March 15, 2010

Ex-staffer fined in day care drowning

ELBERT AULL

— By

Staff Writer

A former employee at a Westbrook day care center pleaded guilty Tuesday to reckless conduct in last year's drowning of a 3-year-old boy in her care.

Patricia Lobley, 63, of Westbrook was fined $2,000 over the drowning at Koala Child Care. As part of a plea agreement approved in Portland District Court, she will not spend time in jail or on probation.

The guilty plea came 18 months after the death of Andrew Thurston of Cumberland. Thurston was found floating face-down in a 3-foot-deep pool during a swimming class on March 26, 2007. The boy's death spurred tighter regulations at pools in child care centers statewide.

Deputy Attorney General William Stokes said the plea agreement was approved by the boy's mother, Audrey Thurston Wieland, who moved out of state after her son's death.

Andrew drowned after Lobley allowed the boy and four other children to remove their life jackets so they could jump into the pool during a swimming class.

Lobley told investigators she did not know how much time passed before she realized the boy was in trouble. He apparently had climbed into the pool behind the woman and drowned as she watched the other children.

Stokes said Lobley made a ''terrible judgment call'' that day and had an obligation to watch the boy more closely because she knew he could not swim. Andrew Thurston was one of four in the class with little or no swimming ability.

''I felt that this was conduct that went over the edge,'' Stokes said.

A Department of Health and Human Services inquiry found that both Lobley and the child care center's owner, Kim Cairns, provided inadequate supervision before the boy's death.

Lobley did not appeal the finding. Cairns appealed the ruling, and it was overturned in May. Brenda Harvey, commissioner of DHHS, said in the ruling that there was an ''insufficient causative link'' between Cairns' role as co-owner of the day care center and the drowning. ''Ms. Cairns did not directly supervise the work of the swimming instructor, nor did she play any guiding role in the swimming program's design or implementation,'' Harvey wrote.

State regulators put the day care center under several restrictions for a year after the incident.

One of the restrictions required that the pool be supervised by a certified lifeguard and swim instructor.

Lobley had been a swimming instructor for about three decades and had worked for both the city of Westbrook and town of Cumberland.

But investigators discovered that her Red Cross certification had lapsed in 1978.

The state did not regulate pools at child care facilities at the time of the drowning, but that quickly changed.

Officials at DHHS adopted regulations within months that require child care centers to have certified lifeguards on duty during swimming classes in any pool that measures more than 16 feet wide.

The pool at Koala is 30 feet wide.

Stokes said $2,000 was the maximum fine for the misdemeanor reckless conduct charge.

He said Andrew Thurston's family wanted a criminal conviction, but did not want to pursue a manslaughter charge.

''(The conviction) is nothing worse than she probably imposes on herself every night when she goes to bed and realizes a child is dead,'' Stokes said.

The boy's mother did not return a phone call Tuesday seeking comment.

Lobley declined to comment as she left court.

Her defense lawyer, Daniel Kelly of Springfield, Mass., said she has been in counseling since the death and no longer works in the day care business.

Kelly said his client, who attempted to resuscitate the boy after she found him in the pool, would have fought a manslaughter charge.

The pool at Koala remained closed for months after the incident.

It was leased, along with classroom space, to a swimming instruction company, Swim Time, and reopened last September.

Staff Writer Elbert Aull can be contacted at 791-6325 or at:

eaull@pressherald.com

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