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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. |
