Department of Social Services on Behalf of Jenny S v. Mark S

• Decision Date: 15 September 1992
• Citation: 593 N.Y.S.2d 142,156 Misc.2d 393
• Court: New York Family Court
• Parties: , 1 A.D.D. 759, 3 NDLR P 265 ., Petitioner, v. MARK & Laura S., Respondents. Family Court, Ulster County

Page 142

593 N.Y.S.2d 142

156 Misc.2d 393, 1 A.D.D. 759, 3 NDLR P 265

In the Matter of a Proceeding under Article 10 of the Family Court Act DEPARTMENT OF SOCIAL SERVICES, on Behalf of JENNY S., Petitioner, v. MARK & Laura S., Respondents.

Family Court, Ulster County.

Sept. 15, 1992.

Pamela Joern, for petitioner--Ulster County Department of Social Services.

Zwiebel, Brody & Gold, P.C. by Alan Zwiebel, for respondents.

Ariel Raab--Law Guardian.

KAREN K. PETERS, Judge.

LISTEN

There is a knocking in the skull,

An endless silent shout

Of something beating on a wall,

And crying, Let me out.

That solitary prisoner

Will never hear reply,

No comrade in eternity

Can hear the frantic cry.

No heart can share the terror

That haunts his monstrous dark;

The light that filters through the chinks

No other eye can mark.

When flesh is linked with eager flesh,

And words run warm and full,

I think that he is loneliest then,

The captive in the skull.

Caught in a mesh of living veins,

In cell of padded bone,

He loneliest is when he pretends

That he is not alone.

We'd free the incarcerate race of man

That such a doom endures

Could only you unlock my skull,

Or I creep into yours.

Ogden Nash

The question before the Court is simple--have we heard the frantic cry of a child? The answer is far from simple.

On November 25, 1991 the Department of Social Services brought an application before the Family Court, County of Ulster for an order pursuant to 1029 of the Family Court Act to restrict contact between Mark and Laura S. and their sixteen-year-old daughter, Jenny. A temporary order was entered by Judge Mary Work. Subsequently, the Department of Social Services requested an order of removal. The hearing was held before this Court.

This matter concerns alleged sexual abuse of Jenny by her father. Jenny is a non-vocal autistic child. The child allegedly disclosed the abuse through a method of augmentative communication known as "facilitated communication." The Court held a preliminary hearing to determine the admissibility of the alleged statement made through the use of facilitated communication. This hearing consumed approximately seven days of testimony.

All parties have been represented by highly competent counsel who have assertively and articulately propounded their positions on this most important issue. Research of counsel and the court indicates that this is a case of first impression, not just in New York but in these United States and, quite possibly, the world.

Petitioner called Rhonda Blumenthal, Susan Glickman, David Freschi, Daniel Crimmins, Ph.D., Cynthia Sheehan, Ph.D., Mary Winston Morton, Mary Darragh McLean, and James Weisman, Esq.

The respondent called Bernard Rimland, Ph.D., Catherine Lord, Ph.D., and Bennett Leventhal, M.D.

Petitioner seeks to introduce Jenny's alleged statement into evidence pursuant to 1046 of the Family Court Act. Section 1046(a)(vi) specifically provides that previous statements made by a child relating to allegations of abuse and neglect are admissable in evidence. The issue before the Court is whether the child herself made a statement.

Autism is a pervasive developmental disorder with onset in infancy or childhood. Jenny's diagnosis as autistic has not been challenged. The diagnosis of autism is based upon criteria as set forth in DSM-III-R. While proponents of Facilitated Communication question the present validity of the diagnostic criteria as set forth in DSM-III-R, this Court finds as a matter of law that those criteria should be considered unless or until appropriate scientific testing determines that they are not relevant to the diagnosis of the disorder. An individual suffering from autism exhibits a qualitative impairment in reciprocal social interaction, qualitative impairment in verbal and non verbal communication, as well as imaginative activity and a markedly restricted repertoire of activities and interests.

As noted by Douglas Biklen, Mary Winston Morton, and others in their article "I amn not a utistivc on thje typ (I'm not autistic on the typewriter)" as reported in Disability, Handicapped in Society, Volume 6, No. 3, 1991, "the communicative difficulties of people with autism may include pronoun reversals, repetitive (perseverative) speech, difficulties with social interaction and with the use of language in social situations, seeming need for sameness including a demand for particular words in particular situations, lack of response to external events, including noises, muteness and echolalia ....." Professor Biklen and the proponents of Facilitated Communication contend that many individuals suffering from autism are able to communicate and show unexpected literacy through the use of Facilitated Communication. Dr. Biklen's findings are not universally accepted by those individuals involved in diagnosing and treating autistic persons.

Facilitated Communication is a method developed by Rosemary Crossley and her colleagues at the Dignity through Education and Language Communication Center Deal in Melbourne, Australia, during the 1970s. Initially, Ms. Crossley developed the method to assist individuals with cerebral palsy. The provision of physical support, i.e. hand or arm support, enabled those individuals to achieve greater control over their movements. Thereafter, Ms. Crossley applied the method to non-verbal individuals with autism. Facilitated Communication is a training method, purportedly appropriate for individuals who are not yet able to communicate independently and meaningfully, but for whom meaningful, independent communication is a realistic and desirable goal.

The basic elements of the method include the use of a communication aid, i.e. letterboard, keyboard or typewriter, and the provision of physical support to the individual's arm by a facilitator. The facilitator's function is not to guide the individual toward a letter but instead provide resistance to the writer's forward motion. The facilitator then pulls the arm back to center after each selection. Because each disabled individual has his own unique disability, behavior, style of communicating and personality, the method is not uniform in its application from individual to individual.

Facilitated Communication is one method within the broad field of Augmentative Communication. It utilizes teaching skills and methods that are regularly used by special education teachers who teach disabled individuals and typical teachers teaching typical children. The facilitator must provide physical support, emotional support, encouragement and assume competence of the student.

The first reported independent study of the validity of Facilitated Communication was conducted in Australia in 1989. That state government inquiry entitled "Investigation into the Reliability and Validity of the Assisted Communication Technique" was conducted by the intellectual disability review panel. Its findings were contained in a report to the Director General on the reliability and the validity of assisted communication in March of 1989. The Director General of the Department of Community Services of Victoria had referred to the review panel for investigation the matter of the validity and reliability of a communication technique referred to as assisted communication which was widely used and promoted by an organization called DEAL. The Director General sought the advice of the review panel in many areas. Of particular importance was a request that the panel develop and apply a method to determine the validity and reliability of communication which occurs using the technique.

According to their report to the Director General, the methodology developed by the review panel using a number of controlled conditions was found to be an appropriate method for establishing the reliability and validity of the assisted communication technique being tested and specifically for determining whether the assistant influenced the communication and whether the client's communication was valid.

According to this study they had difficulty acquiring the cooperation of DEAL but were able to study assisted communication with six individuals.

In assessing the reliability and validity of assisted communication they determined that the validity of the communication was demonstrated in four of the six clients who participated in this study. They did note, however, that only the controlled study could determine whether an assistant was influencing the communications. They found that in all three cases of the controlled study, the response of the client was influenced by the assistant. They also noted that the assistants appeared to be unaware of their influence upon specific clients. The report determined that neither major position in the dispute was wholly supported. That is, they found that some communications were valid and reliable through assisted communication without influence by the assistant and others were clearly influenced by assistants.

Douglas Biklen, in his article "Communication Unbound: Autism and Praxis" discussed a qualitative study which he conducted. He demonstrated that people who have been labeled severely autistic selectively communicate with certain facilitators in certain circumstances. Harvard Educational Review, DOL 60, No. 3, August 1990.

As noted by the law guardian, individuals who undergo brief training in order to become facilitators are specifically required to assume competence of the child or adult being facilitated. Often, the facilitator physically manipulates the hand of the individual being facilitated. In some situations, the facilitator may be able to "fade" so that the physical contact between the facilitator and the individual being facilitated is minimized. The type of physical assistance provided to the person being facilitated could well be a relevant factor in determining the suggestibility of the procedure.

Applicability of Frye v. United States

Counsel for respondents contend...