First impression: Court may consider facilitated communication

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The Indiana Court of Appeals in an issue of first impression Wednesday affirmed a trial court ruling that allowed a disabled minor to testify in a civil trial using facilitated communication.

B.T., 14 at the time of the trial court order, has severe autism and communicates only by typing on an iPad touchscreen using a supportive typist, also known as a facilitator. B.T.’s mother sued Hope Source, which provided his therapy, after B.T. told her that a staff member inappropriately touched his penis on two occasions. A Department of Child Services investigation determined the complaint was unsubstantiated.

Hope Source objected to B.T.’s use of a facilitator during a deposition, but the trial court permitted it, prompting this interlocutory appeal. While the COA retained jurisdiction, it also instructed the trial court to conduct a hearing regarding the science surrounding facilitated communication and its admissibility, ultimately find the science unsettled and most jurisdictions have addressed the question on a case-by-case basis. Concerns have been raised regarding facilitated communication, and whether a facilitator could influence the letters and words the communicator is using.

The COA affirmed the trial court’s ruling.

“In our opinion, an assessment of the evolving caselaw in this novel area leads us to the conclusion that there has been a shift from an initial focus on the reliability of the science involved, to an emphasis on the examination of the details of the application of facilitated communication to each specific case,” Senior Judge Betty Barteau wrote for the court. Judgments on the reliability of evidence are within the trial court’s discretion.

“We note that in deciding what procedure should be used to determine the admissibility of B.T.’s testimony, the trial court concluded that it must first decide whether B.T. was the one communicating by use of facilitated communication,” Barteau wrote.

“The trial court’s thoughtful decision including detailed findings and conclusions, which greatly aided our appellate review, serves as a roadmap for the determination if B.T. is testifying, an opportunity for the defendants to challenge his competency, and, if his testimony is admitted at trial, an opportunity to challenge his credibility by way of evidence challenging facilitated communication as a method of communication. We find no abuse of discretion in the trial court’s preliminary ruling on the request to bar the use of facilitated communication.”

The case is The Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka v. B.T., by his mother and next friend, Melissa Troutman, 49A02-1607-CT-1656

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