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Father Whose Baby Died in SUV "Made a Terrible Mistake": DA



    Father Whose Baby Died in SUV "Made a Terrible Mistake": DA
    NBC Bay Area
    San Jose Police Sgt. Heather Randol said police received a report of about an "unresponsive" baby in a car in the 3700 block of Payne Avenue

    Three months after a 9-month-old boy died after being left in his father's SUV, the Santa Clara County District Attorney ruled on Monday that the dad will not be charged with the baby's death.

    The father was extremely fatigued and mistakenly believed that he had dropped off the child, Giovanni Hernandez of Los Gatos, at a babysitter’s home on his way to work, the prosecutors' review concluded.

    Giovanni's official cause of death on April 16 was hyperthermia, or elevated body temperature, according to the Santa Clara County Coroner. The DA did not identify the father by his full name, only as "Mr. Hernandez."

    “Like most parents, I know how fatigue can sometimes rob us of common sense and good judgment,” District Attorney Jeff Rosen said in a statement. “While we have prosecuted child endangerment cases in the past, this tragedy does not rise to the level of recklessness that both the law and justice require.”

    Rosen added that to have criminally charged the father with child endangerment or involuntary manslaughter, prosecutors would have needed to prove beyond a reasonable doubt that he committed an "aggravated, flagrantly negligent or reckless act rather than one resulting from inattention or mistaken judgment," Rosen said.

    Rosen's decision is markedly different that what prosecutors decided near suburban Atlanta. Justin Ross Harris was charged with murder after the Cobb County District Attorney alleged he intentionally left his 22-month-old toddler in the back of the family SUV because he wanted a "child free life." Harris' friends and family, however, have countered that prosecutors made a "terrible mistake."

    In the Santa Clara County case, the prosecutors' review concluded the tragedy was not caused by the negligence of a reckless parent but rather was an error by a "normally conscientious, exhausted father."

    "That is the best news we have gotten all day," Kids and Cars president and founder Janette Janette said in phone interview from Philadelphia. "Those poor parents. Now, they can finally grieve."

    In April, the day after Giovanni's body was found, Yousif Njimeh told NBC Bay Area that the father worked for his brother at his vending machine company, Star Vending. The father's usual routine was to park his silver Honda SUV on Payne Avenue in San Jose and then take off in the company vending machine truck. The father, who had two other children, worked from 9 a.m. to 6 p.m., Njimeh said. Njimen said sister-in-law was supposed to babysit the boy, but there was some "miscommunication."

    The prosecutors' report released on Monday outlined a little more detail about what led up to Giovanni's death.

    On the day his son died, Hernandez woke up about 6 a.m. to get his two other children ready for school, and the baby ready for daycare at his relative's home. He had gone to bed just four hours earlier at 2 a.m. because he was up with the baby while his wife was at work at a new job delivering pizza. His wife returned at 3 a.m.

    Usually, it was Hernandez's wife's job to take the two older children to school and drop the baby off three days a week. But because of her new delivery job, there was a change in her routine.

    He didn't commit a crime; he made a terrible mistakeJeff Rosen, District Attorney

    Shortly after 8 a.m. that day, Hernandez piled his three children in his SUV. His oldest daughter sat in front. His older son sat in the back seat next to the sleeping baby.

    He dropped off his older children, and drove off toward his work.

    He told prosecutors he was extremely tired and dropped off his personal car to pick up his employer's truck, forgetting that the baby was in the back.

    At the end of his shift, Hernandez asked a co-worker at 6:30 p.m. if they could stop at the babysitter's to get his son, but he realized that he had never taken Giovanni there.

    He called 911, but it was too late.

    On average, 38 children die from heat stroke every year after being left in a car nationwide, according to Kids and Cars. Last year, however, the heat stroke car death toll hit 44. Giovanni's death was the first in the country in 2014. On Monday, Kids and Cars had documented a total of 18 nationwide.

    The dangers of parents leaving their children in hot cars was highlighted in the Pulitzer Prize-winning 2009 article "Fatal Distraction: Forgetting a Child in the Backseat of a Car Is a Horrifying Mistake. Is It a Crime?" The magazine piece, by Eugene Weingarten of the Washington Post, showed that anyone can forget a baby in a car, and that the most likely reasons are a change in schedule and sheer exhausation. Rosen and senior prosecutors read that article and were very "moved" by it, according to public communications officer Sean Webby.

    Fennell said that many of these deaths can be avoided if parents remember little tricks to remind them that their child may be sleeping quietly in the back seat. Two of those tips including having the babysitter call if the child does not show up in a timely manner, and leaving something necessary, like a purse, key card or phone, with the baby in the back seat so the driver will need to retrieve that item before heading into work.

    Hernandez has no history of child abuse or neglect, according to prosecutors. And by all accounts, the DA's office concluded, he is an "attentive" father.

    "He didn't commit a crime; he made a terrible mistake," Rosen said.

    IF YOU'RE INTERESTED: More tips can be found at KidsAndCars.org. The organization is also hoping that a petition will force the Obama Administration to provide more funding to the Department of Transportation to create innovative technology and require that technology be installed in cars.

    NBC Bay Area's Marianne Favro contributed to this report.