An American Fork care facility for people with intellectual disabilities was short-staffed the day one of its employees left an 11-year-old in a hot car for hours, leading to his death last summer, according to a new wrongful death lawsuit.
The center, Roost Services, planned to let its license lapse after the boy’s death, and it will expire Saturday, state records and the Utah Department of Health said.
The lawsuit filed by Joshua Hancey’s parents allege their son died, in part, because Roost Services owner Robert Rudd had hired a small staff primarily made up of “unskilled,” “college age adults” and was operating with too few employees on July 21, 2021, when Hancey died.
Hancey was on the autism spectrum and nonverbal, according to the lawsuit. He had been diagnosed with attention deficit hyperactivity disorder and had a compulsive eating disorder that compelled him to eat nonfood items.
Attorney Peter Mifflin said the family filed the lawsuit because the Utah County Attorney’s has decided not to file criminal charges in connection with Hancey’s death.
“We appreciate the time and attention paid by law enforcement to this matter,” Mifflin said, “however, at the end of a seven-month investigation they elected to do nothing at all.”
Utah County Attorney David Leavitt confirmed prosecutors didn’t file charges in the case. He said his office and American Fork Police Department conducted a thorough investigation, but said it didn’t uncover evidence of criminal wrongdoing.
His decision depended on the intent of those involved, he said, and his office found that “no one intended to cause harm to this boy.”
“As we looked at video footage and interviewed witnesses and looked at all of the evidence, what emerged for us was a picture of an absolute tragedy,” Leavitt said, “but not every tragedy is a crime.”
Representatives from Roost Services also didn’t respond Friday. No one appeared to be at their office building in American Fork.
Mifflin said he hoped the lawsuit will provide answers to questions he and Hancey’s parents still have about Roost Services, like how staff could have been unaware of Hancey’s absence for so long.
A staffer left Hancey in the car outside Roost Services from 10:33 a.m. until 1:17 p.m., according to the lawsuit. It was 93 degrees that day, and Hancey’s post mortem body temperature was 106 degrees. He died of hyperthermia.
The lawsuit accuses Rudd, COO Jace Schindler, the staffer and five unnamed and unknown employees who “do not have any specialized training or professional licenses whatsoever” with negligence. It accuses Rudd, Schindler and the staffer of reckless endangerment, and Rudd and Schindler of breaching their fiduciary duty.
Mifflin said he and his clients believe that while the staffer failed to care for Hancey, they also think he was “set up to fail” by Roost Services’ owners and management.
A lethal case of ‘work overload’?
On July 21, an employee at Roost Services didn’t show up for work and didn’t tell anyone in advance, the lawsuit states. That meant the staffer was doing tasks outside his normal job requirements.
Another employee dropped Hancey off at Roost Services, and the staffer took Hancey with him to pick up another client. When the three returned, the staffer and the client got out of the car. Hancey was left inside.
He stayed there for two hours and 44 minutes, the lawsuit said, citing surveillance footage. The car was in “direct sunlight.”
Before his death, the lawsuit states, “Joshua Hancey experienced considerable agony, pre-death pain and suffering as evidenced by fresh bite marks on various locations of his body.”
The medical examiner also found a brown paper McDonald’s bag and pieces of blue paper, perhaps from an absorbent urinary pad, in Hancey’s stomach. The lawsuit said he likely ate the items “out of hunger or frustration due to the heat.”
The staffer told police, according to the lawsuit, that “work overload” caused him to leave Hancey in the car.
This wasn’t the first time that Roost Services failed to supervise Hancey.
On July 15, the previous week, staff allowed Hancey to wander away from the facility. A passerby found him at a nearby construction site. When people tried to talk to him, he screamed, shook and bit himself.
The same staffer responded and picked up Hancey after police sent out a reverse 911 call to everyone in a 2-mile radius. The staffer told police, the lawsuit says, that Hancey “was a new client.” Mifflin said Hancey had been a client for years.
The lawsuit claims that the only remedial action taken after July 15 was to “provide training to staff on the client’s behavior plan and the need to be alert at all times to keep him safe.”
Running ‘on tighter margins’
Rudd began operating “on tighter margins” after finalizing his divorce in March 2021, the lawsuit said. A judge ordered he pay his ex-wife more than $4,300 a month for the next ten years as part of divorce proceedings, according to the lawsuit.
The lawsuit said Rudd tried to keep the staff small, operating just above the state’s threshold for minimum number of employees. The suit also alleged the business relied on “unskilled labor from young college age adults aged 18 to 24.”
When an employee didn’t show up that day in July, the lawsuit said, the company fell below the number of employees required by the state.
In July 2021, DHS found Roost Services in violation of several licensing rules, including not having the appropriate number of trained staff, not properly supervising clients and not taking “reasonable measures” to keep clients and staff safe.
It placed the facility’s license on conditional status, meaning the business had to notify clients it had violated its licensing agreement and could not accept new clients until the violations had been resolved, among other provisions.
Roost Services did not appeal the findings.
“They have informed us they intend to let the license expire on its conditional status,” a DHS spokesperson said Friday. “We are not aware that they have served anyone on the licensed program since the conditions were put in place.”
Mifflin said he hopes to hold those responsible accountable for Hancey’s death and catalyze industry-level changes so something like this doesn’t happen again.
“I lack the power to force the criminal justice system to take any specific action. I lack the power to force the state to take any specific administrative action,” he said. “All we can do is file a lawsuit, discover facts and ask a court to assess responsibility in the form of dollars.”
As of Friday afternoon, there are not court dates scheduled for this case.
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