Former day care owner speaks 12 years after baby death

Victim's family wants parents to be vigilant

INDIANAPOLIS - A former day care owner convicted of felony neglect is speaking out more than a decade after a baby died in her care, Call 6 Investigator Kara Kenney reported.

Trevor Tober, 8 months, died April 4, 2002, in a recalled baby swing at an unlicensed day care.

Tober was left unattended by the day care owner, Timolyn Fitzgerald.

Fitzgerald pleaded guilty to felony neglect of a dependent and completed probation and community service. Fitzgerald did not serve any jail time.

Court records said she left Trevor alone for 30 minutes, but Fitzgerald disputes that.

"It was more like seven minutes," said Fitzgerald when interviewed outside her apartment Tuesday.

Fitzgerald said she thinks about Trevor’s death every day.

"I think about what happened to me also," Fitzgerald said. "I had really nothing to do with it other than put a baby inside a recalled swing. I did nothing wrong."

Fitzgerald said the tragedy changed her life.

"I lost my day care, I lost my business of 10 years, my credit, my home," Fitzgerald said. "I was made out to seem like a criminal. When we lose someone we love, we have a tendency to blame others, but I didn’t make the swing."

Tober’s parents, Staci and Greg, filed a lawsuit against Graco Children’s Products pursuant to Indiana’s Product Liability Act, and a jury rendered a verdict in favor of Graco, finding that the Tobers failed to prove the Lil’ Napper swing was defective.

A police officer who inspected the swing said the harness restraint of the Lil' Napper had been re-routed through the wrong slot in the back of the seat. 

The Tobers also filed a civil suit against Timolyn Fitzgerald, and settled with her insurance company. The money was used to cover hospital bills, according to Staci Tober.

The Tobers contacted Kenney after the Call 6 Investigators aired a special report about unlicensed day cares .

Trevor was attending an unlicensed day care was and left upstairs while Fitzgerald went downstairs to care for other children.

It’s unclear whether a license would have saved Trevor’s life, but unlicensed day cares do not have to follow any safety or supervision regulations.

Licensed centers , on the other hand, are required to keep children within "sight and sound" meaning they have to see and hear the child.

Licensed homes must keep the child within "sight OR sound," but the provider has to be on the same floor as the child.

"There’s always questions," Staci Tober said. "It may be if they had kept records of recalled swings, maybe that swing wouldn’t have been there."

The Tobers want parents to know about the dangers facing children including recalled products still being used inside day cares.

"Know what equipment they’re using," said Greg Tober, Trevor’s father.

Kenney did some checking and learned the state has no specific requirements for child care providers to adhere to recall notices.

"We require that the equipment is safe and does not endanger the health, safety or welfare of the children," said Marni Lemons, spokesperson for the Indiana Family and Social Services Administration, the agency tasked with inspecting child care providers.

The Tobers say parents need to be proactive.

"You can do the research yourself, there’s plenty of website out there to look for recall notices," Greg Tober said.

You can search for recalls here through the federal government and the Consumer Product Safety Commission:

http://www.saferproducts.gov/Search/default.aspx
http://www.cpsc.gov/en/Recalls/
http://www.recalls.gov/

Fitzgerald said she is no longer caring for children, other than her own.

"No, I don’t keep kids and I don’t want to," Fitzgerald said.

To find out if your child’s day care is licensed or not, go to the FSSA Carefinder website

If your provider does not show up, they are likely operating without a license.

Trevor Tober would have turned 13 years old this year.

His parents hope by sharing their story they can save another family the heartache they’ve had to endure.

"It’s a job well done if we can stop at least one person from having to deal with it," Greg Tober said.           

Follow Kara Kenney on Twitter: @karakenney6 | Facebook: KaraKenneyNews

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