PITTSFIELD — A judge has dismissed the manslaughter case brought against two local foster parents in connection with the death of an infant in their care.
In a 17-page ruling Monday, Superior Court Judge John Agostini called the evidence against Matthew Tucker and Cassandra Barlow-Tucker “circumstantial and not particularly strong,” and found the office of Berkshire District Attorney Andrea Harrington failed to present to the grand jury sufficient evidence to support the indictments.
Agostini said prosecutors downplayed statements favorable to the Tuckers and attacked the couple’s character, leaving grand jurors with a “hopelessly slanted” view of the Tuckers.
The judge chastised the DA’s office for introducing evidence to grand jurors he said had little, or nothing, do with the Tuckers’ alleged culpability in the infant’s death, but was instead “intended simply to portray them as angry and inept foster parents.”
“This is not the standard of conduct the court expects from the Commonwealth in grand jury proceedings,” Agostini wrote.
Agostini allowed separate motions to dismiss filed by Tucker and Barlow-Tucker. A hearing on the motion happened Feb. 28. The case was prosecuted by Harrington and Assistant District Attorney Stephanie Ilberg-Lamm.
The charge of involuntary manslaughter carried a maximum sentence of 20 years in prison if convicted, Harrington said at the couple’s arraignment. In remarks in front of the courthouse in April 2021, Harrington said the child’s death was “preventable.”
“The Berkshire District Attorney’s Office is seeking justice. No child should die because a caregiver failed to provide basic medical care,” she said.
Defense lawyer Jill Sheldon, who represented Tucker at his arraignment, said at the time that the couple was heartbroken by the child’s death and was shocked to learn they were to be charged. She called the prosecution “an appalling scapegoating of these two very lovely individuals” and said that when the couple was vindicated “I’m hoping ... there will be an apology from the District Attorney’s office for all of this that’s happening to this family.”
A Berkshire County grand jury on March 23, 2021, handed up indictments charging Tucker and Barlow-Tucker with involuntary manslaughter involving neglect of legal duty and reckless endangerment in the death of Kristoff Zenopolous.
Zenopolous was born on April 17, 2019, with methadone and cocaine in his system, according to Agostini’s ruling. The infant was removed from his birth mother’s custody in October 2019 and placed in foster care with another woman.
In late November 2019, Zenopolous developed hives, congestion, a cough and eczema, Agostini wrote. A doctor at Berkshire Pediatrics in Pittsfield suspected the infant may be allergic to his then-foster mother’s dog, so Zenopolous received a new placement with the Tuckers.
The Tuckers were certified foster parents who had cared for about 20 other foster children and had four children of their own, Agostini said, two of whom were biological, and two they adopted in November 2019 after they were placed with the Tuckers by DCF.
Zenopolous was brought to the Tuckers’ Adams home on December 5, 2019, by a DCF social worker, Lauren Miller. Later that day, the infant’s social worker, Danielle Costa, went to their home to discuss Zenopolous’ background with his new foster parents.
But according to Agostini’s ruling, Costa did not bring with her “two necessary pieces of paperwork.” Those documents were a DCF placement agreement and a “family service plan.” That plan, the judge said, was “particularly important,” because it stipulated who was responsible for bringing the child to doctor appointments.
The question of the medical care the child received was central to the case.
Miller, the social worker, took the infant to a doctor’s appointment at Berkshire Pediatrics on Dec. 10, 2019. The child had a wheeze, and his doctor suspected it could be allergies, asthma, or a cold, and prescribed an Albuterol nebulizer. The doctor wanted to identify what was making Zenopolous wheeze, and scheduled a follow-up appointment for Dec. 18, 2019.
Meantime, Barlow-Tucker reported that Zenopolous seemed to be responding well to the nebulizer, a device that delivers the medication in aerosol form.
Dec. 18, 2019, came and went, and Zenopolous was not taken to the doctor, according to the ruling. Barlow-Tucker reached out to Halima Young, a DCF supervisor, two days later, and Young said she’d check on the appointment.
Costa and Miller reported that they’d told Barlow-Tucker about the appointment. However, Agostini wrote that “no one scheduled a replacement follow-up appointment or mentioned the missed appointment again.”
In January 2020, Barlow-Tucker asked Young for the important paperwork the family had not received, Agostini wrote, and also asked for Zenopolous’ medical care to be transferred to a doctor’s office closer to the Tuckers’ home, at Northern Berkshire Pediatrics in North Adams.
After the infant’s death, Young told state police she did not know whether the Tuckers ever received that paperwork, and expressed that she “was unsure but did not believe” that Barlow-Tucker’s request for a new medical provider for Zenopolous “went through.”
In an email to four DCF workers who were involved with Zenopolous, Barlow-Tucker checked in on her request for Zenopolous to start seeing a doctor in North Adams, and asked again about the missing paperwork. That email was recorded by DCF on Jan. 10, 2020, and in it, Barlow-Tucker also reported that the infant had a good appetite, was scooting and crawling, and described him as an “incredibly happy little guy.”
The Tuckers received visits from Rhonda Adams, with Early Interventions, three times in January, according to Agostini’s ruling. Adams’ last visit that month was on Jan. 30, 2020, when she made a note that the infant appeared well.
Several members of the Tucker family were sick at the time. During the first two weeks of February, Zenopolous was tired, had trouble drinking, was coughing and breathing noisily, and had a fever, the judge wrote.
The Tuckers believed the infant had the same cold as their other children, but was taking longer to kick it. So they gave Zenopolous children’s Motrin and Tylenol, put drops of water in his mouth to try to keep him hydrated, and kept up with the nebulizer treatments as prescribed.
Adams visited the Tuckers again on Feb. 14, 2020, according to the ruling. She watched Barlow-Tucker give Zenopolous, who had a runny nose and a cough, his nebulizer treatment, and “suggested” the infant may need to go to a doctor.
Even though the medical transfer hadn’t been approved, the Tuckers decided they would take Zenopolous to one of their other children’s doctors if the child’s symptoms didn’t ease by the weekend of Feb. 15 and Feb. 16, 2020, according to the ruling.
But Zenopolous seemed to improve and on Monday, Feb. 17, 2020, he was more energetic and was eating well. One of the couple’s older children put Zenopolous to bed that night in a room where the parents had installed a motion- and sound-activated camera, enabled so they could check on the children with their smartphones.
The camera picked up Zenopolous coughing and wheezing around 7 p.m. when Tucker went into the bedroom to put another of the couple’s children to bed.
Barlow-Tucker found Zenopolous dead in his crib with vomit on his face at 8:37 a.m. the morning of Feb. 18, 2020. Thinking the child may have aspirated overnight, she started CPR while Tucker called 911. EMTs and police arrived and confirmed the infant was dead.
Medical examiner Irini Scordi-Bello determined the infant died from complications of strep throat and pneumonia, and that fluid had collected in his lungs. Scordi-Bello said the condition didn’t have to do with the suspected asthma or allergies.
The doctor believed that based on the cause of death, the infant would have been feverish, lethargic and having trouble breathing on and off, but couldn’t say whether those things would be readily apparent to a parent or observer.
Agostini said the medical examiner’s testimony was “conspicuously unhelpful to the prosecution.”
Since others in the household were sick at the same time with typical flu symptoms, an “ordinary parent without professional medical training or expertise” would have difficulty recognizing Zenopolous’ condition as symptomatic of a massive infection, the judge said.
Agostini also noted that two different social workers visited with Zenopolous on three occasions in late January and early February, and didn’t think his medical condition was concerning enough to seek help right away from DCF.
Grand jury presentation
Judge Agostini took issue with some evidence prosecutors chose to present to the grand jury that he said was unrelated to the circumstances surrounding the infant’s death. Instead, the evidence served to paint “a certain picture of the Tuckers as foster parents,” and not a positive one.
Prosecutors showed grand jurors six blog posts totaling 70 pages that Barlow-Tucker had written about her experiences as a foster parent. In the posts, Barlow-Tucker expresses frustration and anger with DCF and the foster care system, and offers advice, according to the ruling.
Among the topics she wrote about were a former foster son about 4 years old who had behavioral issues. She addressed the hardships of caring for a child with a weak immune system.
She also wrote a post in 2017, when she was caring for two foster children, and expressed how one of them felt like family, but care for the other felt like a job.
Her posts about the child were distressing and gut-wrenching at times, Agostini wrote, and “placing them before the grand jury eliminated any chance that the defendants were going to receive a fair hearing.”
Barlow-Tucker’s last blog post was in February 2018, according to the ruling. State police Sgt. Ryan Dickinson testified that DCF had taken disciplinary action against the couple for violating a policy that Agostini said related to privacy. But Agostini said their failure to protect their foster children’s privacy in that case was unrelated to the question of whether they committed a crime involving Zenopolous’ death.
Prosecutors also presented evidence, via Dickinson’s testimony, about DCF payments the Tuckers received to support Zenopolous, which included a $1,054 overpayment disbursed after the infant’s death that Dickinson said the Tuckers had to pay back.
Agostini said the testimony amounted to the suggestion that the Tuckers had knowingly defrauded the government, a suggestion that he said painted a grim, yet apparently unsupported, picture of the couple as being more interested in money than the child’s welfare.
Calling it an emotional case, Agostini wrote that prosecutors presented evidence that invited the grand jury to indict not because the Tuckers acted wantonly or recklessly, but because they were made to be perceived as greedy and “despicably neglectful, irresponsible and uncaring foster parents” who had it out for DCF.
Further, the Tuckers’ DCF family resource social worker, Kim Simon, told state police that the couple was among the most “conscientious, engaging and forthcoming” foster parents she’d worked with. However, Agostini said her statements were on “a disk that was submitted but not played to the grand jury.”