Misdemeanor Charges Filed in Pool Death, Injuries to 2

A North Tustin mother and her daughter were charged Tuesday with failing to obtain a family day-care license--a misdemeanor--in the March 30 drowning of one toddler and the near-drownings of two others who fell into a back-yard swimming pool.

Orange County Deputy Dist. Atty. Thomas M. Goethals said a criminal complaint was filed against Diane Brooks, age unknown, and her daughter, Carol Brooks, 24, charging each with one count of “willfully violating” the California health and safety code that requires day-care providers to be licensed. If convicted, Goethals said, the two face a maximum penalty of 6 months in County Jail or a $1,000 fine, or both.

One of the three toddlers, 14-month-old Arthur Matthew Griese, died about 24 hours after he was pulled from the pool by Orvel Brooks, Diane’s husband. Melissa Dianne Polsfoot, 20 months, of Tustin, and Jonathon Derek Weston, 23 months, remain hospitalized with severe and permanent brain damage.

Although Carol Brooks was the only one home when the children toppled into the pool, Goethals said Diane Brooks was char- ged because she owns the home, cared for the same children and had been in contact with county day- care licensing officials about complying with state requirements.

A family member said Tuesday that neither woman wanted to discuss the case. Both mother and daughter have said in the past, however, that they considered the drownings and near-drownings a tragic accident.

The Polsfoot family has filed an $11-million claim for damages with the county. A claim is a legal precursor to a lawsuit.

Twice within the last year, the Brooks women were ordered to stop caring for children after county Social Services Agency workers, responding to complaints from neighbors, found the play area littered with debris and the yard inadequately fenced. The Brooks family later erected a fence around the star-shaped pool, but the gate did not have a self-closing latch.

The two women were notified of the charges Tuesday by the Orange County marshal’s office and are expected to voluntarily surrender in court within the week, Goethals added. An arraignment date will be scheduled at that time. Although he considered charging the two women with felony involuntary manslaughter or felony child endangerment--charges that carry potential prison terms--Goethals said Tuesday that there was insufficient evidence to justify either allegation.

“If I tried this as involuntary manslaughter, the jury would be told that the negligent act could not be the result of bad judgment or inattention,” Goethals explained. “That’s the language in the law. If you find they are negligent by exercising poor judgment, it’s got to be a gross example of negligence.”

Carol Brooks told authorities that she was baby-sitting alone that March afternoon when three toddlers in her care managed to get through a chain-link gate leading from the patio to the pool of her parents’ Old Foothill Road home in the Cowan Heights area of North Tustin.

Goethals said she estimated that she left four children--including her own--unattended for 5 to 10 minutes as she diapered a fifth infant inside the home. “And I have no one to disprove that statement,” he said. An investigation failed to show how long the children had been in the pool.

But the investigation showed that one of the five children climbed onto a toy push car and unlatched the 6-foot-tall pool gate, Goethals said. Although state law requires such gates to have self-closing latches, Goethals said that might not have averted the tragedy because a 3-year-old child standing atop the chair might have been able to lift the latch.

“One of the children climbed up on a toy and opened the gate . . . and it was a stretch from there,” Goethals said. “We measured the car and all the children at all their full extension to see if it could happen, and it sure could. It’s not clear which of the kids did it. There were five children who were capable of it.”

Goethals said he and detectives with the Orange County Sheriff’s Department, which investigated the tragedy, had mixed feelings about the misdemeanor charges that, after more than a month, were filed against the baby-sitters on Tuesday.

“The reluctance is this. When you hear about what happened in this case it is a very gut-wrenching thing to know that those children were injured and the one died in the manner that they did. And I think in light of the horrible nature of the tragedy here, sort of a knee-jerk reaction here is, ‘Someone should probably be prosecuted.’ But I have certainly tried to avoid any type of instinctive or knee-jerk reaction in analyzing it in a legal sense. And that’s why we have taken such time” in deciding whether to prosecute the Brookses.

Parents of the three toddlers could not be reached for comment Tuesday.

“I have spoken to one of the parents at some length,” Goethals said, preferring to protect that person’s privacy. “She wanted an explanation, and I gave her an explanation, and I think she understands my concerns are from a legal standpoint--just as I understand what her concerns are from an emotional standpoint. . . . I hope she understands why I decided what I decided.”