Judge withholds prison sentence, places woman on probation for driving with son on top of minivan

An Ozaukee County judge on Thursday withheld a prison sentence and placed a 29-year-old women on probation for three years for driving down a Saukville street in September with her 9-year-old son on top of her minivan holding down a kiddie pool.

As conditions of probation, Judge Sandy Williams ordered Amber Schmunk, a Grafton resident who lived in Fredonia at the time of the incident, to participate in parenting classes and mental health counseling and undergo a psychiatric evaluation if deemed necessary by her probation agent.

Schmunk pleaded guilty to one felony count of second-degree recklessly endangering safety on March 15.

During the Thursday, April 26, sentencing, Schmunk’s attorney, public defender Rachel Boaz, characterized her client as a loving mother who has led a hard life absent of support from other people — including the fathers of her four young children and the two motorists who saw her driving down the road with her oldest son on top of her minivan.

“This is a case of a single mother of four children, ages 2, 3, 6 and 9, being overwhelmed,” Boaz said.

“I hope that if I saw a child on top of a car I would stop to help. Not one person offered Ms. Schmunk help. Instead, they called the police and took photos.”

Ozaukee County District Attorney Adam Gerol bristled at Boaz’s comments, saying the two witnesses, who were shocked to see a child riding on top of a moving minivan, did exactly the right thing by calling police and documenting the incident.

Williams agreed.

“The person driving behind her (Schmunk) did the absolute right thing by calling law enforcement,” the judge told Boaz. “No, the people who made contact with law enforcement did the right thing. Your client did the wrong thing by putting that child on top of a minivan.”

In sentencing Schmunk, Williams followed Gerol’s recommendation.

“Jail was never on the table here,” Gerol said. “The whole focus of this case was to provide protection for the children.

“To put a child on top of a car with minimal strapping was horribly, horribly reckless.”

Schmunk and her children were driving through Saukville on a warm Saturday, Sept. 9, afternoon when the children spotted a kiddie pool at the curb that had a sign on it indicating it free for the taking, Boaz said.

“The kids said, ‘Mama, mama, we want the pool,’” she said. 

Schmunk stopped and tried unsuccessfully to fit the pool in the minivan. 

“Then she makes the dumb, dumb decision to put the oldest child on top of the minivan,” Boaz said.

At about 3 p.m. on Sept. 9, police received a report of a woman later identified as Schmunk driving in the area of Hillcrest and Claremont roads with a child on top of her vehicle.

Police caught up with Schmunk at her sister’s house on South Colonial Parkway, where she told officers she had her son climb on top of the minivan because she had no way to strap the kiddie pool to the vehicle, according to the criminal complaint.

She said she only drove for a short time, maybe 20 to 30 seconds, before stopping and taking her son off the roof of the minivan.

Schmunk told an officer that her son was never really in any danger because she strapped him and the pool to the top of the vehicle.    

She also said she thought it was acceptable for her son to ride on top of the minivan because her father allowed her to do similar things when she was her son’s age, the complaint states.

During Thursday’s hearing, Gerol said a presentence prepared by the Department of Corrections concluded that Schmunk “has substantial needs in her life.”

“She is extremely overwhelmed with the situation she finds herself in,” he said. 

Gerol noted that a child protective services employee who was interviewed by the author of the presentence report said Schmunk had been referred to the department for child neglect four prior times.

“Ms. Schmunk is someone who has made and continues to make some very bad choices in life,” he said.

Boaz said that while Schmunk has exercised poor judgement, she is a devoted mother whose focus from the beginning of the case has been retaining custody of her children, even if it meant being branded a felon.

“The only thing that ever mattered to her was not losing her children,” Boaz said.

Schmunk said, “My life is my children. I’m their life. We’re a family.

“They can’t send them off to a stranger, especially not my 6-year-old. He would just shut down.

“I failed my kids already with them not having a dad. I wish they could have the life they were supposed to have.”

Boaz’s comments concerned Gerol and Williams, who said she seemed to suggest that Schmunk agreed to give up her right to a jury trial in order to retain custody of her children. A judge cannot terminate parental rights as punishment for a crime, but if Schmunk believed she could lose custody of her children if she didn’t plead guilty, her conviction could be vulnerable to appeal.

Boaz said that is not what she intended to imply, and Williams questioned Schmunk to make sure she understood her parental rights could not be terminated as part of the sentence.

Williams told Schmunk that she was missing the point of the case by talking about her feelings for her children.

“No one questions the love you have for your children, so stop focusing on that,” Williams said. 

What Schmunk needs to realize is just how much danger she put her son in, the judge said.

“There is no question about the seriousness of this incident, despite you downplaying it,” she said. “In the blink of an eye you could have lost your son.”

Williams noted that Schmunk told the presentence report writer that her son was not scared while riding on top of the minivan.

“That statement emphasizes my point,” said. “An 8 or 9-year-old kid isn’t going to be afraid of these things. That doesn’t matter because you’re the adult in charge of his life.”