| ORANGE
COUNTY'S failure to adequately train
its social workers and its reliance on a controversial
method of conversing with a mentally retarded
11-year-old had brought a $750,000 jury verdict
for the child and her parents for removing her
from their home for 23 months.
A
federal jury last Friday returned the verdict
after a four-day trial before U.S. District Judge
Jed S. Rakoff in Manhattan, voting 8-0 to find
the county liable under 42 USC 1983 to Luz Prieto,
now 16 years old, and her parents, Augusto and
Luz Prieto.
Luz
was removed from her home on May 13, 1992, by
the Department of Social Services after a social
worker at the county's Board of Cooperative Education
Services (BOCES). school reported that the girl,
who was not verbal, had typed, with the help of
her teacher an accusation that her father had
been having sex with her and her mother had been
using sex toys on her. The accusation was typed
through the use of "facilitated communication."
Five
years earlier, a report that the girl was acting
sexually inappropriately was investigated but
no charges were brought.
The
evidence from the child's "facilitated"
speech was the sole basis of the abuse and neglect
charges lodged against the Prietos; a brief medical
examination did not raise any suspicions.
At
the trial before Family Court Judge Andrew P.
Bivona, the county sought to call the girl to
testify by facilitated communication, a technique
for helping nonverbal children, often autistic
or having autistic-like tendencies, to communicate
by typing while a teacher or facilitator supported
their hands.
Lack
of Training
The
technique was developed in Australia in the 1970s
and gained widespread attention in United States
in the early 1990s. Judge Bivona ordered a "Frye
hearing" to determine the validity of the
communication method and its acceptance in the
scientific community. He refused to adjourn the
hearing and dismissed the petition without prejudice.
The
Appellate Division, Second Department, ruled in
1993 that no Frye hearing was required and reinstated
the petition with directions that the trial court
determine whether the child's testimony was influenced
by the facilitator.
When
the proceedings were resumed before Family Court
Judge Elaine Slobod, she allowed an in camera
demonstration with Luz's teacher performing the
role as the facilitator. The judge determined
that she could not tell whether the responses
were or were not the girl's and dismissed the
petition. That ruling was affirmed by the Second
Department, and Luz was returned to her parents.
Judge
Rakoff last July dismissed all the Prieto's civil
rights claims except one alleging that the county
had failed to properly train its employees to
"use the difficult and unproven technique
of facilitated communication" which deprived
the Prietos of their constitutionally protected
interest in the care and custody of their child.
The
Prietos were represented in the Family Court proceeding
before Judge Slobod and in the federal trial by
Alan S. Zwiebel of Zwiebel & Fairbanks in
Kingston, N.Y.Daniel J. Schneider of Drake, Sommers,
Loeb, Tarshis & Catania of Newburgh was council
for Orange County.
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