In re A.L.

 

 

 

 

 

 

 

 

 

 

Filed 7/29/13  In re A.L. CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re A.L., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,         Plaintiff and Respondent,               v.   T.L.,         Defendant and Appellant.	G047470            (Super. Ct. No. DP021790)            O P I N I O N

 

                        Appeal from orders of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Jane Shade, Temporary Judge.  (Pursuant to Cal.
Const., art. VI, § 21.) 
Affirmed.

                        Marsha F. Levine, under
appointment by the Court of Appeal; and Leslie A. Barry for Defendant
and Appellant.

                        Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County
Counsel, for Plaintiff and Respondent.

                        No appearance for Minor.

*               
*                *

>Introduction

T.L.
(Father) appeals from the juvenile court’s jurisdictional order finding his
daughter, A.L., comes within the provisions of Welfare and Institutions Code
section 300, subdivisions (b) and (d), from the dispositional order
declaring A.L. to be a dependent child of the juvenile court, and from the
custody order granting A.L.’s mother (Mother) sole legal and physical custody
of A.L.href="#_ftn1" name="_ftnref1" title="">^[1]  The juvenile dependency petition alleged that
Father sexually abused A.L. on several occasions.

A.L.,
who was born in 1995, is autistic.  It
has been reported that she functions at a third grade to sixth grade level,
attends special education classes, and “excels at comprehension.”  A.L. cannot speak.  She communicates through an iPad by typing
one letter at a time, often with facilitated communication, which is “a process
by which a facilitator supports the hand or arm of a communicatively impaired
individual while using a keyboard or typing device.”  (Am. Psychol. Assn., Resolution on
Facilitated Communication (Aug. 14, 1994)
[as of July 29,
2013] (APA Resolution).)  By means of
typing on an iPad, it was communicated that Father had inappropriately touched
A.L.

At
the core of this appeal is Father’s challenge to the reliability of
communications attributed to A.L. using various degrees of facilitated
communication.  Father contends A.L.’s
facilitators—not A.L.—were the source of the allegations of sexual abuse made
against him, the juvenile court denied him the means by which to test the
reliability of those communications, and A.L., though described as “extremely
bright,” has never had her intellectual and cognitive level or communication
skills tested.  In making this challenge
to the reliability of the communications of sexual abuse, Father asserts three
points of error:  (1) the juvenile
court erred by denying his motion to have A.L.’s cognitive, verbal,
developmental, and communications skills evaluated by his expert; (2) the
juvenile court erred by overruling Father’s objections to hearsay statements
attributed to A.L., contained in the social services agency reports; and
(3) the juvenile court erred by finding that A.L. was unavailable as a
witness.

We
conclude the juvenile court did not err in any of the challenged rulings; on
the contrary, the court did a commendable job in making difficult decisions in
a sensitive and fair manner.  Over the
course of a lengthy jurisdictional/dispositional hearing, the juvenile court
heard testimony from eight witnesses (including A.L.’s facilitators and
therapist), received in evidence eight reports from the Orange County Social
Services Agency (SSA), listened to an audio recording of an interview of A.L.,
during which allegations of sexual abuse were disclosed, and considered
evidence on both sides of the debate over the reliability of facilitated
communication and on its use by A.L.  The
court heard extensive testimony that A.L. would suffer substantial trauma and
possibly inflict injury on herself if required to testify. 

The
juvenile court made thorough and intelligent factual findings.  Those findings are supported by href="http://www.fearnotlaw.com/">substantial evidence and are legally
sufficient to support the court’s rulings. 
We therefore affirm.  In view of
the important issues raised by the evidence, and the legal significance of the
evidence on the rights of A.L. and Father, we review the evidence in detail.

> 

>Facts
and Procedural History

>I.

>Background: 
Facilitated Communication

Facilitated
communication is “a process by which a facilitator supports the hand or arm of
a communicatively impaired individual while using a keyboard or typing
device.  It has been claimed that this
process enables persons with autism or mental retardation to communicate.”href="#_ftn2" name="_ftnref2" title="">^[2]
 (APA Resolution, supra,
[as of July 29, 2013].)

Facilitated
communication has its supporters and its detractors.  Its supporters claim that “[p]ersonal
accounts and qualitative descriptions suggest that messages produced using this
technique may reveal previously undetected literacy and communication skills in
people with autism, and other disabilities.” 
(Am. Speech‑Language‑Hearing Assn., Position Statement,
Facilitated Communication, supra,
[as of
July 29, 2013].)  Critics of
facilitated communication claim: 
“Studies have repeatedly demonstrated that facilitated communication is
not a scientifically valid technique for individuals with autism or mental
retardation.  In particular, information
obtained via facilitated communication should not be used to confirm or deny
allegations of abuse or to make diagnostic or treatment decisions.”  (APA Resolution, supra,
[as of July 29, 2013].)  The
American Speech‑Language‑Hearing Association has taken the position
that “the scientific validity and reliability of facilitated communication have
not been demonstrated to date. 
Information obtained through or based on facilitated communication
should not form the sole basis for making any diagnostic or treatment
decisions.”  (Am. Speech‑Language‑Hearing
Assn., Position Statement, Facilitated Communication, supra.)  Many studies have
been conducted to test the efficacy of facilitated communication and whether
facilitated communications were authored by the subject or the
facilitator.  The results are complicated
and by no means uniform. 

In
this case, the allegations of sexual abuse were communicated by A.L. typing one
letter at a time on an iPad sometimes, but not always, with varying degrees of
assistance from facilitators.  In
challenging the reliability of facilitated communication, Father notes that
“[i]n several high profile cases, the parent was eventually acquitted of
criminal charges when it was determined that the author of the underlying
communications was not the autistic child, but rather, the facilitator, who may
even have been acting unconsciously.” 
(Fn. omitted.)  Father sums up his
position as follows:  â€œWhile it is >not [F]ather’s position that FC
[(facilitated communication)] cannot work for some people, it >is his position that whether it works
for [A.L.] remains a mystery and the only way to find out would be to have her
evaluated, a process which the juvenile court refused to allow.”

>II. 

>A.L.’s Detention and Detention Report

A.L.
was taken into protective custody on October 20, 2011.  SSA prepared a detention report dated
October 25, 2011 (the detention report), substantiating allegations of
sexual abuse.

The
detention report stated:  “On or about
October 19, 2011, [A.L.] disclosed numerous ongoing incidents of sexual
abuse by her father . . . . 
The incidents of sexual abuse include, but are not limited to, [F]ather
orally copulating the child, having the child orally copulate him, and
inserting his penis into the child’s vagina. 
The child could not reveal specific times, dates, or when the abuse
started, but was able to relay that the incidents occurred in her bedroom and
in the bathroom.  The child complained of
vaginal pain and a forensic medical examination was conducted.”

According
to the detention report, A.L. initially disclosed the purported abuse via her
iPad on October 14, 2011.  On that
date, “[A.L.] made gestures for Reporting Party^{[href="#_ftn3"
name="_ftnref3" title="">[3]]} to touch her bare breast.  Reporting Party attempted to explain to
[A.L.] that it was inappropriate for anyone else to touch her breast and child
disclosed at that time that [F]ather has touched her breast.”

On
October 17, 2011, A.L. became upset at school and began hitting
herself.  “Reporting Party asked [A.L.]
what was bothering her and [A.L.] stated that her vagina hurt and she was
ashamed and embarrassed about what [F]ather was doing to her.  [A.L.] informed Reporting Party that [F]ather
has touched her breast and her vagina. 
Reporting Party believes that the touching was skin to skin because
[A.L.] pulled up her bra when referring to her breast. . . . [A.L.]
says that [F]ather occasionally sleeps in her bed, however Reporting Party does not know if there has been vaginal penetra­tion
and Reporting Party did not ask [A.L.]
specifically why her vagina hurt. . . . [A.L.] also indicated that
she has touched [F]ather’s penis and ‘dad feels hard.’  Reporting Party did not know if the touching
of [F]ather’s penis was skin to skin. 
[¶]  [A.L.] says that [M]other is
aware of the sexual abuse and she and [F]ather were arguing about the abuse
this past weekend.  [A.L.] feels that
[M]other believes her when she has disclosed the abuse and that [M]other tries
to help, but cannot.”

According
to the detention report, on October 18, 2011, Cecilia B. was interviewed
at school by senior social worker C.J. Wilkerson, and Cecilia B. told her:  “[I]n the last few weeks, [A.L.] has been
exhibiting acting out behaviors that were atypical for her. . . .
[O]n Friday[, October 14], [A.L.]’s breast had fallen out of her bra, so
[Cecilia B.] put it back in.  A short
time later [A.L.]’s breast had fallen out again so [Cecilia B.] put it back
in.  [A.L.] then took [Cecilia B.]’s hand
and tried to put it on [A.L.]’s breasts. 
[Cecilia B.] told [A.L.] that this sort of touching was
inappropriate.  [Cecilia B.] asked [A.L.]
if anyone had touched her breasts before and [A.L.] said yes, her father.  [Cecilia B.] asked [A.L.] if she touched the
father and [A.L.] said yes.  [Cecilia B.]
asked [A.L.] how it felt, thinking that [A.L.] might be talking about something
other than his penis, but [A.L.] replied ‘hard.’  [Cecilia B.] did not ask [A.L.] further
questions at that time.  [¶]  On Monday, [October 17], [A.L.] told
[Cecilia B.] that her vagina hurt. 
[Cecilia B.] asked [A.L.] if it was about what they had talked about
earlier and [A.L.] said yes.  [Cecilia
B.] did not question [A.L.] further as she did not want to lead [A.L.] and
wanted to consult with her supervisor on what to do next.  [Cecilia B.]’s supervisor, Gina Prado, spoke
with [A.L.] alone and [A.L.] reportedly disclosed that [F]ather had touched her
privates.”

The
detention report stated that Wilkerson interviewed A.L. on October 18,
2011.  Cecilia B. was present during the
interview to facilitate communication with A.L., who was using an iPad.  Later during the interview, Cecilia B. was
relieved by Santiaga Agranowitz, a special education teacher at A.L.’s
school.  During the interview, which
lasted several hours, A.L. typed with one finger, one letter at a time.  The detention report stated that A.L.
“exhibited vocal ticks with head and hand flipping which also slowed the pace
of the interview” and that A.L. “had several, what looked like, self-inflicted
bruised bite marks on both hands on the palm between the index finger and the
thumb.”  Cecilia B. and Mother confirmed
that A.L. had a history of biting herself.  


Wilkerson
asked A.L. questions about the allegations of sexual abuse by using anatomical
drawings.  A.L. was visibly nervous, and
her vocal ticks and hand flapping escalated. 
When A.L. said she was embarrassed, Wilkerson told her that talking
about such things can sometimes be embarrassing, but that nothing she said
would embarrass Wilkerson.  A.L. typed,
“you nice,” and became more relaxed. 
Wilkerson then pointed to each private part on the drawing of a girl and
asked A.L. if anyone had touched her on those parts.  When Wilkerson pointed to the breasts and the
vagina, A.L. said, “yes, dad.”  Wilkerson
then pointed to the private parts on an anatomical drawing of a boy and asked
A.L. if she had touched anyone on those parts. 
A.L. said, “[y]es.  Dad.”  Wilkerson asked where this occurred, and A.L.
replied, “[i]n restroom.”  Wilkerson
asked what she and Father were doing, and A.L. replied that Father helped her
in the shower.  A.L. added, “[a]dults do
this.  You know what I am going
respond?  He is an adult and I am his
daughter.  He not nice.  He touches.” 
When Wilkerson asked A.L. to relate exactly what happened, A.L. replied,
“[h]e put lip.  No I don’t want him to
get angry.”

At
this point, Agranowitz replaced Cecilia B. 
Agranowitz supported A.L. by holding her shirt at the shoulder and
encouraged her to type by saying, “[f]inish your thought.”  According to the detention report, “[t]here
was no coaching in [A.L.]’s responses.” 

After
a break, the interview resumed.  The
detention report stated:  “Wilkerson
asked [A.L.] if she remembered what they were talking about before the
break.  [A.L.] stated, ‘I just want to
stop.  He kids me about feel his penis
but not fun.’ . . . Wilkerson asked [A.L.] again if she in fact
touched [F]ather’s penis and [she] replied, ‘[y]es, ok.  I am his daughter, not his
mistress.’. . . Wilkerson asked if [M]other knew about the touching
and [A.L.] replied ‘[n]o.  I don’t
think.  He is good at hiding it.  I just go embarrassed.  I really love my parents.’. . .
Wilkerson asked [A.L.] if she touched [Father’s] penis on accident or on purpose
and [A.L.] replied, ‘I did not do it on accident.  He undress. 
I mound (the child was unable to explain the meaning of this word) you
mean.  Ok.  Kiss in the mouth n (and) on
penis.’. . . Wilkerson explained that she wanted to get it right and
asked [A.L.] if she kissed her father on his penis.  [A.L.] replied, ‘[y]es.  Embarrassed.’”

In
response to other questions asked by Wilkerson, A.L. said, “[i]t was his idea,”
she had done so “[m]any times,” they were both “[r]eally naked,” Mother was
“not in house,” Father touched her vagina with “lips” and with “[h]is penis,”
Father “had plastic glove,” and Father “put penis inside my vagina.”  A.L. said that when she kissed Father’s
penis, there was “[b]ad taste.” 
Wilkerson later asked A.L. if everything she had disclosed was true, to
which A.L. replied, “[y]ou don’t believe me? 
Hope you believe me.”  When asked
what she thought should happen to Father, A.L. replied, “[g]o to jail.”

According
to the detention report, later on October 18, A.L. underwent a forensic
medical examination at Anaheim Memorial Regional Medical Center.  She did exceptionally well and completed the
exam without incident.  

Wilkerson
also interviewed Mother on October 18, 2011.  Mother said, “of course,” she believed her
daughter, but she did not believe Father was capable of sexually abusing
A.L.  Mother told Wilkerson she is very
close with A.L. and that if anything was happening, A.L. would have told her.

Wilkerson
interviewed Father by telephone on October 20, 2011.  He denied touching A.L. or physically abusing
her, did not know the source of her ideas, and stated A.L. has a vivid
imagination.  Two days earlier, Father
had spoken with three investigators from the Orange County Sheriff’s Department.  Father admitted to them he showered with A.L.
about two to three times a week and had done so for “as long as he can
remember.”  Father said that he and A.L.
practice the “hand over hand method” to wash A.L., i.e., he puts soap or a
washcloth in A.L.’s hand, then places his hand over her hand to assist her in
washing.  Father stated that sometimes he
is naked and sometimes he wears shorts when he showers with A.L., and, on
occasion, stands outside of the shower while helping her wash.  Mother also helps A.L. wash in the same
way.  Father was adamant that he does not
touch A.L. in a sexual manner.  He
acknowledged that showering with A.L. may be inappropriate, but insisted that
it was not sexual.  He showed the investigators
the shower where he usually showers with A.L. 
The investigators noticed the shower appeared to be extremely small, and
one investigator observed, “if he and I got into the shower, there would be no
way our bodies would not touch or graze one another.”

At
a team decisionmaking meeting in October 2011, Mother and Father reported
that A.L., though unable to speak, “is very smart and is able to communicate
non‑verbally with them.”

>III.

>The Juvenile Dependency Petition and
Detention Hearing

A
juvenile dependency petition (the Petition) was filed on October 24,
2011.  The Petition alleged one count
under section 300, subdivision (b) (failure to protect) and one count
under section 300, subdivision (d) (sexual abuse).  Under both counts, the Petition alleged:  “On numerous unspecified dates, [A.L.]
. . . was sexually abused by [F]ather . . . .  The incidents of sexual abuse include, but
are not limited to [F]ather fondling [A.L.]’s breasts and vagina, having [A.L.]
fondle his penis, [F]ather orally copulating [A.L.], having [A.L.] orally
copulate [F]ather, and inserting his penis into [A.L.]’s vagina, causing [A.L.]
to suffer pain, fear, and humiliation.” 

At
the detention hearing on October 25, 2011, Father’s appointed counsel
invoked Father’s Fifth Amendment rights for all purposes, but represented that
Father would talk to the social worker about visitation.  On the basis of the detention report, the
juvenile court ordered A.L. detained, but released her to Mother.  The court ordered visitation with Father, up
to once a week for one hour, with a therapist in a therapist’s office.  The court also issued a temporary restraining
order against Father, requiring him to move out of the family home and to stay
at least 100 yards away from A.L., her residence, and her school.

>IV.

>SSA’s Jurisdiction/Disposition Report

The
jurisdiction/disposition report, dated November 28, 2011, stated that
social worker Jake Michel interviewed A.L. at school on November 17, 2011,
during which Cecilia B. assisted A.L. on the iPad.  A.L. typed “yes” when asked if she wanted to
have a visit with Father and nodded her head “yes” when asked if she wanted
someone present when she visits Father. 
She then typed, “dad is nice” and “yes” when asked if he is different
now, and typed, “tyes” when asked if she had talked to Father.  When asked if she wanted him to come home,
she nodded “yes” and typed, “iw are A family” and “[I] want dad jto come
hhomee.”  When asked if she will feel
safe if Father returned home, she typed, “idk.” 
She again confirmed she had told Wilkerson the truth; however, she
appeared to become upset, so Michel changed the subject.

On
November 1, 2011, Mother informed Michel that she was looking for an
attorney to file for divorce because “I believe my daughter.”  Mother reported that when, a few days
earlier, A.L. had asked to visit Father, Mother replied, “I have to keep you
safe,” whereupon A.L. hugged Mother and (according to Mother) said, “[h]e
([F]ather) made me do things, which were her words.”

According
to the November 28 SSA Report, a face‑to‑face interview
between Mother and Michel took place on November 17, 2011.  In the interview, Mother told Michel that
“[A.L.] is confused because she wants her father to come home, but she also
recently informed her speech therapist that ‘he ([F]ather) should be slapped’
and ‘[t]his is her father, she loves her father.’  Mother added that ‘[A.L.] knows everything
about it was wrong.’”  When asked if A.L.
had had any contact with Father since she was detained, Mother replied, “[o]h,
absolutely not.”

Mother
stated there had been a lack of sex and intimacy in her relationship with
Father since A.L. was conceived.  Mother
acknowledged she knew that Father and A.L. showered together, that Father and
A.L. saw each other naked, and that it was not appropriate for them to do
so.  Mother said that when she gives a
shower to A.L., she never touches her body and she usually just gives her
verbal directions.  Mother considered it
odd, once she thought about it, that A.L. needed two showers a day, and
mentioned that she would come home and find Father washing sheets as if A.L.
had wet her bed, which Mother said A.L. rarely does.

Although
Mother told Michel that “[A.L.] is not someone who lies,” she did not believe
the sexual abuse allegations could be true and had no idea “where would she get
these ideas.”  Mother then said that
based on A.L.’s actions and reactions, she had no doubt that A.L. was sexually
abused by Father, “[n]ot one single doubt.” 
When Mother was told there was no forensic evidence to support the
sexual abuse allegations, she said, “[h]aving been molested as a child, it’s so
irrelevant.”

>V.

>Father’s Motion for an Expert Evaluation of

A.L. and Her Facilitators

In
March 2012, Father filed a motion, pursuant to Evidence Code section 730,
for an order that A.L. and her facilitators participate in an expert evaluation
conducted by Father’s speech pathology expert. 
Father argued that research on facilitated communication suggested
A.L.’s claims of sexual abuse might be false and statements attributed to A.L.
“may be nothing more than writings by the facilitator.”

In
opposing the motion for an Evidence Code section 730 evaluation,  Mother submitted research on facilitated
communication and declarations by Cecilia B. and Agranowitz, both of whom
stated they did not type for A.L., move her hand on the keyboard, finish her
sentences, or influence her communications. 
The juvenile court denied the motion in April 2012 and, in May, denied
Father’s motion for reconsideration. 
Father’s motion, Mother’s opposition to it, and the court’s ruling are
explained in detail in part I.A. of the Discussion section.

> 

>Jurisdictional/Dispositional
Hearing

>I.

>The Juvenile Court Orders
(1) Excluding A.L. as a Witness and (2) Denying Father’s Motion to
Exclude Hearsay Statements in SSA Reports

The
jurisdictional/dispositional hearing was conducted over several days commencing
on June 7, 2012.  On the first day
of the hearing, Father’s counsel expressed his intent to call A.L. as a witness
to testify.  Referring to the typed
communications made on A.L.’s iPad, counsel argued:  “[T]he burning question is whose
communication is that?  Is that the
communication solely of the minor?  Is it
the communication solely of the facilitator adult, or is it a combination of
the two?”  The only way to answer those
questions, counsel argued, would be to have A.L. testify in a setting and in a
manner that would be least injurious to her.

On
July 30, after hearing testimony from eight witnesses, whose testimony is
described below, and receiving an offer of proof from Father, the juvenile
court ruled that A.L. was unavailable as a witness.  The court stated:  “[R]equiring [A.L.]’s testimony would cause
an unacceptable level of psychological stress and self‑injurious behavior
to the child.  The possible benefit that
would result from [A.L.]’s testimony would not justify the physical and
emotional harm it would cause.”

On
June 13, 2012, Father filed a motion, pursuant to section 355, objecting
to hearsay statements in the various SSA reports, specifically, to statements
attributed to A.L. regarding alleged sexual abuse.  He argued there was a dispute as to A.L.’s
mental competency and educational level, and “the use of facilitated
communication, under any circumstance, brings with it the potential for
facilitator cuing or influence.”  The
juvenile court denied the motion on July 26.  Father’s motion and the court’s ruling are
explained in detail in part II.A. of the Discussion section.

>II.

>Evidence at the
Jurisdictional/Dispositional Hearing

At
the jurisdictional/dispositional hearing, the juvenile court received in
evidence the November 28 SSA Report and other SSA reports dated
December 21, 2011, January 18, 2012, February 16, 2012,
March 8, 2012, March 26, 2012, April 30, 2012, May 16,
2012, and June 7, 2012.  The court
heard testimony from (1) Michel, (2) speech and language pathologist
Darlene Hanson, (3) psychologist Rodric Rhodes, Ph.D., (4) Mother,
(5) Cecilia B., (6) Agranowitz, (7) Wilkerson, and (8) vice‑principal
Virginia Prado.

A.

>Witness Testimony

1.  Michel

Michel testified he had been assigned to the case in October 2011,
following the detention hearing.  He had
met with A.L. 10 times, during about five of which she used an iPad to
communicate.

With Cecilia
B.’s assistance, Michel interviewed A.L. at her school on October 17,
2011.  He did not interview her about the
specifics of the allegations but asked her if the statements she made to
Wilkerson were true.  A.L. said they were
true.  Cecilia B. held the keyboard vertically
in front of A.L., who typed with one finger. 
When A.L. responded to Michel’s questions, Cecilia B.’s hands were not
touching the keys of the keyboard and nobody was touching A.L.’s arm.  Sometimes A.L. responded by typing a “Y” or
nodding her head.  She never used the
words “mistress,” “vagina,” or “penis” during the interview.  After about five minutes, A.L. got up to walk
around for no more than two minutes.

On the same day
as the interview at school, Michel interviewed A.L. at her home.  During the interview, Mother held the
keyboard in a manner similar to that used by Cecilia B., and A.L. typed with
one finger.  Michel did not recall that
Mother held A.L.’s arm or hand.  Mother
assisted A.L. only by saying, “finish your thought.”  At times, A.L. would provide a response that
was unintelligible or not recognized as a response; after being prompted to
continue her thought, she would continue typing. 

Michel
testified he has monitored some of A.L.’s weekly monitored visits with
Father.  Michel has heard from the other monitors or from Mother by voice mail messages
that the visits have been positive, although Mother told him that A.L. had
diarrhea following two of the visits. 
One of those two visits was on the same date that Mother had had an
automobile accident.  A.L. has
communicated to Michel that she wants to visit Father.

2.  Darlene
Hanson

Darlene Hanson testified she is a licensed
speech and language pathologist and is a “trainer of facilitated
communication.”  At the time of the
hearing, she was employed by Whittier Area Parents’ Association for the Developmentally
Handicapped as director of communication services.  Hanson met A.L. when she was eight or nine
years old and became her primary therapist in 2009.  Since 2011, Hanson has seen A.L. once every
other week for one hour. 

Hanson described “facilitated” communication
as providing physical support to the person who is trying to communicate.  She explained:  “They generate their own ideas, but we give a
resistance to their movement and rhythm. 
So I’m actually like a pulley pulling back.”  Hanson explained that some people with autism
have difficulty with what is called the “proprioceptive system,” which is “how
we know where our body is in space.” 
Physical support at the forearm or elbow is given in the form of
resistance.  “I’m actually like a
pulley,” Hanson explained, “I’m pushing up to the sky as a person pushes down
to a display. . . . [A]s they do that, it tells their body where
their arm is in space.”  As the person
learns to gain more control of his or her body, the amount of resistance is
decreased. 

Hanson works with A.L. on her ability to
communicate with an iPad.  Although the
iPad has a touch screen, which A.L. sometimes uses, she generally uses a
wireless keyboard.  She uses an
application called “assistive chat,” by which a device speaks out loud what she
has typed.  A.L. can communicate without
the physical support, and, Hanson testified, “[w]hen she’s typing I am not
touching her hand that is typing or arm . . . that’s typing.”  Hanson must hold the display board but does
not have to touch A.L.  Hanson places her
hand on Amanda’s back to provide “confidence and assurance.” 

A.L. needs a trained communication partner.>  A communication partner is not supposed to
assist the person in finding the letter to type.  A.L. is not always able to focus and communicate
with Hanson.  Sometimes, A.L.
demonstrates stress by getting up and pacing, and, if she is upset, her face
turns red.  Other times, if dealing with
a stressful topic, A.L. puts her fist on her chin and she squeals.  A.L. has also engaged in self‑injurious
behavior, such as pinching and slapping herself, and has tried to bite others.

Over an objection from Father’s counsel,
Hanson testified it would be stressful for A.L. to testify in a courtroom, but
she could, perhaps, testify in a smaller space. 
In response to a question whether testifying would be harmful to A.L.,
Hanson testified that if A.L. is stressed, she could engage in self‑injurious
behavior and that problems could arise if four people were to ask A.L.
questions.  A better procedure would be
for one person to ask her well‑crafted questions in a neutral setting,
with a neutral communicator working with her. 
Hanson believed, but was not confident, that A.L. could effectively
communicate in the proper “structured setting” in which she would get to know
the facilitator and other participants. 
However, if A.L. became emotional she would not be able to communicate,
and it is not always possible to predict when A.L. is going to “act out.” 

Hanson described A.L. as having a “severe
communication impairment” and as being “a non‑verbal communicator.”  Using an iPad or letter board display, A.L.
is “able to create language and engage in a conversation” and can “create
sentences that are literate and intelligible.” 
A.L. communicates at the conversational level, which means that she is
able to generate complete sentences, make comments, ask questions, and initiate
her own ideas.

Sometimes, A.L. has difficulty coming up with
the word she is trying to express; in those situations, A.L. might “talk around
it” or will describe a situation rather than use a particular word.  Sometimes, A.L. types letters that do not
form a word.  In those situations, Hanson
will tell A.L. to “back up and start over again.”  Other times, A.L. types letters that do form
words, but the words do not make sense. 
In those situations, Hanson will tell A.L. to “keep going” and try to
figure out what she is communicating, or will tell A.L. she will have to “say
it again or a different way.”  

Hanson testified A.L. uses the same
vocabulary as any student of her age, except at times she has a problem finding
the right word.  A.L. usually is not
dependent on the facilitator to assist with spelling errors.  Hanson is satisfied that A.L. has the
appropriate motor control to effectively communicate with her, but emphasized
that she cannot assume A.L. would be able to effectively communicate with
everyone.  A.L. has to know the
facilitator and that the facilitator can effectively support her.  Hanson does not believe A.L. is mentally retarded;
however, Hanson does not know A.L.’s intellectual level.

3.  Rodric Rhodes, Ph.D.

Rodric Rhodes, Ph.D., testified he is a
licensed psychologist and licensed clinical social worker with subspecialties
in autistic spectrum disorders and developmental disabilities.  He has been providing psychotherapy services
to A.L. since December 2011 and has had 21 sessions with her.  His rapport with A.L. “started off good” and
has improved over time.  In the previous
few sessions, A.L. began to talk about the allegations of sexual abuse.href="#_ftn4" name="_ftnref4" title="">^[4]

Mother attends the sessions with Dr. Rhodes and acts as A.L.’s prompter or communication
facilitator.  During the sessions, A.L.
uses an iPad with voice output software and an external keyboard.  She types with her index finger, and
sometimes Dr. Rhodes asks
her to repeat what she has typed.  Dr. Rhodes testified that A.L. appears to be using her
own volition to create letters on the keyboard; however, there were times when
she typed letters after receiving verbal prompts to answer the question.  Although A.L. does not require physical
support at every session, Mother sometimes touches A.L.’s arm and provides what
Dr. Rhodes called
“facilitated support” to organize her body. 
Dr. Rhodes observes
the physical interaction between A.L. and Mother “to make sure that [Mother]
isn’t moving the board around” and believes A.L.’s communications are “valid”
and “not influenced or not manipulated by [M]other.”  He has had no concerns whether the communications
coming from A.L. were her own words or thoughts.

According to Dr. Rhodes, A.L. communicates effectively at a
relatively high level of expression of thought and feelings.  She has had “behavioral outburst[s]” during
sessions with him and has vocalized sounds and screams, become aggressive
toward herself, and once tried to scratch and pinch him.  On that occasion, A.L. remained so agitated
that she was unable to complete the session.

When asked about A.L.’s motor control and
communication skills, Dr. Rhodes testified:  “I would say for the
purpose of . . . communication, I believe . . . compared to
other people [who] don’t have autism, I would say she has impaired motor
control.  But I would say for her, it’s
over years of practice of communication. . . . [F]or her to be able
to get her finger and her arm and her eyes focused and her body organized
enough to point to the different letters and formulate the different words and
thoughts . . . for the great majority of the time without any sort of
physical prompting by [Mother], who’s sitting next to her, that’s very
impressive for the people [whom] I work with [who] are on the autism spectrum
and even within the sample of people who use these communication devices.  [¶] 
It’s much . . . rare[r] that someone’s able to independently
type without any physical prompting or physical support.”  Sometimes, A.L. will need “physical prompting
to help either provide some resistance that can help her body to be more
arranged in some fashion. . . . [I]t can be a stabilizing kind of
organizing support that can help the person get their mind and their body more
connected.”



src="https://www.fearnotlaw.com/wsnkb/G047470_files/image001.gif" align=left>In
Dr. Rhodes’s opinion, testifying in court would be very stressful for A.L.
and would not be in her psychological well‑being.  Dr. Rhodes testified:  “[T]hat
subject matter [(sexual abuse)] and this whole court process, I believe, is one
of the sensitive, heightened potential for stress, reaction.  It’s one of the stressors.”  He believed A.L. should not be involved in
the court proceedings and his preference would be for A.L. to be as “far away
from this process as possible.”  If
required to testify, A.L. might engage in self‑injurious behavior.

When
informed of A.L.’s lengthy interview on October 18, 2011, Dr. Rhodes
testified he did not believe A.L.’s ability to respond to questions regarding
sexual abuse in that interview would lead to the conclusion that A.L. was
comfortable in doing so.  He
testified:  “I believe that there could
be other interpretations of what’s leading to her responding.  It could be that she’s comfortable with the
topic.  It could be that she’s
comfortable with the participants.  It
could be that she’s keeping it altogether temporarily because of the judge
ordering her to participate and knowing that she has to and then there could be
subsequent acting out. . . . I wouldn’t feel comfortable stating
definitively that . . . she’s comfortable.” 

If
A.L. had to testify, Dr. Rhodes believed it would be best for her to do so
in an office setting surrounded by familiar people.  He testified: 
“[I]f she suspected that the questions were ones that, for whatever
reason, [she] found anxiety‑producing and she’s required to answer a
question that she found anxiety‑producing, for whatever reason, I think
it would be highly likely that she would become stressed and anxious.  And then she would likely exhibit those kinds
of behavior[] that we discussed earlier.” 
Dr. Rhodes suggested that A.L. be prepared in advance for the
questions and be questioned in a “not too aggressive manner.”  But even if an ideal environment in which to testify
were created, it would be possible, and perhaps even likely, A.L. would not
open up about the sexual abuse allegations if the facilitator was a stranger.

4.  Mother

Mother testified that A.L. did not “display
any episodes . . . that were out of the norm” immediately after the
interview and physical examination on October 18, 2011.  But, within a few days, A.L. had “a presence
about her,” indicating she was “exuding an emotion.”  Mother had a talk with A.L., who communicated
that she was upset and ashamed and “felt horrible.”  A.L. mentioned “the nasty things that
[F]ather did to her and that [F]ather made her do.”  Within a half hour of the discussion, A.L.
physically attacked herself and Mother. 
These outbursts recurred about twice a week.  Sometimes following an outburst, A.L. was
able to communicate the reason why she was upset.  After one physical outburst, she said the
reason was “Dad’s not there anymore.”

A.L. is aware of the court case and, in the
previous week, had typed, “what is the judge going to make us do?”  When Mother inadvertently said she would be
in court the next day, A.L. became agitated and typed, “I’m afraid I’ll be
taken away from you.”  Mother told A.L.
that she absolutely would not be taken away, everyone knows they are good for
each other, and “we’ll stay together.” 
A.L. arose from the chair, slapped herself, and screamed.  Then, she attacked Mother with her hands and
her mouth open, at which point Mother demanded that A.L. go to her room.  She came out of her room three times, still
slapping, and, each time, Mother demanded that she go back to her room.  When A.L. became quiet, Mother went into her
room and saw her lying on her bed.  Her
shirt and blue jeans were covered in blood, her face was black and blue and
swollen, her nose had been bleeding, and her lip had a large cut. 

For Mother to be able to exercise control
over A.L., her medication had to be increased. 
Before the dependency case, A.L.’s physical or emotional spikes were
rare, i.e., once a month for about 30 to 40 minutes, with no physical
attacks.  Usually, her menses would cause
her to react.  Since the dependency case
began, A.L.’s emotional spikes have been more frequent and more severe, she
cannot be talked down to a calmer state, and she had bitten Mother two dozen
times.  “It had gotten so bad,” Mother
testified, “that I honestly did not know if I could continue to act in [A.L.]’s
best interest and my best interest. . . . [S]he was beating me up
every single week.”  A.L.’s behavior will
spike in response to anything related to the court case and to interaction with
Father; according to Mother, A.L. has “a huge fear of the court, and she has
overwhelming shame about what happened.” 


Three weeks earlier, when the sexual abuse
allegations were discussed in a session with Dr. Rhodes, A.L. reacted by hitting herself and
attacking Dr. Rhodes and
Mother.  Dr. Rhodes was not able to calm A.L., so he and Mother
had to leave the room.  The only time
A.L. behaved violently in therapy was when the subject of Father and the sexual
abuse allegations were raised.  Mother
has been told that since the dependency case began, A.L. routinely acts up at
school and often three adults are needed to hold her down and keep her safe.  The need for restraint increased from twice
in five months to about once every eight days, and A.L.’s bedwetting, once
rare, has increased.

Mother is opposed to A.L. testifying.  Mother testified:  “I feel strongly along the lines of what
Darlene Hanson had put forth.  [A.L.] is very
emotional. . . . She needs to have a comfort level in her
surroundings as well as the person she has as a communicating partner.  And, additionally, it’s a topic which is
emotionally difficult for her, actually, devastating.”  A.L. had expressed fear of coming to court
and fear that “everyone would know what dad did to her.”  Mother could not state, however, “[a]s a
solid hard fact” that A.L. would be harmed if she testified.  A.L. visits Father once a week.  She sometimes becomes agitated or wets her
bed after a visit.  Mother believed
wetting the bed is a way for A.L. to lash out when she is angry at someone.

Mother has never had A.L. assessed to measure
her intelligence quotient, does not know what her intelligence quotient is, and
does not know the grade level or age at which she functions.  Mother described A.L.’s vocabulary as
“typical” and stated A.L. spells better than she does. 

Mother described A.L. as a very honest
girl.  At first, Mother did not believe
the allegations of the Petition; she did not believe the man whom she had known
for over 20 years could have done such a thing. 
Her opinion has changed, and she is now convinced that Father violated
A.L.  Mother related a conversation in which
A.L. asked when she could see Father, and Mother replied, “I need to keep you
safe.”  A.L. said, “I know it’s because
of those nasty things he did to me and the nasty things he made me do to
him.  I feel horrible.  I feel ashamed.  I feel guilty.”  A.L. made those communications using the
iPad, while Mother provided physical support.

During a session in Dr. Rhodes’s office sometime after the October 18,
2011 interview, A.L. communicated she knew that Dr. Rhodes and Mother wanted to talk about Father, but
A.L. did not want to do so.  Mother asked
A.L. why she was able to talk about Father with Wilkerson, whom A.L. did not
even know, and A.L. replied, “because I wanted it to stop.”  When A.L. asked Mother when they would be a
whole family again, Mother told her, “we are a whole family” and if Father came
back, “he would keep doing the same things to you.”  A.L. said, “we’re fine the way we are.”

5.  Cecilia B.

Cecilia B. testified she is employed with the
Speech and Language Development Center, which helps children and adults learn
how to better communicate.  At the Speech
and Language Development Center, Cecilia B. works as an American Sign Language
interpreter, assists students who use devices for communication, and teaches in
the classroom.  She has worked in this
field for 17 years and has been at the Speech and Language Development Center
for seven years. 

Cecilia B. testified she had worked with A.L.
off and on for nine years, but had been working with her exclusively since just
a few weeks before the October 14, 2011 disclosures.  Cecilia B. works with A.L. every Monday through
Friday from 8:30 a.m. until 2:30 p.m., and assists her with
schoolwork, language arts, social studies—“all the regular typical high school
work that you do”—and also goes with her to student counsel, girls’ group
meetings, and speech therapy.  A.L. has a
regular schedule of classes, much like any other high school student.  Cecilia B. did not know the level of A.L.’s
reading and comprehension or A.L.’s intelligence quotient, but testified A.L.
“excels” and described her as “brilliant,” “smart,” and “very bright.”

Cecilia B. explained that A.L. communicates
by typing on a keyboard connected to an iPad. 
Cecilia B. physically assists A.L. in communicating by placing a hand
under A.L.’s elbow:  “[T]he touch seems
to help the connection to follow through with the thought.”  When Cecilia B. was asked if she physically
assisted A.L. in “actually forming the letters on the keyboard,” Cecilia B.
testified:  “No.  No.  We
don’t do anything like that.  In fact, I
follow her lead.  When she’s typing I
follow her lead.”  Cecilia B. testified
that, by using the described communication method, A.L. is able to type
complete sentences, answers, and “details that I didn’t even catch.”  Cecilia B. testified she has never
physically typed a key on the keyboard and has never moved A.L.’s hand on the
keyboard in order to help A.L. finish a thought.

Cecilia
B. described what occurred on October 14, 2011, as follows:  She took A.L. into the school restroom
because A.L.’s bra was not on properly and her breast had become exposed.  While she and A.L. were in the restroom, A.L.
“lifted up her blouse and took—lifted up her bra, and she grabbed my hands, and
she wanted me to touch her breasts.” 
Cecilia B. told A.L., “that it wasn’t appropriate, that no one should be
touching her breasts except for her and she needed to do that in the privacy of
her home.”  Upon returning to the
classroom, Cecilia B. typed on the iPad what she had told A.L. in the restroom
in order to reinforce the message.  In
response, A.L. typed, “my dad touches my boobs.”  When A.L. made this communication, Cecilia B.
probably was supporting A.L.’s elbow, but did not assist her in identifying the
letters or words.

Cecilia
B. asked A.L. if Mother knew that Father touched her breasts.  A.L.’s answer was vague, something to the
effect of “she’s around.”  To determine
A.L.’s feelings, Cecilia B. also asked A.L. if she liked it, and A.L.
responded, “yes.” 

Cecilia
B. testified that A.L.’s disclosure was very upsetting, and “just the thought
of having to deal with somebody that even allegedly was touched . . .
frazzled my mind.”

Cecilia
B. was present at the interview on October 18, 2011, but her only
participation was to explain to A.L. what was going to happen.  Soon after Cecilia B. arrived at the
interview, Agranowitz arrived to assist A.L. 
Cecilia B., though hearing impaired, did hear Agranowitz say such things
as, “I’m going to fix this,” “can I just erase this because [it] kind of
doesn’t make sense to me,” or “I’m going to erase that letter because I don’t
think it goes here.”  Cecilia B.
explained the iPad is “highly sensitive” and could produce a series of letters
by accident, so that when typing a word, “you may end up putting a couple ‘r’s’
and ‘x’s’ in this just by accident.  And
this was where all these corrections are coming from.” 

Although the interview lasted nearly three
hours, A.L. tolerated it well. 
She did not resist, and, though appearing apprehensive, was not scared
and did not act out.  A.L. can become frustrated and react
physically because she cannot speak; however, Cecilia B. did not observe A.L.
become frustrated during the interview.

Cecilia
B. described A.L. as “blatantly honest.” 
Until October 14, A.L. had never disclosed “anything of this level
of unusualness” and had never mentioned anything about trouble at home or with
Father.  But, once before, within the month that
Cecilia B. became A.L.’s aide, there was a similar incident in which A.L. had
exposed her breasts.  A.L. had seen
another student expose herself in a similar fashion, and Cecilia B. believed
she is able to parrot the conduct of another person.  Cecilia B. believed any teenager, including
A.L., is capable of manipulating situations. 
Never before had Cecilia B. seen A.L. use the words “vagina” or “penis”
on the iPad, and was surprised when she heard those words being attributed to
her.

6.  Agranowitz

Agranowitz
testified she is a classroom teacher at the Speech and Language Development
Center, where she works with students between the ages of 14 and 22, in the
areas of employment, functional academics, and life and social skills.  Her students have several different kinds of
disabilities, including autism.  She
began working in speech and language in 1986, left the field to pursue other
opportunities in 1995, returned to the field in 2005 as a transition
specialist, and became a classroom teacher in 2006.  She assists students with supported
typing. 

Agranowitz
does not teach A.L. directly and does not have a close relationship with
her.  Prado asked her to assist A.L. in
typing for the interview on October 18, 2011.  Agranowitz testified she did not know the
subject of the interview until she walked into the interview room.  Agranowitz had assisted A.L. with
communicating on three or four prior occasions for periods of 10 to 15 minutes
or a little longer. 

During
the interview, A.L. typed directly on the face of the iPad rather than on an
external keyboard.  Agranowitz could not
directly see the face of the iPad from where she was seated, but did look at it
a couple of times.  When A.L. was asked a
question, she usually typed her response directly on the face of the iPad
without assistance, and occasionally moved her elbow toward Agranowitz, who
would touch A.L.’s elbow or back of the arm. 
Agranowitz demonstrated how she used her fingers with the palm face up
under the bend in the elbow, or used a pinching motion with her index finger
and thumb on top of the elbow.  “[T]he
technique is,” Agranowitz testified, “basically, giving support away from the
keyboard so when she makes the movement down, she goes purposely to a specific
key that she wants to press.”  At times,
Agranowitz placed her hand on A.L.’s shoulder and pressed down to give A.L.
some sense of pressure.

During
the interview, Agranowitz did not direct A.L.’s arm or finger to any particular
letters.  If A.L. typed something that
did not make a complete comprehensible word, Agranowitz would say, “can you
tell me better or can you type that again,” and would direct A.L. to erase what
she had typed.  A few times, Agranowitz
told A.L. she had misspelled a word, and, a couple of times, Agranowitz deleted
a word.  Agranowitz had seen A.L. make
similar errors on prior occasions.  When a misspelling or extra letter was typed,
Agranowitz would direct A.L. to backspace and delete the extra letter.  When A.L. stopped typing, Agranowitz would
say, “is that what you wanted to say; finish your thought,” as a form of
encouragement.  In one instance when
Agranowitz told A.L. to “finish your thought,” Agranowitz said, “can I just
erase this because [it] kind of doesn’t make sense to me.”  In response, Wilkerson said, “if you know
that she’s made the—yeah.  Go ahead and
correct it.” 

Agranowitz
testified she never touched the face of the iPad to type a letter and never suggested to A.L. how to answer a
particular question or to use a particular word.  Agranowitz testified, “I did not influence
[A.L.],” “I did not type for [A.L.],” and “I wasn’t making my own statements or
adding letters to that pad.”  Agranowitz
only provided support and did not control A.L.’s arm. 

According to Agranowitz, the interview
started around 2:00 p.m. and lasted roughly five hours.  She did not recall that A.L. became
frustrated or upset during the interview, that A.L. cried or hit herself, or that
A.L. had to be restrained.  A.L. stayed
focused and her answers were related to the questions asked.  Oddly,
it seemed to Agranowitz, A.L. appeared to be happy and was smiling during the
interview. 

During her testimony, Agranowitz was handed a
copy of a declaration she had signed on April 10, 2012, and was asked to
look at it to refresh her recollection of its contents.href="#_ftn5" name="_ftnref5" title="">^[5]  In the declaration, she had stated that at
the time of the October 18, 2011 interview, she had no knowledge of A.L.’s
original disclosure to Cecilia B. and no knowledge of the information to be
elicited at the interview.  Father’s
counsel asked Agranowitz whether before the interview on October 18, she
had met with Prado, A.L., and a counselor to talk about whether Father had
touched A.L.  Agranowitz replied she had
not; she did not recall talking to Prado directly or indirectly “about that
stuff” and “[t]he truth is I don’t remember any conversation on that particular
day.”href="#_ftn6" name="_ftnref6" title="">^[6]

Agranowitz acknowledged that, at some point
in the interview, she said she was going to fix what A.L. had typed because “I
know what she’s saying.”  When asked how
she knew what A.L. was saying, Agranowitz testified she meant to say she knew
what A.L. was typing, not what she was saying. 
Agranowitz also acknowledged the audio recording of the interview
reflected that she stated, “you want me to type this way.”  She did not know what she meant by that
statement, maintained that she was not typing for A.L., and was convinced she
did not “put those words in the i‑Pad.”

Agranowitz insisted she never changed the
“context” of what A.L. had typed and had no personal interest in the case.  Wilkerson did not tell Agranowitz to change
anything A.L. had typed.  Agranowitz
acknowledged deleting some letters, but testified the deletions did not change
the meaning of the communication.

7.  Wilkerson

Wilkerson
testified she is a licensed marriage and family therapist, has a master’s
degree in clinical psychology, and is employed by SSA as a senior social
worker.  She was assigned to A.L.’s case
on October 18, 2011—the date of the interview.

Wilkerson
made contact with A.L. at 1:00 or 2:00 p.m. on October 18.  At the outset, only she, A.L., and Cecilia B.
were present, while Prado was “in and out.” 
At some point, an Orange County Sheriff’s deputy arrived.  At first, Wilkerson conducted the interview
and Cecilia B. assisted A.L. in using the iPad. 
A.L., who was seated to Wilkerson’s left, communicated by typing on the
keyboard on the face of the iPad, which was propped up in front of A.L.

Wilkerson
asked questions, which she described as “open‑ended” and “non‑leading,”
and A.L. responded by typing on the iPad. 
While A.L. typed, Cecilia B. provided physical support, mainly at A.L.’s
shoulder and just below the armpit.  A.L.
“was having a lot of anxiety,” and Wilkerson observed she had muscle tics,
flapped her hands, and shook her head. 
Wilkerson testified:  “Once I
asked a question, she would—in between her muscle tics, she would take her
finger—she had a pencil that she would hold in the palm of her hand to help her
keep the positioning and then take one finger and type one letter at a time.”

Wilkerson
took notes and read A.L.’s responses out loud. 
The interview lasted several hours, and audio recording started after
about 45 minutes.  Most of the words
typed by A.L. made logical sense as responses to the questions asked.  

About
10 minutes into the interview, Cecilia B. left and Agranowitz took her place in
assisting A.L.  Wilkerson testified
Agranowitz supported A.L.’s arm in this way: 
“She held the child—she pulled the child’s shirt up and bunched it up at
the shoulder and just held the shirt to support the child’s arm.”  Some of the words that A.L. typed were
misspelled, and, on several occasions, Wilkerson asked A.L. to clarify what she
had typed.  “I’d ask her, what does that
mean?  Or I’d ask her the question in a
different way to get a different response, and then she would give another
answer.”  

Occasionally,
A.L.’s finger would spasm or slip, and she would type the wrong letter.  When that happened, Agranowitz would delete
the letter.  It did not appear to
Wilkerson the answer was being modified. 
Wilkerson explained:  “The child
has issues controlling her muscles.  And
sometimes you would see her hand flicker, and she would accidently hit a key
that she didn’t mean to hit.  So that
word would be deleted.  And she would be
coached to finish her thought, and then she would either finish that sentence
or just start a new sentence.”  It was
obvious to Wilkerson when A.L. hit the wrong key, “based on her movements, on
her response, on the structure of the sentence.”  A.L. might type four to six words before
hitting the wrong key.  A.L. was not
directed to respond in any particular way, and Wilkerson did not believe that,
by providing physical support, Agranowitz was influencing or modifying A.L.’s
responses.  Wilkerson believed that A.L.
gave valid responses and was “on task.”

Once
Agranowitz replaced Cecilia B. in assisting A.L., Wilkerson wrote down A.L.’s
responses, which were included verbatim in Wilkerson’s report.  Wilkerson testified, in summary, A.L.
disclosed that “[F]ather orally copulated her, had her orally copulate him and
put his penis in her vagina.”

Wilkerson
recalled Agranowitz saying, “okay, I'm going to fix this; here, I know what
she’s saying,” and recalled telling Agranowitz she could make the
correction.  In the middle of the
interview, a sheriff’s department investigator arrived and wrote some questions
for Wilkerson to ask A.L.

Wilkerson
was not informed of A.L.’s intelligence quotient, but knew A.L. “was
functioning younger than her age but at the sixth or fifth—sixth or seventh
grade level, something like that.” 
Wilkerson did not recall a discussion on the topic whether A.L. had ever
used words such as “penis” and “vagina.” 
Wilkerson testified A.L. did type the word “mistress” on the iPad. 

Wilkerson
testified that no one else present during the interview typed a sentence, word,
or letter on the iPad other than the “delete” key.  Wilkerson indicated Agranowitz only touched
the “delete” or “return” key or space bar, and did not recall if Cecilia B. had
done so too.

8.  Virginia
Prado

Virginia
Prado testified she is the vice‑principal of high school transition at
the Speech and Language Development Center, where she has worked for about 30
years.  In September 2011, Prado assigned
Cecilia B. to be A.L.’s one‑on‑one aide.

Prado
first became aware of the allegations against Father when Cecilia B. came to
her and asked her to look at some things A.L. had typed on the iPad.  Cecilia B. did not describe the substance of
the communications.  After looking at the
iPad, Prado asked Cecilia B. if the words could be erased because Prado did not
want anyone else seeing them.  Prado did
not recall whether any sexual words were used or if words were erased at that
time. 

Prado
took the iPad to her office, and there decided she needed to speak with
A.L.  At some point, before Prado spoke with A.L., Cecilia B. told
Prado about the incident in which A.L. exposed her breasts.  Prado met with A.L., Agranowitz, and a
counselor in Prado’s office.  Prado asked
Agranowitz, rather than Cecilia B., to assist A.L. with communicating “[j]ust
to make sure what [A.L.] was saying was real.” 
During the meeting, Prado stated she had noticed A.L. was having a rough
day and asked her open‑ended questions, such as “[i]s there anything I
can help you with.”  Prado did not ask
A.L. questions about the statements made on the iPad and did not ask her a
“sexual question,” but did ask A.L. about possible sexual allegations against
Father.  Prado ended the meeting after
about 15 minutes because A.L. got up and walked around, indicating she was
ready to go back to class.

Prado
testified she assumed the issue of sexual abuse was discussed in the meeting
because “at that point is when we decided that we needed to report.”  After the meeting, Prado decided to let
Cecilia B. make the decision whether to call SSA.  Prado said to Cecilia B., “you know what you
saw, and you know what your responsibilities are, so what is it that you need
to do?”

According
to Prado, A.L. had “meltdowns” on Monday, October 17, and Tuesday,
October 18, 2011.  When A.L. has a
meltdown, “it’s self-abusive where she’s hitting herself in the face or the
head or biting her forearms, hands.”  Prado
was not present when Wilkerson and the sheriff’s department investigators
arrived at the school on October 18 to interview A.L.  Prado did not recall being told why
Agranowitz replaced Cecilia B. as A.L.’s facilitator during the October 18
interview.

Two
sheriff’s department investigators interviewed Prado and Cecilia B. on
October 19, 2011.  Prado recalled
that during this intervi