2. TESTIMONY OF CAROLYN "POLLY" CROWELL

THE COURT: Raise your right hand, state your name and spell your last name.

THE WITNESS: Carolyn A. Crowell, C-R-O-W-E-L-L.

THE CLERK: Do you swear that the testimony you shall give in the case now in hearing shall be the truth, the whole truth and nothing but the truth, so help you God?

THE WITNESS: I do.

THE CLERK: Please be seated.

CAROLYN A. CROWELL, called by the Plaintiffs, having been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. COLES:

Q. Ms. Crowell, you had had your deposition taken by me at my office; is that correct?

A. Yes.

Q. You are the Special Education Director for the Falmouth School District?

A. Correct.

Q. Okay. Your office is directly across from the middle school, which is the 5th and 6th grades?

A. Fifth, sixth, seventh and eighth.

Q. Does the middle school have a playground?

A. Actually, I'm not an expert.

Q. Yes or no, does the middle school have a playground?

A. At this point I can't tell you. There has been a lot of discussion about building a playground and I don't know if they have gotten anywhere with that or not over the summer.

Q. There was an article in the Falmouth newspaper several weeks ago that said that there is no playground and that some community people are getting together to donate sane monies to try to build one; do you remember that?

A. I do know that that's been discussed.

Q. And your understanding is that the only playground for children is located at the shared playground between the Plummer and the Lunt School; is that fair to say?

A. Well, as an old phys. ed teacher I say a playground can be anything from a set of swings to a plain old field because that's where kids play. So I'm not sure what you're thinking of as far as it being a playground.

Q. Swings, slides, teeter-totters, Craze Maze, that's the only place where it is located, is at the Plumier Lunt School; is that correct?'

A. That type of play equipment I would say you're right.

Q. And at the middle school that kind of play equipment to your knowledge does not exist?

A. To my knowledge I know they have been working on it. I don't think -- I don't know whether it is there yet or not.

Q. Ms. Crowell, I want to show you what has been marked as Plaintiff's Exhibit 3 and ask you if you have seen that letter.

A. Yes, I have.

MR. COLES: Move to introduce Exhibit 3.

MS. HEWEY: No objection.

THE COURT: Could you -- just for the record could you identify what the letter is from and from whom to whom?

BY MR. COLES:

Q. It is a November 7, 2003 letter from you to Gayle Fitzpatrick and Charles Rankowski; is that correct?

A. Yes.

Q. Okay. And by that letter you have suspended the use of the playground at the Plummer School to their son, Jan; is that correct?

A. Yes, I had called then to tell then that was the decision of myself, Mrs. Powers and Superintendent McCormack.

Q. So the three of you, that is you, Mrs. Powers, who is the principal at the Plummer School, and Superintendent McCormack decided that Jan would be suspended from use of the Plummer playground during school hours; is that correct?

A. Temporarily, until we could have a meeting and to decide what we would do to move forward with that issue.

Q. That's right. You felt that there would be some specific meeting that you would want to set up to discuss his suspension further; is that correct?

A. Well, not only did --

Q. Yes or no.

A. No, what you just asked me is incorrect.

Q. Let me rephrase it.

A. That is incorrect.

Q. You suspended his use of the playground and you were trying to set up another meeting to talk to the parents of why he was suspended; is that fair to say?

A. That's not the only reason we had. We would have the meeting not just to talk about suspension but what we were going to do to allow him to continue to use the playground, what -- how would we handle that. So it is not just to discuss the suspension.

Q. Well, but that's basically why you were asking for another meeting, because you had suspended him, there was no other real issue; is that correct?

A. No, that is not what I'm saying.

Q. Well, the only services that Jan Rankowski and his parents wanted from your school district was the use of a library at the Plummer School and the right to use the playground at the Plummer School with his peers; is that fair to say?

A. That's -- they wanted to have some possibility of additional assessments also, which weren't accessed but that was part of the service plan.

Q. The service plan really had two things -- perhaps I didn't make myself clear -- was to allow Jan to use the library at the Plummer School and materials, library materials, and also for him to play with other children at the Plummer School playground; is that your understanding of the service plan?

A. That is not the only -- that is not all the service plan was, is what I'm saying. It was more than that.

Q. All right. The exhibit presently before you, Exhibit 3, your letter of November 7th, excuse me, to the plaintiffs, does it state that you want further assessments of this child so that he can come back and play in the playground?

A. No, we wanted to talk about it though. We wanted to talk about how we would be able to move forward following the suspension.

Q. Okay. But you didn't mention specifically that you wanted assessments; is that correct?

A. Well, I don't think that we did actually want assessments.

Q. Okay. And, in fact, you knew that this child had had numerous assessments prior to November 7th on 2003.

A. I knew that Jan has had many assessments, however, the assessment that was recommended at that meeting was not the same type of assessment that he had had before.

Q. Okay. Let me see if I can get you to get my question. Prior to November 7th, 2003, you were aware that Jan Rankowski had been assessed many times.

A. True.

Q. Okay. And, in fact, when Mrs. Powers produced your special ed. file maintained by your office, and that is the deposition of Barbara Powers, deposition number 2, the assessments were missing from that file; is that fair to say?

A. I don't remember the assessments were missing. We have loads of assessments on Jan. I don't know about that particular file.

Q. Let me represent to you that Powers Exhibit 2 at her deposition failed to include any prior assessment of Jan Rankowski --

A. Well --

Q. -- are you aware of that?

MS. HEWEY: Objection. Is she aware that he is representing it or is she accepting his representation or what?

MR. COLES: Your Honor, a representation was made by counsel at the deposition that Exhibit 2 Powers was the entire special ed. file on Jan Rankowski. What I'm asking this witness is if she is aware of his special education file and if there were assessments missing from that file.

THE COURT: You may answer that question.

THE WITNESS: I am not -- I am not aware of any special education file. My office maintains the special education file and that's the one that went down to your office at the time I gave my deposition, so anything else I can't speak to.

BY MR. COLES:

Q. I want to show you what's been marked as Deposition Exhibit 19, which is three, black, three-ring binders, and ask you if these are assessments and studies, WRAP meeting reports?

THE WITNESS: Do you want me --

MS. HEWEY: Your Honor, may I see what he is showing the witness?

MR. COLES: I have a set for you, Ms. Hewey. Enjoy.

MS. HEWEY: Thank you. This is Deposition Exhibit 19, you said?

MR. COLES: That's correct.

MS. HEWEY: Whose deposition would that be, Mr. Coles?

MR. COLES: I'm sorry?

MS. HEWEY: Whose deposition?

MR. COLES: No, these are the missing assessments, which were not included in Powers Exhibit 2.

THE WITNESS: All of that?

MR. COLES: Yes.

THE WITNESS: Unless you want me to sit here and read them all, I couldn't speak to that. That's a mighty high pile. I would say I probably haven't seen all of that.

BY MR. COLES:

Q. I want to show you a letter, dated May 28th, 2002, Merrywing Corporation to Ms. Carolyn Crowell, Director of Special Services, which mailed you 18 different series of assessments; do you remember receiving that letter?

A. I don't remember receiving that letter; it could have come.

Q. It could have come. Do you remember receiving assessments?

A. No, I do not remember receiving that letter. No, I don't.

Q. I want to show you --

A. How long ago was that?

Q. That's --

A. That was three years ago?

Q. -- May 26, 2002, two-and-a-half years ago.

A. Don't remember.

Q. You don't remember?

A. No.

Q. Is there a separate file in your office of assessments on Jan Rankowski?

A. No, not a separate file.

Q. They would all be contained within his special ed. file?

A. Although we have a very thick file you could see, I'm quite sure they would all be in one significant binder. Yes, they would be.

Q. I want to show you Exhibit 2 to Barbara Powers' deposition and you tell me if all of his assessments for three years are contained within that special ed. file.

A. Do you want me to do that now?

Q. Please, just take a quick look.

A. I couldn't possibly do that quickly.

Q. Just take a look. All you have to do is -- is --There is no way I can -- I can -- first of all, I could never remember how many assessments he has had in three years nor could I do that quickly and look to see if the significant ones are in that file right now.

A. That would take a long time. I'll do it -- if the judge wants me to do it, I'll do it.

THE COURT: Do you want that kind of time taken for that kind of task?

MR. COLES: No, we are going to move on. BY MR. COLES:

Q. Do you remember sending a note to Ms. Fitzpatrick and her husband on September 24th, 2003, where you said you supplied a packet of updated information and testing regarding Jan? Do you remember sending that?

A. Oh, I see, this is a prior written notice.

Q. Do you remember sending that letter?

A. No, I -- there are thousands of letters that go out of my office and, no, I don't. But this is a prior written notice of proposed change of "program and I -- I would think that that is accurate.

Q. You are Polly?

A. I am Polly.

Q. Crowell? Crowell. Crowell. And your testimony is, you don't remember sending this letter?

A. Yes, that's my testimony.

Q. Okay.
Do you remember attending a meeting with Ms. Fitzpatrick and with myself present on November 24th, 2003, to discuss Jan Rankowski?

A. Yes.

Q. I want to show you what has been marked as Plaintiff's Exhibit 4 and ask you if those are the two-page meeting minutes of that November 24th meeting.

A. That looks like them, yes.

Q. In fact, the second page has your stamp on it, Carolyn A. Crowell?

A. It has my stamp on it, yes, sir.

Q. That's right. And you prepared these two pages and mailed then out to the parents, right?

A. I took the minutes at the meetings, I believe, although actually Chris Morin was there, he could have -- he could have been taking the minutes. And then we reviewed then and had than typed up and sent out. I was certainly part of the process.

Q. Okay. And it was sent out to the parents on or about December 2, 2003; that is the very last page on the lower right-hand side?

A. 12/2/03, that's correct.

MR. COLES: Okay, move to introduce that exhibit.

MS. HEWEY: No objection.

THE COURT: Plaintiff's 4 is admitted. Thank you.

BY MR. COLES:

Q. The first page, do you have the first page of that exhibit before you?

A. I do.

Q. Okay. The purpose of the meeting was to review Jan's behaviors at the playground and how to get him to resume access; is that fair to say?

A. And how to determine how to better mange Jan's behavior in order for him to resume access to the playground during school hours.

Q. Okay. You understand that Jan has Asperger's autism?

A. Jan, yes, he has Asperger's, that is my understanding.

Q. It is a form of autism?

A. It is the high end of the spectrum, yes.

Q. And part of Asperger's autism is poor social skills; is that fair to say?

A. Yes.

Q. These children have trouble communicating?

A. Trouble communicating -- well, that's a piece of it.

Q. In fact, there are many pieces to an Asperger's autistic child; is that fair to say?

A. True of every child.

Q. Okay. Now, in the first page you had a summary of discussion and you and your staff wanted a behavior management plan; is that what you were discussing?

A. Are you referring to the first paragraph?

Q. The first paragraph, where a summary of discussions --

A. Yeah.

Q. And you wanted a behavior management plan tailored to Jan's unique needs and use of the facilities as a home-schooled student; did I read that correctly?

A. Yes.

Q. But that was not contained in your November 7th letter when you suspended him, was it?

A. No, because that notice --

Q. Yes or no.

A. No.

Q. It was a suggestion that M. Crowell proposed that the school psychologist, Dr. Sheckart, would oversee -- what is the FBA?

A. Functional behavior assessment.

Q. Okay. You understand that the school psychologist, Mr. Sheckart, has never met Jan?

A. He doesn't meet children ahead of the time that the PET decides that he needs to be involved with the program.

Q. So it was your suggestion to the parents that the school psychologist would do this functional behavior analysis and that would assist you in making a determination of whether the child could come back and play in the playground; is that fair to say?

A. No, that is not it. That is not it. Would you like me to explain it?

Q. No.

A. Okay.

Q. You have answered correctly. The very last paragraph -- and you remember, I was present at that meeting?

A. I do.

Q. And you made a comment in your November 24th note, it was noted to Ms. Fitzpatrick that Mr. Coles (sic) was not being punished by being suspended from the playground during school hours; do you remember saying that?

A. I don't remember saying that but I would believe that is true.

Q. Do you figure seven months being suspended, being banned from the playground, is not being punished?

A. I wouldn't -- I wouldn't -- given the circumstances around the time that he has not participated on our playground, I wouldn't call it punishment because certainly we would not have done that.

Q. Great, let me rephrase that. Seven months of being banned from a playground during school hours an isolation of the child and punishment?

A. It could be viewed that way.

Q. Thank you. Let's turn to page 2 of your November 24th note.

A. Oh-hum.

Q. Page 2 has four items under the so-called determinations; is that correct?

A. Yes, it does.

Q. Okay. Item No. 3 -- let me see if I can keep my hand steady. Item No. 3 says: Reconvene a PET on or before February 12, 2004 or within 45 school days of receipt of permission to conduct FBA.
Did I read that correctly?

A. I believe you did.

Q. Okay. Do you have any trouble with the word, or?

MS. HEWEY: Objection.

BY MS. HEWEY:

Q. I'll rephrase that. By the -- within a few days after November 24th the parents of Jan notified the school that they would not agree to another FBA or assessment of Jan; you're aware of that?

A. I am.

Q. And then, so we then jump to -- we strike out the 45 days, we then jump to reconvene a PET on or about February 12th, 2004?

MS. HEWEY: Objection.

THE COURT: Basis?

MS. HEWEY: To form. If he wants her to explain what was written, that is fine, but he can't take little pieces and act like they are written in isolation.

MR. COLES: I'm just reading exactly from her report, your Honor.

THE COURT: Rephrase your question again.

BY MR. COLES:

Q. All right. The parents told you that they would not go along with another FBA or assessment, yes?

A. He never had an FBA.

Q That's right. But the parents declined to cooperate in having an FBA done, correct?

A. They did not sign permission to do the evaluation, that's correct.

Q. So then my next question is, did you or your staff or anyone in the Falmouth School Department reconvene a PET on or before February 12th, 2004?

A. No, we didn't, intentionally.

Q To this date has the Falmouth School Department set up a PET meeting to discuss Jan's being banned from the playground, yes or no?

A. I can't answer that yes or no because it would give an inappropriate message to the judge.

Q. Well, it's a very simple--question. Parents declined an assessment, the question to you is: Did you set up, or anyone in the Falmouth School Department set up, a PET meeting on or before February 12, 2004, yes or no?

A. I think, as I said before, that you are wordsmithing this document and the intention of this was to explain the 45 days that schools have in order to comply with an assessment that the PET recommended. And-that's -- the 45 days is what that was describing and that's -- you count 45 school days. That is where you get to February 12th. And the intention from the PET was to give the parents a time frame where we would be getting back after the evaluation had been completed, a maximum time frame. So the -- or any of that kind of information isn't the point for that in that No. 3. And there were other letters that were written, saying, if you want to get back together, please let us know and we would discuss it. And that was in another letter that was sent to the parents later on. So that's the truth.

Q. Okay. The truth is, you never set up another meeting after February 12th, 2004?

A. That's correct, we did not set up another PET meeting.

Q. And, in fact, in the school year 2003-2004, the one that just ended, are you aware of any other student that has had playground privileges suspended except Jan Rankowski?

A. I'm sure there are other kids who have been suspended for various reasons but I don't know of them all.

Q. Do you remember coming to my office to be deposed?

A. I do.

Q. And you swore under oath that you would tell the truth?

A. I did.

MR. COLES: Page 51, 17 through 21, Ms. Hewey.

BY MR. COLES:

Q. Do you remember me asking you the following question and you giving the following answer?
Question: In the last school year 2003-2004, realizing school is going to end in a couple of weeks, how many other students are you aware of that have had their playground privileges suspended in the Falmouth School Department?
Answer: None.
Do you remember that question and answer?

A. How many was I aware of? None.

A. That's probably the truth, I was not aware of any.

Q. Next question: None other than Jan Rankowski, right? Answer: That's correct. Do you remember saying that?

A. I could have said -- I don't remember saying that but, if it is in there, it's probably what I said.

Q. You were aware that the parents wrote -- Gayle Fitzpatrick wrote to you on the date of the PET meeting, November 24th, and advised you that they were rejecting this new assessment of their child; is that correct?

A. I don't have that in front of me but I -- that's correct, if you have a copy of that.

Q. Plaintiff's Exhibit No. 5 --

A. Okay.

Q. -- and ask you if that is later, dated December 1, 2003, from yourself.

A. Oh, this is from Mr. McCormack. That's right. I did not write that.

Q Now, it is cc'd to Barbara Powers and Polly Crowell.

A. That's correct.

Q. On the bottom.

A. Umm.

Q. Do you remember at your deposition testifying that you received a copy of this letter?

A. You asked me if I remember a lot before what you asked me at the deposition and I -- you know, I -- I know we had a long deposition and you probably asked me that but I can't remember you actually doing that.

Q. Well, it's on the bottom of the letter. It is signed Timothy McCormack, Superintendent of Schools, cc'd Barbara Powers, Polly Crowell.

A. Right, that's true.

Q. And you received a copy of that, which was then marked at your deposition, Crowell --

A. Uh-hum.

Q. -- Exhibit 11. Do you remember that now? Does that refresh your memory?

A. I'm sure you handed this to us during the deposition, if you tell me.

MR. COLES: Move to introduce this exhibit.

MS. HEWEY: No objection.

THE COURT: Is that Plaintiff's 5?

MR. COLES: Plaintiff's 5.

BY MR. COLES:

Q. You have Exhibit 5 before you?

A. I do.

Q. Okay. And you're acknowledging to the parents that you understand they are rejecting this new assessment; is that correct?

MS. HEWEY: Objection.

THE WITNESS: I didn't write that.

THE COURT: Excuse me, please.

THE WITNESS: Oh, sorry.

MS. HEWEY: Objection. The letter is from Mr. McCormack, not from Ms. Crowell.

THE COURT: Sustained.

BY MR. COLES:

Q. It was your understanding that the parents were rejecting a further assessment of their son, yes or no?

A. Yes, I knew that. Somehow I knew that.

Q. Okay. And Timothy McCormack, the superintendent, was suggesting in his letter that this was a short-term decision; was that your understanding?

A. Was that my understanding, that it was a short-term decision?

Q. Yes.

A. My understanding was that we were going to do a functional behavioral assessment as soon as the parents gave us permission to do so and then go forward from there. That was my understanding of what we were doing.

Q. But you understood that the parents said no to another assessment?

A. Right.

Q. And you were then to set up a meeting on or about February 12th; you understood that?

A. No, I did not understand that. That's not my understanding, absolutely not.

Q. Even in the prior exhibit that has got the word, or, you didn't understand that?

A. I wrote those minutes, and, as I just told you, that -- that whole thing about 45 days was to explain to the parents that that particular time, approximately how much time it would possibly take to do the assessment and to get back together, because the schools have 45 school days to complete these things.

Q. Okay. You have the exhibit of Timothy McCormack before you? Timothy McCormack says this short-term order is certainly within the authority, et cetera; did you understand when you received a copy of this letter that Timothy MoCormack's going along with the suspension was a short-term order?

A. No.

Q. Okay. Did you also understand that Timothy McCormack was suggesting that if things aren't worse --if you get -- if you again refuse, we may seek assistance from law enforcement; was that your understanding also?

A. I knew it was possible that we would -- we would have someone involved with law, whether it would be our own school police officer or someone else talk to the parents, because we had -- we had told the parents that the child was suspended from the playground and that we were serious about that until we could care up with a plan where he could be successful and safe on the playground.

Q. Do you recall on or about December 1st, 2003, speaking with Timothy McCormack and having any discussion about the police being called to come down and arrest anyone who was bringing the child down to play on the playground?

A. I talked to Mr. McCormack at some point about having either Officer Susi or someone talk to the parents about the legal aspect of them abiding by our request for him to stay off the playground. I don't --I am sure that there was no discussion about arresting anyone other than, obviously, if you take it to an extreme that -- I suppose that could be the end result.

Q. I want to show you what has been marked as Plaintiff's Exhibit 6 and ask you if you have ever seen that document.

MR. COLES: For the record, it is captioned on top: Supplemental Statement of Rights For Private School slash Home-schooling Students With Disabilities, marked previously Crowell Deposition Exhibit 16.

BY MR. COLES:

Q. Have you seen that before?

A. Oh, yes, I have.

Q. In fact, you mail that out to parents of home-schooled and private-schooled children every year, don't you?

A. I know we have -- we have mailed it out and I can't swear to how many years this has been going on, so when you say every year, I can't swear that that has happened.

Q. You mailed this particular supplemental statement July 16th of this year, about five weeks ago. Do you remember mailing that?

A. July 16th, I'm not -- I can't tell you whether that is the accurate date. I know we did mail it out to parents prior to a meeting that we were going to have with parents.

MR. COLES: Move to introduce Plaintiff's Exhibit 6.

MS. HEWEY: No objection.

THE COURT: Thank you. It is admitted.

BY MR. COLES:

Q. Plaintiff's Exhibit 6, paragraph B, tell me if I'm reading this correctly, please:
Students with disabilities enrolled in private schools or in home-schooling programs do not have an individual right to special education and related services while enrolled in the private school or home-schooling program.
Did I read that correctly?

A. You did.

Q. And that would, of course, be home-schooled student, Jan Rankowski, who is also a special ed. handicap; is that correct?

A. Would you say that again, please?

Q. That particular paragraph and the whole exhibit applies to Jan Rankowski, who is handicapped and home-schooled, correct?

A. That would be correct. I have to tell you that this is a document that we are currently updating but it had not been fully updated at the time that we sent it out.

MR. COLES: Move to strike as beyond the response, your Honor.

THE COURT: It is stricken.

BY MR. COLES:

Q. I want to show you, Ms. Crowell, what has been marked as Plaintiff's Exhibit 7, it is on the original letterhead of Falmouth Schools, dated July 16, 2004, signed by Polly Crowell, Director of Special Services. Are you familiar with that letter, sent five weeks ago?

A. Yes.

MR. COLES: I would move to introduce Exhibit 7.

MS. HEWEY: Objection, relevance.

MR. COLES: Highly relevant, your Honor.

THE COURT: May I see the letter, please?

MR. COLES: She has the original. This is the letter the witness says she doesn't remember sending out.

THE WITNESS: No, that is not what I just said.

THE COURT: I believe her testimony was she doesn't remember the date it was sent out.

BY MR. COLES:

Q. Do you remember sending that letter out?

A. You never asked me if I remember sending that letter out.

Q. Do you remember sending that letter

A. You asked me about this thing.

Q. -- July 16th, 2004, to parents of home-schooled, private-schooled children?

A. That letter, yes.

Q. You do remember that letter?

MR. COLES: Move to introduce Exhibit 7. THE COURT: Attorney Hewey?

MS. HEWEY: I still object on relevance grounds. That is this year, way after all of this occurred. I don't see the relevance of this letter.

THE COURT: Attorney Coles?

MR. COLES: Yes, your Honor. If you can take a look at the bottom of the fourth paragraph: Please know that if you do not get back to my office requesting such a meeting, we will be assuming that you are not interested in such services and we would not be scheduling a PET for your child. That is highly relevant to this proceeding, your Honor, because no PET has ever been set up on this child.

THE COURT: Well, it is after the fact. I will admit it over objection for whatever worth it may have in these proceedings.

MR. COLES: Thank you, your Honor.

THE COURT: Plaintiff's 7 is admitted. MR. COLES: If the witness can have the exhibit when you are through?

BY MR. COLES:

Q. Ms. Crowell, your July 16th, 2004, letter --

A. Uh-hum.

Q. -- correct me if I'm wrong, essentially tells parents that the only services the Falmouth School Department is offering to home-school students is speech therapy, tutorial services for academic support and transportation; those are the three categories, correct?

A. Right, following the meeting we have with parents.

Q. Okay. Through attorneys over the last few weeks you have gotten direct word from the parents that they don't want any services from the Falmouth School Department other than the use of a library and for Jan to play in the Plummer playground; do you understand that?

A. Yes, I remember receiving a letter from you.

Q. The answer is yes.
Attaching a letter -- receiving a letter from my office through Ms. Hewey, attaching a letter of Gayle and Charles, do you remember that?

A. Yes, I remember getting that.

Q. And the letter clearly told you they don't want any special services, all they want is for the child to use the library and to use the Plummer playground; you understand that.

A. I remember that.

Q. Would you agree with me that Jan Rankowski is a home-school student with disabilities and is not part of your program?

A. He is not a part of our regular special education program, that's correct.

Q. And you would also agree with me that home school laws do not welcome public school people? (sic)

MS. HEWEY: (Objection.

THE WITNESS: Home school laws do not --

THE COURT: The basis of the objection?

MS. HEWEY: He is asking her for a legal conclusion about home school laws.

MR. COLES: I'll move on.

THE COURT: Thank you.

BY MR. COLES:

Q. Would it be fair to say that you have never observed Jan in the playground and never saw Jan either strike children or throw rocks?

A. I personally never saw Jan strike children or throw rocks, that's correct.

Q. In fact -- in fact, you're not aware of any adult in the Falmouth School Department seeing Jan throw rocks or strike other children.

A. I am not aware of anyone like that, no, but I am aware that that was the report.

MR. COLES: Move to strike, your Honor. It is beyond the answer.

THE COURT: That last part is stricken.

BY MR. COLES:

Q. You would agree with me that the least restrictive educational alternative to disabled handicapped children is to mainstream them; you would agree with that?

A. Yes, I do agree with that.

Q. You are not aware of any incident reports on Jan Rankowski in the fall of 2003; is that fair to say?

A. In the fall of 2003, incident reports, you mean formalized written reports?

Q. Absolutely, formalized written reports by an adult in the Falmouth School Department to yourself, to the superintendent, to the parents, talking about any particular incidents; have you ever seen any of that on Jan Rankowski?

A. No. Formal reports, no.

Q. Okay. In fact, you're not aware of any incident report on Jan Rankowski in the fall of 2003.

A. I'm aware of incidents that happened while he was on the playground but as far as --
I'm talking about an incident.
But as far as a written report, no.

Q. All you're aware of is some anecdotal comments that you had with someone concerning some event that may have taken place; is that correct?

A. Several people, correct.

Q. But there is no reports ever written about those incidents?

A. No formal incident reports that I have read or seen.

Q. Now, before you mailed out your November 7th, 2003 letter, suspending the child from the playground, you consulted with Barbara Powers and Timothy McCormack; is that fair to say?

A. Yes.

Q. Okay. And it was your mutual agreement to suspend this child?

A. Correct.

Q. Do you have any information that Jan Rankowski presented a safety concern to himself or to other children in the fall of 2003 in the playground?

A. Yes.

Q. Let me refer you to page 38, lines 5 through 10 of your deposition. Let me ask you if you recall me asking you the following questions, you giving the following answer?
Question: Do you have any information that he, Jan Rankowski presented a safety concern to himself or to other children?
Answer: I do not have knowledge of that.
Question: Those are contained within those notes?
Answer: No, not necessarily.
So, your testimony at your deposition was that you had no information but you're saying now at trial that you have information; is that correct?

MS. HEWEY: Objection. She said she had no knowledge which is different than the information.

THE COURT: The objection is sustained.

BY MR. COLES:

Q. Do you know of any other child, other than Jan Rankowski, who has been suspended for seven months because he used equipment in the playground improperly?

A. I have no knowledge of any other child in that same situation. No, I do not.

Q. And you would agree with me that violence is not something you would attribute to Jan Rankowski?

A. Violence, that is very vague. I couldn't comment on that.

Q. Well, let's turn to page 41 of your deposition, lines 7 through 19. Do you remember the following questions and the following answers?
Question: You understand that this is the nature of the autistic child that they -- they are on occasion unresponsive to adult commands?
Answer: It's possible, it's possible that some of that's true.
Question: I mean, this is the nature of autistic children from your knowledge of autism. Would you agree with me that most autistic children are nonviolent?
Answer: Nonviolent?
Question: Yes.
Answer: I don't even think that's an issue. I don't think, you know, that's --
Question: It's not an issue concerning Jan?
Answer: No.
Do you remember those series of questions and answers?

A. I remember those series of questions and answers.

Q. You would agree with me that autistic children are essentially cloistered and unsocial children?

A. I -- that kind of question just doesn't make sense to me.

Q. Do you understand the question?

A. I do understand what you're trying to do here, but I

Q. It is not what I'm trying to do. I asked you a question. Would you agree that autistic children are cloistered and unsocial children?

A. Cloistered, I would say no, not in these days.
We are -- our school has many kids who have autism in it and they are right out there with all of the other kids in appropriate programs and I would say they are not cloistered. They do have social problems, yes.

Q. Referring back to your deposition, where you swore to tell truth, page 41, lines 20 through 23, do you remember being asked the following questions, you giving the following answers?
Question: Your knowledge is that most autistic children are rather cloistered and unsocial children?
Answer: Their social skills are one of characteristics that is always in question.
Do you remember saying that?

A. That's a good answer, yes.

MR. COLES: I have nothing further.

THE COURT: Thank you, Attorney Coles. Attorney Hewey?

MS. HEWEY: Thank you, your Honor.
Your Honor, while we were in chambers I said that I had an exhibit book prepared for the Court; may I present that to you?

THE COURT: Yes, you may.
Attorney Coles has a copy of that; is that correct?

MS. HEWEY: Yes, does. It is right here.

THE COURT: Thanks.
I'm going to apologize in advance to counsel and the parties. I have got a throat thing going here and I'm going to be popping a lozenge every now and then. I mean no disrespect to the proceedings by doing that.

MS. HEWEY: Okay, your Honor.

THE COURT: Thank you.

CROSS-EXAMINATION

BY MS. HEWEY:

Q. Polly, you said that you were the Director of Special Services at Falmouth --

A. Yes.

Q. -- is that right? And could you just briefly tell the Court what that position means you do?

A. Well, that's a -- I oversee all of the programs in special education, K to 12, and I work with the special ed. staff as well as regular ed. staff from the principals to assure that the programs are appropriate and that we continue to provide appropriate services for all of the kids in the district.

Q. Thank you. I'm going to show you Defendant's Exhibit 4, can you identify that for me?

A. Yes, this is a -- well, it is a listing of the different categories of students with disabilities in our district and it gives the numbers of students within each category in each school level, each school, and grade level across K to 12.

MR. COLES: Your Honor, I would move to strike this testimony. This is improper cross. There is no foundation as to who prepared the statistical analysis.

THE COURT: Attorney Hewey?

MS. HEWEY: Your Honor, I will -- before we deal with Mr. Coles' motion to strike I will set the foundation. I asked the first question and now I will continue to set the foundation. I have not yet moved for introduction of the exhibit.

THE COURT: The objection is overruled and also insofar as it pertains to the testimony thus far. Go ahead.

BY MS. HEWEY:

Q. Exhibit 4, was that prepared from documents that are kept in the regular course of business of the Falmouth School Department?

A. Yes.

Q. And the documents that were used to prepare that exhibit, were they the regular practice of the Falmouth School Department to keep those records?

A. Yes, we have to keep the numbers of kids in special ed. and different categories.

Q. And are those records maintained in your custody and control as Director of Special Services at the Falmouth School Department?

A. Yes.

MS. HEWEY: I offer Exhibit 4.

MR. COLES: The same objection, your Honor. There is no testimony that the witness is aware of who prepared the statistical analysis or whether anyone in the Falmouth School Department prepared it at all. It seems to be just a breakdown of numbers based won records; the records have never been introduced.

THE COURT: Anything further, Attorney Hewey?

MS. HEWEY: Your Honor, the rules of evidence provide for admission of a summary document if it's prepared using business records. I think that I have appropriately established the foundation for a summary under the rules of evidence.

THE COURT: The objection is overruled. Defendant's 4 is admitted.

BY MS. HEWEY:

Q. Ms. Crowell, could you tell the Court how many students with disabilities receive special services through the Falmouth School Department?

A. Currently, 255.

Q. And of those 255 students how many have diagnoses within the autism spectrum?

A. Twelve.

Q. And when you say autism spectrum, could you explain for the Court what that means?

A. Just briefly, autism is described as a spectrum because students with autism have a range of issues that maybe considered very severe, involving a range of issues to students who have Asperger's Syndrome, who are very high functioning but still have some qualities that would interfere with their lives to some extent and they are considered to be on the spectrum.

Q. Okay. Are there students with diagnoses within the autism spectrum at the Plummer-Motz and Lunt School?

A. Yes.

Q. And how many are there?

A. There are six.

Q. Okay. And those students receive special education services; is that right?

A. Correct.

Q. Now, speaking about students who are enrolled in the Falmouth School Department, who receive special education services, how does the school department go about developing their educational programs?

MR. COLES: Your Honor, I would object to this entire line of questioning because our child is home-schooled and the testimony from this witness already said that he doesn't receive any special services. This is an oranges and apples cross-examination just designed to eat up time.

THE COURT: Objection based on relevance, your response please?

MS. HEWEY: Yes. I think that the claim here is that the Falmouth School Department is discriminating against this child because he has autism. It is important for the Court to understand how the Falmouth School Department deals with special education children and children with autism in order to be able to assess the discrimination claim. There is no claim in this case that the Falmouth School Department discriminated against Jan Rankowski because he is home-schooled because there is no statute that prohibits that. What we are talking about is, did this school department discriminate against him because he is disabled? And I think that, in order for the Court to be able to understand that, you need to understand how this school department deals with children with disabilities on the playground in the school that gives rise to this lawsuit.

MR. COLES: Incorrect, your Honor. Counsel neglects one important thing, this is a home-schooled disabled child. The testimony will come out that this is the only home-schooled disabled child in the Falmouth School Department. This child was treated very differently than other handicapped children that receive special services that flow through the school system. The parents of this child, as your Honor has already heard, require no special services from the Falmouth School Department; the only thing they want is for him to use the library and to use a playground. So this whole background on what the school does for in-school children has nothing to do with our home-school child. This is a very selective type of discrimination and I would move to strike this entire line of cross-examination.

THE COURT: As I understand the argument then, you're indicating that there is discrimination with respect to Jan because he is home-schooled?

MR. COLES: (Nods in the affirmative.)

THE COURT: And that as opposed to disabled children?

MR. COLES: It is both, your Honor. THE COURT: In the special education children?

MR. COLES: He is disabled hove-schooled but he is not disabled through the school system as an in-school student. There is the difference. They treat those children very differently than our child.

THE COURT: I understand the distinction. I think that the course of questioning that Attorney Hewey was about to embark on will provide an appropriate foundational predicate for me to understand the focal issue, which will be the discrimination or not with respect to the child and his use of the playground. So it is in that context I'm going to permit the question. I understand he is not in the school's special ed. program.

MS. HEWEY: Okay.

BY MS. HEWEY:

Q. I'm going to assume that you don't precisely remember my question so I'm going to try to reask it.
Speaking about -- again, we were talking about students who are enrolled in the Falmouth School Department, who receive special education services, and I was asking if you could explain to the Court how their educational programs are developed.

A. They are developed through the Pupil Evaluation Team process. It's a team that consists of the school staff, teachers, specialists, an administrator, parents, and any specialist that may happen to be involved with that child's case. After the child has been evaluated and the child is determined to have a disability, which impacts his education significantly and the child requires special education services, then we write as a team an individual education program and the program contains goals and objectives for that child's special education services.
And that's pretty such it in a nutshell. It is very, very short.

Q. So each student has their own individual plan called an IEP, right?

A. Correct.

Q. And if behavioral issues arise with regard to an enrolled so student who receives special education services, how are they addressed within the Falmouth School Department?

A. If those issues go to the level where it's different than normal kid kind of behavioral issues, the team would meet, the special education team would create a behavior plan and the behavior management system is in place so that the parents understand how the school is managing, and the parents can also work with the child the same way so that everybody is reinforcing the strategies that we are trying to use with that child.

Q. And in terms of putting a behavior management plan in place, how are the different ways that you go about doing that?

A. There is some kind of an evaluation, which determines what type of behaviors are happening, and then we make some kind of a judgment about what do we think is causing these behaviors, in what circumstances they happen, with what -- what are positive reinforcements that we can use to reinforce replacement behaviors that would work for the child instead of the negative ones. And data is kept on it so that we can see whether or not what we are doing is working and continue to adjust the program as needed.

Q. And when you talk about evaluating in order to come up with this, do you sometimes use functional behavioral assessment as a tool to do that?

A. Yes, we do.

Q. Could you explain to the Court what a functional behavioral assessment is?

MR. COLES: Your Honor, I have got to really -- for the record I want to object to this continuing line of questioning dealing with individual education programs, which is not applicable to Jan Rankowski, he doesn't have one, and assessment programs; all he has is a service plan, that is the only thing Jan Rankowski has. So this whole line of questioning as to what they would do for other students is inapplicable to this home-schooled disabled child.

MS. HEWEY: Well, your Honor, I just asked the witness what is a functional behavioral assessment.

THE COURT: The objection is overruled. You may answer the question.

THE WITNESS: Functional behavioral assessment is actually described in our special education regulations, but it is functional and it really looks at how is the child behaving in this situation that seems to be problematic. And it is very -- it's a practical thing to do in the school setting so that people can identify what's going on with the child and then come up with some strategies in order to deal with that. It is not an assessment that says whether or not the child has a disability, like Asperger's or mental retardation or whatever, that's not the point. It is a functional kind of a review and data collection in order to use that information to make a behavior management plan and it is -- it is functional in every sense.

BY MS. HEWEY:

Q. Now, you mentioned the special education regulations and I'm going to show you Defendant's Exhibit 3, are those the regulations promulgated by the Maine Department of Education?

A. Yes.

MS. HEWEY: I offer Exhibit 3.

MR. COLES: Objection, your Honor, a series of regulations is not normally admitted. If the Court wants to take judicial notice of the Maine code of regulation, it can do that, but to have an entire batch of 94 pages of regulations is beyond the scope of this hearing.

THE COURT: Attorney Hewey?

MS. HEWEY: Your Honor, it is true that the Court could go and look them up. This seemed to be an easy way to get the regulations, which, the witness just testified, specifically define functional behavioral assessment at section 2.10, before the Court.

MR. COLES: Your Honor, if I might continue?

THE COURT: Sure.

MR. COLES: These regulations are for special ed. students in school, they do not affect a home-schooled disabled child. Therefore, not only does the Court not have to accept them, they are irrelevant to this proceeding. If she wants to introduce regulations on home-schooled students, I would have no objection. This is not education law we are talking about in this hearing, this is discrimination law; it's a world of difference between two the two.

THE COURT: I understand that. I'm going to overrule the objection. I'm going to admit it. I understand that the regulations are the regulations that are out there, just like the statutes are the statutes and they are out there. They may not have a particular relevance to issues in this particular case. To the extent that they might and to the extent that the parties wish to refer them to me, I will examine them and make a decision in my own mind as to whether they apply or not but as a reference tool I will permit them to be admitted.

MS. HEWEY: Okay.

Could you explain to the Court how that -- how it

BY MS. HEWEY:

Q. Let's follow up on what Mr. Coles has been talking about. And it is true isn't it, Ms. Crowell, that the process that you have been talking about for students that are enrolled in the Falmouth School Department is a little bit different for -- was a little bit different for Jan Rankowski because he is home-schooled, right?

A. Correct.

Q. Could you explain to the Court how that - how it was different? Did you still meet?

A. We still had the PET -- well, we had the PET meeting and that's the one that I think you're referring to. Maybe you could -

Q. Okay. Why, if Jan Rankowski as was not receiving -- was not enrolled in the Falmouth School Department, did you get together for a PET meeting?

A. Very simple, there were behaviors on the playground.

Q. No, let's talk about earlier on in September, initially.

A. Oh, okay.

Q. You got together for a PET meeting in September.

A. To talk about the service plan, which he - he could have, because he is a student with disabilities who is home-schooled. That is why we had the meeting, to find out what the parent was requesting as far as a service plan.

Q. Okay. And we talk about a service plan, is that the types of services that you would provide a special education student, who is home-schooled instead of enrolled student; is that right?

A. Correct.

Q. And even though the student is home-schooled, you still have the PET team get together and decide on the service plan; is that right?

A. Right.

Q. And you had a meeting on September 11th, 2003, to address Jan Rankowski's service plan; is that right?

A. Yes.

Q. And I'm showing you Defendant's Exhibit No. 5, are those the minutes of that meeting?

A. Yes.

MS. HEWEY: I offer Exhibit 5.

THE COURT: Attorney Coles?

MR. COLES: I have no objection if it includes the service plan, which should be annexed to it.

THE COURT: The copy that I have appears to include something called Falmouth School Department Individualized Service Plan appended to the minutes.

MR. COLES: I have no objection, your Honor.

THE COURT: That is admitted. Thank you.

BY MS. HEWEY:

Q. Okay. During that meeting Ms. Fitzpatrick requested a number of things from the Falmouth School Department, right?

A. Right.

Q. Including use of the library, right?

A. Yes.

Q. And that was granted, wasn't it?

A. Yes.

Q. And she also requested use of the playground and that was granted, too?

A. Yes.

Q. And what else did she want?

A. Assessment. We talked about the amount of money that could be set aside because she was working with this WRAP team and, if she wanted to have additional assessments, that we would be willing to put that money toward assessments determined by that WRAP team.

Q. Okay. So she specifically asked you to pay a thousand dollars for additional assessments during this meeting; is that right?

A. Right, if that came up and if there was need for that, and we agreed to do that.

Q. Okay. Now, the next time you were directly involved with Jan Rankowski was in November; is that right?

A. Correct.

Q. And on November 7th there was an incident on the playground and that was reported to you by Barbara Powers; is that right?

A. Correct.

Q. Can you tell the Court what happened?

MR. COLES: Objection, your Honor. That is hearsay.

THE COURT: Attorney Hewey?

MS. HEWEY: Yes. The reason I am eliciting this testimony is an explanation as to why Ms. Crowell sent out the letter that Mr. Coles introduced a few minutes ago.

THE COURT: The question about her is what happened. I'm sustaining the objection for the reason interposed, it is hearsay.

BY MS. HEWEY:

Q. Okay. After you spoke with Barbara Powers on the 7th, did you and Barbara and the superintendent make the determination that Jan's use of the playground would be suspended? Is that right?

A. Correct.

Q. And why was that?

A. Because of a series of behaviors that have become problematic over time and it was that on that date another incident happened. And so that was a point at which we decided to suspend his use of the playground until we could get together and decide what to do next.

Q. And when you say, get together and decide what to do next, what was your intention?

A. To have a Pupil Evaluation Team meeting, which would include the parents and our staff, to talk about the behaviors and then decide what we were going to do.

Q. Okay. So you sent out a letter informing the Rankowski family of that right?

A. Yes.

Q. And then the meeting occurred on November 24th, right?

A. 24th, I think that's correct.

Q. I think you have the minutes in front of you and I don't know --

A. Oh, yeah, I do. I have them here somewhere.

Q. I can give you another copy.

MR. COLES: Your Honor, that is already an exhibit, the November 24th minutes.

MS. HEWEY: Yes, and that is what I'm just asking her to look for.

THE WITNESS: Here they are. Yep.

BY MS. HEWEY:

Q. Plaintiff's Exhibit No. 4?

A. No. 4, here we go.

Q. Now, those minutes indicate that at that meeting you recommended that a functional behavioral assessment be completed with respect to Jan Rankowski?

A. Correct.

Q. Is that right?

A. Correct.

Q. And could you tell the Court why you recommended a functional behavioral assessment?

A. I wanted to have a way that we could gather the data that we needed to really see what was going on with Jan on the playground, do it in a way that would provide us with information that we could use to develop a behavior management system, which would allow him to return to the playground and have a system in place that we could all understand and apply with the parent, with whoever the parent had with him as a helper on the playground, as well as our own staff. So this was a much more systematic way of coming up with a plan that we all could live with and that we all would believe would work.

Q. May. When you suggested -- well, first off, who was going to perform the functional behavioral assessment?

A. Well, there would be more than one person involved but I suggested that our school psychologist would oversee it so that the plan would be made appropriate and to the standard necessary and then other people would be taking data and it could have been ed. techs., it could have been teachers. We never got that far.

Q. Okay. So would this occur while Jan was actually at play on the playground?

A. Correct. We were suggesting -- we suggested that we would make appointments so that Jan could came to the playground when his peers were there, and we would have the people there available to do the observations so that he would be able to come back very soon in order to accomplish this.

Q. Okay. And what was the family's response at that meeting on November 11th -- November 24th?

A. They asked questions about the functional behavioral assessment and then we wrote the plan, which is also a permission form, and they wanted to think about it. So, Ms. Fitzpatrick and Mr. Coles said they wanted to think about it so they took the proposal for the assessment home.

Q. Okay. And so at the end of the meeting you did -- it says IEP written for functional behavioral assessment.

A. Right.

Q. Is that what you just described?

A. That is what I just described.

Q. It says: Schedule FBA after consent is returned.

A. Correct.

Q. Then it says: Reconvene a PET on or before February 12th, 2004 or within 45 school days of receipt of permission to conduct FBA. Now, you were asked a lot of questions on direct examination about that and I'm not sure it was clear. 45 days -- well, February 12th is 45 days from November -- 45 school days from November 24th; is that right?

A. Correct, correct.

Q. So what you were saying was, we will do it by February 12th or 45 days from whenever you return the FBA --

A. Correct.

Q. -- consent? And so you didn't have a PET because the family never agreed to an FBA; is that right?

A. That is absolutely correct.

Q. And in that regard -- well, did you get -- how were you notified that the family didn't agree to have the FBA?

A. I really don't remember when I first learned of it but --

Q. Well, let me show you Exhibit 9. Is that a letter that you received from Gayle Fitzpatrick?

A. May, this is -- this went to Barbara Powers, first --

Q. Oh.

A. -- it didn't come directly to me first but then I learned of it.

Q. Then Barbara Powers gave you a copy of that letter?

A. I'm sure I did get one at some point.

Q. Okay. After you learned that the family had decided not to have a functional behavioral assessment, did you communicate with them again?

A. Yes.

Q. And I'm going to show you Defendant's Exhibit 11, is that a letter from you to Ms. Fitzpatrick and Mr. Rankowski, dated December 23rd, 2003?

A. Yes, it is.

Q. Did you send that to the Fitzpatrick-Rankowski family?

A. Yes.

MS. HEWEY: I offer Exhibit 12.

MR. COLES: Can I have a brief voir dire on this?

THE COURT: Say that again, please.

MR. COLES: Just a brief voir dire because there are parts of this letter missing.

THE COURT: Just so I'm clear, we are talking about Exhibit 11?

MR. COLES: Defendant's 11.

THE COURT: I thought I heard Attorney Hewey say 12. If I'm mistaken -

MS. HEWEY: I'm not good with numbers.

THE COURT: On 11 you may have a brief voir dire.

VOIR DIRE EXAMINATION

BY MR. COLES:

Q. Do you have Defendant's proposed 11 before you?

A. I do.

Q. Excuse me, number 5. Toward the bottom you use of potentially hazardous areas, dot, dot, dot, supervised by qualified employee of school unit, what does the three dot, dot, dots mean? What is missing?

MS. HEWEY: Wait.
Objection, your Honor, the letter says what it says. If he wants to cross-examine the witness about the content of the letter, that's fine, but that is not a valid objection to --

THE COURT: I agree with that. What other purpose of voir dire did you have?

MR. COLES: I'll withdraw my objection. We will deal with it on cross.

THE COURT: Thanks. Defendant's 11 is admitted.

MS. HEWEY: Okay.

CROSS-EXAMINATION (Cont'd)

BY MS. HEWEY:

Q. Would you turn to the second page on that exhibit? And I'm looking specifically at the second paragraph. Did you give the family an alternative to having a functional behavioral assessment in order to have Jan come back to the playground?

A. Yes.

Q. And could you read for the Court what you said, the last sentence of that second paragraph?

A. If at some point in the future you believe that Jan is able to use our playground facilities without engaging in disruptive behaviors, we are willing to sit down with you and consider a request for reconsideration of this decision.

Q. Did Gayle Fitzpatrick or Charles Rankowski ever contact you and tell you that they believe that Jan was able to use the playground facilities without engaging in disruptive behaviors?

A. No.

Q. They also didn't agree to the functional behavioral assessment, right?

A. Correct.

Q. Did they ever offer any alternative modifications to this behavior plan?

A. No.

MS. HEWEY: I have no further questions.

THE COURT: Thank you. Attorney Coles?

REDIRECT EXAMINATION

BY MR. COLES:

Q. Have you ever received a copy of Jan's behavioral plan, the most recent one, July 29th, 2004?

A. I received, yes, something recently. Yes.

Q. I want to show you what has been marked, and it is six pages entitled Woodfords Family Services, Jan's behavioral plan; have you seen that before?

MS. HEWEY: Your Honor, may I see a copy of that?

THE WITNESS: No, it just came.

MR. COLES: A copy was sent to Ms. Hewey's office forwarding to this witness.

BY MR. COLES:

Q. You have seen this before?

A. I have I just received it.

MR. COLES: Move to introduce Plaintiff's Exhibit, Woodfords Family Services, Jan's behavioral plan, as Plaintiff's Exhibit 22.

THE COURT: 22, thank you. Any objections?

MS. HEWEY: No.

THE COURT: It is admitted. Thank you.

BY MR. COLES:

Q. You understand that all of Jan's special services are taken care of by outside providers; is that correct?

A. I have nothing to do with it --

Q. Well --

A. -- so I don't know.

Q. -- you understand that the Falmouth School Department provides no special services to Jan Rankowski?

A. I understand that.

Q. That's right. So, therefore, he doesn't need an individual education plan, all he needs is a service plan; is that correct?

A. No.

Q. All he has is a service plan.

A. Right, all he has is a service plan. Q. He has no individual education plan because he is home-schooled; is that correct?

A. That's true.

Q. And the two services that he wants is the use of the play ground and the use of the library; is that fair to say?

A. Well, I keep saying the same thing, there is another feature to that.

Q. The other feature is the thousand dollars, which has never been used; is that correct?

A. Right but that's part of the plan and that's available and that was an agreement.

Q. But the family has never used a potential $1,000; is that correct?

A. It is not an issue.

Q. Yes or no.

A. I don't appreciate you yelling at no.

Q. I would appreciate you answering the question.

THE COURT: Okay, we are going to ratchet this back. Again, what this is about is no getting information to make a decision. So let's try it one more time please.

BY MR. COLES:

Q. Has the family ever used the $1,000 as part of the service plan?

A. No.

Q. Okay. You understand that Jan is taken care of by a so-called WRAP team?

A. I know in the past that there has been a WRAP team for Jan. Yes, I do.

Q. That's right. And that part of the WRAP team is the Woodfords Family providers and Greg Yahr, neuropsychologist, a number of other people who work with Jan; are you aware of that?

A. I am aware that that is what is happening. I do not know the specifics of it.

Q. Do you understand that the Falmouth School Department for the last 18 months has been invited to attend WRAP meetings but no one from your department has ever shown up?

A. That's probably true.

Q. You wanted Jan to be observed again some time in the fall of 2003 so that some kind of FBA could be put together; is that fair to say?

A. The assessment -- the observations part of the FBA, what we wanted to put together as a result of the functional behavioral assessment, is the behavior management plan so that he could return to the playground and be successful there.

Q. You were aware that Jan was being followed around and notes were being taken of his behavior from September 30th, 2003 to November 7th, 2003. You were aware of that, weren't you?

A. I would not agree that he was being followed around.

Q. Well, he was -- he was observed, notes were taken of his behavior and who he plays with and who he talks to; do you remember that?

A. I -- I don't know that notes were taken about who he plays with and who he talks to.

Q. Have you seen the 18 pages of what we call snooping notes during that period of time?

A. I have seen that you call them snooping notes,

Q. Have you seen those notes?

A. Yes.

Q. Have you seen the very first page, where Mora Katz, a special ed. teacher, told her special ed. assistant: Follow this child around, don't talk to the mom, observe who he plays with, don't be lulled by two weeks of behavior? Do you remember seeing that?

A. I don't remember that she said follow this child around. It's possible, I don't remember that.

Q. Did you authorize this child being followed around?

A. No.

Q. Did Mora Katz do this on her own?

A. No.

Q. How did Mora Katz end up -- who is a special ed. teacher under you? How did she and up doing it?

MS. HEWEY: Objection, your Honor, foundation. It is also beyond the scope of cross.

THE COURT: I'll sustain it on the basis of foundation at this point.

MR. COLES: Your Honor, let me rephrase it.

BY MR. COLES:

Q. You wanted a further assessment of this child but at the same time he had been followed around for five weeks; is that fair to say?

A. You're likening apples and oranges there, the mix.

Q. Well, admittedly, he was followed around from September 30th by staff at Plummer School, notes were taken, everything was recorded as to his behavior. You received copies of that, didn't you, at some point?

MS. HEWEY: Objection to the form of the question.

THE COURT: I'm going to let you answer that last question.

THE WITNESS: I received copies of the notes.

BY MR. COLES:

Q. Okay. Those were observations of Jan every time he was at the playground for a period of five weeks; is that correct?

A. I don't know that. I don't know if it was observations every time he was at the playground.

Q. Did you have any discussions with Mora Katz, your special ed. teacher at the school, about those observations that were recorded?

A. I -- not -- not at the time that they were happening.

Q. School starts 12 days from now, can Jan Rankowski come to the Plummer playground and play in the playground?

A. I suspect that is what the judge will decide.

Q. I'm asking you.

A. I'm not going to make that decision.

Q. I'm asking you, you're the head of special education for the Falmouth School Department, Jan Rankowski and his parents want to go 12 days from now to the Plummer playground so that he can use the playground, can he do that?

A. I wouldn't make that decision.

Q. So your answer is, you're not going to make the decision?

MS. HEWEY: Objection, your Honor. The statute specifically says it is the principal's. It is an unfair question.

THE COURT: Yeah, it is argumentative.

MR. COLES: I'll withdraw the question.

BY MR. COLES:

Q. Do you deal with Barbara Powers, the principal of he Plummer School?

A. Yes.

Q. On a daily basis?

A. Not every day.

Q. Is it her decision to allow or not allow someone to use the playground, a student, during recess times?

A. I believe it is.

Q. No one else has the authority to prohibit or allow a student to play in the playground?

A. I wouldn't -- I don't know that, that no one else has that. I assume the superintendent could have that authority, too.

Q. Do you have that authority?

A. No.

Q. Exhibit 11, first page, sets out very briefly the so-called home schooling law; do you have that in front of you?

A. Exhibit 11?

Q. Defendant's Exhibit 11, a two-page letter, dated December 23, 2003.

A. I'm still looking for it.

MS. HEWEY: In order to speed things up --

THE WITNESS: I don't think I have that.

MS. HEWEY: Let me give her my copy.
There it is.
(Pause.)

MR. COLES: You can have these.

BY MR. COLES:

Q. I want to show you a copy -- this letter was drafted by legal counsel, wasn't it?

A. We worked with legal counsel before on many matters.

Q. CC, at the bottom of the second page, Eric Harlan, Esq. He is the attorney who prepared this letter; is that correct?

A. I can't tell you whether Eric prepared this or not.

Q. Did you prepare this letter?

A. I just said, I can't tell you whether Eric prepared it or I. We probably worked on it together.

Q. The first page, toward the bottom, item number five, use of potentially hazardous areas, dot, dot, dot, is supervised by a qualified employee of school, what do those three dots mean that have missing words?

A. I don't know what those three dots mean.

Q. Gymnasium, laboratories -- is there a laboratory at the Plummer School?

A. I honestly don't know what those dots mean and I don't know if there is a laboratory anymore.

Q. Well, you signed this letter, Exhibit 11, did you not?

A. Yes, I believe I did.

Q. And you're telling the Court that you don't know what those three dots mean?

A. I do not have a clue as to what those three dots mean. No, I don't.

MR. COLES: Nothing further.

THE COURT: Thank you. Attorney Hewey?

MS. HEWEY: No questions.

THE COURT: Thank you.

MR. COLES: Call Mora Katz please.

THE COURT: You may step down, please. The reporter has requested a break and I'm going to grant it. We will take about a 10-minute recess.

MR. COLES: Thank you very much. I apologize for going over my hour and a half.

(Whereupon, at 2:49 a.m., the Court recessed.)

(After recess.)

MR. COLES: I call Gayle Fitzpatrick.

 

Reported by: Timothy Thompson, RMR, CRR Official Court Reporter

(This transcript was scanned from a certified copy of the original and converted to text using OmniPage Pro 14.)

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