned her to the trailer, where her condition worsened." After a neighbor called 911, Marlow was taken to a hospital where she died the same day.
"The state medical examiner concluded that the cause of death was severe iron deficiency anemia with congestive heart failure," prosecutors wrote.
Marlow had been starved, according to police, who say she was fed almost exclusively cow milk and occasionally Dr. Pepper or shrimp cocktail sauce.
Police said the child was known to be a "fussy eater," but had not been taken to medical visits since she was nine months old. Hamburg allegedly feared the Office of Children's Services would get involved and possibly remove Marlow from her care if the child was seen by a doctor.
Shortly after the charges were announced in October, Hulsey was arrested, while Hamburg remained on the run for more than a month.
During that time, a GoFundMe page raising funds for Marlow’s funeral was taken down; and videos which apparently showed Marlow eating and crying were briefly posted to Hamburg’s Facebook page, then deleted.
KTVA learned Hamburg had previously been held in Bakersfield in 2001, spending less than a week in jail on a charge of willful cruelty to a child, and according to court documents, "Hulsey acknowledged his awareness that Hamburg's nine older children had either died or been removed from her custody by the State of California.”
A grand jury indicted Hamburg and Hulsey in Marlow's death, but in March, Hulsey's defense attorney filed a motion to dismiss the indictment against Hulsey, arguing Hulsey had no "legal duty" to Marlow:
"Generally, an individual cannot be prosecuted for a failure to act. An exception to this general rule of criminal liability exists when a parent-child relationship exists; a parent has a duty to care for and support his or her minor children," Hulsey's attorney wrote. "Yet, Hulsey was not [Marlow's] biological parent or legal guardian. Further, Hulsey -- as Hamburg's boyfriend -- had no authority to control [Marlow's] diet or bring her to the doctor. In sum, Hulsey cannot be prosecuted for his perceived inaction as he owed no legal duty to [Marlow]."
State prosecutors argued that Hulsey was indeed responsible for Marlow's care.
"[Marlow] lived in Hulsey's house most of her life," prosecutors wrote. "He provided her shelter and such food as she was able to have. He assumed the role of her medical "evaluator", worked with Hamburg to raise her, and assumed responsibility for her care and supervision -- including, of course, on the day of her death. Having assumed this level of responsibility for [Marlow's] care, health, and well-being, Hulsey was obligated to take exercise reasonable care to protect her from death. His reckless failure to do so subjects him to criminal liability."
In an order dated April 23, Anchorage Superior Court Judge Kevin Saxby wrote that the Alaska Court of Appeals would find "insurmountable constitutional issues" with the indictment against Hulsey, based on its 1987 ruling in a similar case known as Olp v. State, in which it declined to assign legal responsibility to a child's step-parent.
"Of 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 her death," Saxby wrote. "For the above reasons, the motion to dismiss indictment is granted."
Hamburg remains in custody and is being held without bail. She appeared in court Thursday for a bail hearing. According to a bail memorandum filed by the state, Hamburg wanted to be released on a $1,000 bond with supervision by the Pretrial Enforcement Division, which, according to prosecutors, is not a legal option for cases initiated prior to January 1, 2018. The Judge declined to set bail based on the proposal, but said he'll consider other alternatives.
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