Pool Death Probation Called Too Lenient : Courts: Tustin day-care operator deserved jail time for letting three wards fall in pool, deputy D.A. says. The surviving toddlers suffered brain damage.

Prosecutors said Friday they were disappointed in the probation sentence handed to the operator of a Tustin family day-care home where one toddler died and two others suffered permanent brain damage when they fell in a pool last year.

“I would have liked more than what she was sentenced to,” Orange County Deputy Dist. Atty. Mark Jordan said. “Jail time would have been a fair response to what had happened.”

Diana Brooks was convicted by a jury in Municipal Court in Santa Ana on Thursday of operating the day-care center without a license, a misdemeanor. She was sentenced to three years of informal probation, a fine and penalties totaling $1,500. She also was ordered never to run a day-care center without a judge’s permission.

Municipal Judge Gary Ryan gave Brooks until April 19 to pay the fine and penalties.

Her daughter, Carol Brooks, 25, was acquitted by the jury after she testified that she was not an operator of the day-care program, but occasionally helped her mother, Jordan said. She was alone with the children on March 30 when the accident occurred. The three children were out of her sight while she changed the diaper of a fourth, according to authorities.

Diana Brooks’ husband discovered the three toddlers floating in the back yard pool when he came home to the house on Old Foothill Boulevard.

The Brooks family theorizes that the children climbed atop toys to unhook the 6-foot-high gate, which was latched shut but not locked. They apparently fell into the star-shaped pool just beyond the fence.

Fourteen-month-old Arthur Matthew Griese of Orange died the next day. The other two children--Melissa Polsfoot and Jonathan Derek Weston, both of Tustin and now 2 years old--suffered severe brain damage.

The district attorney’s office concluded that Diana Brooks had taken precautions to keep the children away from the pool by installing the chain-link fence with a padlocked gate, and ruled out any felony charges of involuntary manslaughter or child endangerment, which carry potential prison terms.

However, the padlock had been removed at the request of the County Social Services Agency because it was considered a fire safety hazard, prosecutor Jordan said. But Diana Brooks did not resecure or replace the gate as required by the county agency, he said.

Both defendants pleaded innocent, arguing that county social worker Winifred Schuberg specifically told them they could run the center while a license application for Brooks was pending.

However, Schuberg denied that in testimony. She said that she twice ordered the day-care center closed--in July, 1988, and January, 1989--while the application was being processed.

The next month, social services representatives sent the Brookses a follow-up letter stressing the importance of following regulations and obtaining a license, Schuberg said. Brooks, she said, ignored the letter.

Since the accident, parents of the three children have filed lawsuits against Diana Brooks and Orange County, which is responsible for licensing day-care centers. All three suits are pending.