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The Hope Source v. B.T.

Court of Appeals of Indiana

September 20, 2017

The Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka, Appellants-Defendants,
B.T., by his mother and next friend, Melissa Troutman, Appellee-Plaintiff.

         Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Case No. 49D04-1411-CT-36677

          ATTORNEYS FOR APPELLANTS Edward D. D'Arcy, Jr. Michael J. Progar Merrillville, Indiana Sheryl A. Bradtke McNeil McNeil Kopka Pinkus Dolin & Eads, LLC Crown Point, Indiana.

          ATTORNEY FOR APPELLEE Mark A. Busby Indianapolis, Indiana.


         Statement of the Case

         [¶1] In this interlocutory appeal, we are asked to determine whether testimony obtained by facilitated communication is admissible in evidence. In this case of first impression in Indiana, we hold that in certain situations it can be. Here, we affirm the trial court's preliminary decision regarding the procedure for determining the admissibility of the contested evidence.

         Facts and Procedural History

         [¶2] B.T. is a minor, non-verbal child with severe autism, who was fourteen years old at the time of the trial court's order. He is unable to verbally communicate intelligibly. When B.T. was twelve years old, he received therapy for his autism through Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka (collectively "Hope Source"). B.T. began typing sentences, via facilitated communication, using a supportive typist, also known as a facilitator, in October 2013.

         [¶3] "Facilitated communication is defined as follows: a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control." Appellants' App. Vol. I, p. 96. "The technique was developed by Rosemary Crossley in Australia in the 1970's and introduced to the United States by Dr. Douglas Biklin in 1989." Id. When facilitated communication is initially being used, the communicator typically is supported above or below the wrist by the facilitator. Id. The goal is for the facilitator, over time, to move the support further back on the arm or shoulder so that there is less direct contact until there is no contact. Id. That technique is known as "fading." Id. The facilitator applies backward pressure and centers the communicator after each letter is typed to prevent the communicator from repeatedly striking the same key, one of the manifestations of behavior also known as perseveration. Id. Because facilitated communication is a joint activity, however, there is potential for what is known as "cuing, " where the facilitator may knowingly or unknowingly anticipate or in another way assist the communicator in selecting certain letters. Id.

         [¶4] B.T. uses an iPad containing an assistive typing program/application that reads each letter and then each word typed by B.T. B.T.'s facilitator stands or sits along his right shoulder holding the shoulder of his shirt. He no longer requires wrist or elbow support during his communications. Prior to the use of facilitated communication, B.T. could not communicate in any typed or written form. Facilitated communication is now the sole method by which B.T. can communicate.

         [¶5] The following allegations were made in the complaint against Hope Source. In November 2013, B.T.'s behavior changed. He expressed via facilitated communication that he did not like to work with his guide at Hope Source, Max Sigmon. After being dropped off one morning, B.T. vomited upon seeing Sigmon approaching him, and B.T.'s mother was called to return to the school to take him home. Thereafter, B.T. began sleeping in his parents' bed every night. At roughly the same time period, B.T.'s music therapist, who had allegedly been told by Julie Gordon, President of Hope Source, that B.T. "just plays dumb here for us and won't type, " advised Melissa that she noticed there was something not quite right with B.T. Appellants' App. Vol. II, p. 13.

         [¶6] B.T. typed to his music therapist that it would be hard to trust her because of "other therapists." Id. During an assistive typing session with his mother, she asked B.T. why he did not like working with Sigmon. He responded that he did not want to get in trouble, that Gordon was Sigmon's sister, and that "I don't want to make anyone mad." Id. At a meeting with Gordon and Lisa Chandler, Programs Director at Hope Source, B.T.'s mother expressed her concern that B.T. did not like Sigmon and asked that he not be forced to work with him. Gordon informed B.T.'s mother that B.T. was not allowed to decide which staff member he wished to work with and stated that Sigmon would continue to be B.T.'s guide.

         [¶7] During another assisted typing session with his mother, B.T. allegedly typed that he did not like Sigmon. After his mother asked him why, B.T. responded that "he thinks im retarded." Id. at 14. B.T. also typed that Sigmon was scary and asked if he was going to get in trouble if he did not want to be around him anymore. B.T. then typed that he did not want to discuss the matter further.

         [¶8] B.T.'s mother resumed the conversation later that evening, however, during which she asked B.T. if Sigmon had ever touched him inappropriately. B.T. is alleged to have typed that Sigmon placed his hand on B.T.'s butt and on his penis on two different occasions during the summer.

         [¶9] Melissa notified Hope Source that B.T. would no longer be attending Hope Source for therapy. B.T.'s parents met with Dr. Yamanaka and shared B.T.'s statements with her. Yamanaka allegedly stated to Melissa that she took "full responsibility for [B.T.] still working with [Sigmon]." Id.

         [¶10] An investigation was conducted by the Indiana Department of Child Services. The complaint was deemed "unsubstantiated" in a report filed on May 19, 2014. Id. at 63. The family case manager noted that on numerous occasions during his interview, B.T. would look away from the keyboard while typing with the assistance of his usual supportive typist, who was not his mother.

         [¶11] On November 7, 2014, B.T., by his next friend, his mother, Melissa Troutman, filed a civil lawsuit against Sigmon; his sister, Julie Brant Gordon, President of The Hope Source; Dr. Momi Yamanaka, a licensed psychologist and Clinical Supervisor at The Hope Source; and, The Hope Source.

         [¶12] Hope Source sought to depose B.T. prior to trial. On September 17, 2015, Sigmon filed a motion to bar the use of a facilitator at B.T.'s deposition. The other defendants joined in Sigmon's motion and filed their own motion seeking to bar the use of facilitated communication for the deposition or any future proceedings in the case. B.T. through his mother, Melissa, filed an objection.

         [¶13] On March 23, 2016, the trial court issued an order denying the request to bar the use of facilitated communication during the deposition. Appellants' App. Vol. II, pp. 95-100. The trial court granted Hope Source's petition to certify the decision for interlocutory appeal. A motions panel of this Court accepted jurisdiction of the interlocutory appeal, but, while retaining jurisdiction, remanded the case to the trial court, directing it to hold a hearing pursuant to Indiana Rule of Evidence 702 to create a record regarding the science surrounding facilitated communication and its admissibility. Id. at 108-09.

         [¶14] The trial court scheduled a hearing as ordered by this Court, but the parties and the trial court quickly realized that the time allotted would not be sufficient to provide an adequate record to aid the trial court in issuing its order for review by this Court. A brief enlargement of time was granted by this Court, and, after another hearing, the trial court entered its order finding, in pertinent part, that the science surrounding facilitated communication is largely unsettled. Appellants' App. Vol. III, p. 66. As such, the trial court found that B.T. carried the burden of establishing that he is the one communicating by ...

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