3. TESTIMONY OF GAYLE FITZPATRICK

MR. COLES: I call Gayle Fitzpatrick.

THE COURT: Sure.
Please stand and raise your right hand.
Thank you.

THE CLERK: State your name and spell your last name.

THE WITNESS: Gayle Fitzpatrick, G-A-Y-L-E, F-I-T-Z-P-A-T-R-I-C-K.

THE CLERK: Do you swear 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: Yes, I do.

THE CLERK: Please be seated.

GAYLE FITZPATRICK, called by the Plaintiffs, having been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. COLES:

Q. You're Gayle Fitzpatrick, mother of Jan Rankowski?

A. Yes.

Q. You're one of the plaintiffs and you attended everyone of the depositions that I took of the defendants; is that correct?

A. Yes.

Q. You were there when I took the deposition of Barbara Powers and she produced the so-called special education file, Powers Exhibit 2?

A. Yes.

Q. Was there anything missing from Powers Exhibit No. 2?

A. Yes, there was a substantial number of documents missing.

Q. What was missing specifically from --

MS. HEWEY: Objection, how can Mrs. -

THE COURT: That is foundation and I'll sustain the objection on that basis.

MR. COLES: I'm laying the foundation, your Honor.

THE COURT: Okay.

THE WITNESS: My son's educational files are this pile.

BY MR. COLES:

Q. That is Exhibit 19?

A. Yes. They have been given to the Falmouth School Department yet only a portion of them showed up.

Q. Were these, Exhibit No. 19, proposed Exhibit 19, the three ring -- three three-ring binders, were they given to the Falmouth School Department's attorneys before he was suspended on November 7th, 2003?

A. Yes, they were.

Q. They had in their possession months before or years before?

A. Some of these files go back to the year 2001, when we moved into Maine.

Q. There are files for 2002?

A. Files for 2002, 2003, 2004.

Q. And all of those documents, all of those assessments were given to the Falmouth School Department?

A. Yes. In fact, they signed documents for them or sent me letters saying they received them.

MR. COLES: Move to introduce Exhibit 19, your Honor, three three-ring binders of assessments.

THE COURT: Attorney Hewey?

MS. HEWEY: I don't object.

THE COURT: Thank you. They are admitted.

MR. COLES: Thank you, they are right here.

BY MR. COLES:

Q. What is your educational background in teaching, Ms. Fitzpatrick?

A. I have a bachelor's in fine arts and a masters in education. I have been a teacher in private schools, public schools and foundations for over 25 years.

Q. Do you lecture on autism at all?

A. I'm an information specialist for the Autism Society of America. I developed the PowerPoint for the Autism Society of Maine, which I have delivered to over 50 school systems and service providers in the state of 2 a child with a disability and the state of Maine.

Q. Your son, Jan, is home-schooled?

A. Yes, he is.

Q. When he was in 2nd grade he was at the Lunt School in the Falmouth School Department?

A. Yes, he attended school half days in Falmouth. The last six weeks of school he went for a full day. While he was in public school he continued to receive services through a private team outside of school.

Q. When you say a private team, that has nothing to do with the Falmouth School Department, is that correct?

A. Correct.

Q. All of his needs as a special student are being met by providers outside of the Falmouth school system?

A. Yes. He has a team of eight professional providers.

Q. Does he have a neuropsychologist who works with him?

A. Yes, he has a neuropsychologist, a speech language therapist, behavioral specialist, in-home support personnel, private tutors, yes.

Q. Do you pay for all of these people?

A. Yes, we do. We pay for them as well as some of the funding is picked up through Medicaid because Jan is a child with a disability and the state of Maine assists us.

Q. Does it cost the Falmouth School Department one penny for these outside providers?

A. No, it does not.

Q. Approximately per year how much does it cost you and your husband?

A. We personally probably spend about $20,000 a year. There is probably another 10 or 20 thousand spent through the State of Maine.

Q. Your husband is Charles Rankowski?

A. Yes, he is.

Q. He is the biological father of Jan?

A. Yes, he is.

Q. Your son is home-schooled?

A. Yes.

Q. Do you know how many home-schooled students there are in the United States?

A. There is somewhere between 1 and 2 million.

MS. HEWEY: Objection. Objection. Objection.

THE COURT: The basis, please?

MS. HEWEY: She has no foundation for telling us how many home-schooled students there are.

MR. COLES: I'm laying a foundation.

THE COURT: Lay some foundation. Go ahead.

BY MR. COLES:

Q. Have you gathered information as to how many home-schooled students there are?

A. Yes, because I am part of several list services on the computer of home-school students as well as home-school students with Asperger's.

Q. How many home-schooled students to your knowledge are there currently in the United States?

MS. HEWEY: Objection, that would be based on hearsay.

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

THE WITNESS: In the United States there is between 1 and 2 million students being home-schooled today.

BY MR. COLES:

Q. To your knowledge how many home-schooled students are there in the state of Maine currently?

A. Approximately 4500, 5,000.

Q. Is that number growing as far as you know?

A. It is growing. It is especially growing among children with Asperger's disorder or autism spectrum disorders.

Q. Your son is frequently assessed by his outside providers?

A. That is why there is -- yes, that is why there is nine inches of assessments there.

Q. How frequently is he assessed?

A. Because my son is home-schooled with a private team, we have ongoing assessments as the team decides. We have monthly meetings and every month we are usually doing a functional behavioral assessment and we do what other assessments are necessary at that point, whether they be behavioral assessments, speech assessments, psychological assessments, cognitive assessments. Yes, it is an ongoing process. He was assessed, he received an annul assessment last month. Next month he is having another assessment.

Q. So is it fair to say that he is assessed approximately once a month by his WRAP team?

A. Yes, by his WRAP team as well as by individual assessments beyond that.

Q. Have you or your husband ever invited the Falmouth School Department to attend these WRAP meetings to sit in on assessments?

A. We invite them every month and, although they have never come, my son's case manager from Sweetser sends them e-mail of the minutes of the meeting as well as all documents that occur during the meeting.

Q. Ms. Fitzpatrick, you understand that the school district has made allegations that your son threw rocks on September 24th, 2003.

A. Yes.

Q. Were you and your son even on the playground on September 24, 2003?

A. No, we were not.

Q. Where were you on that date?

A. Occupational therapy.

Q. Do you have records that support where you were on that date?

A. Yes, I have the Medicaid billing for occupational therapy on that date because Medicaid is -- the State of Maine was paying for that service.

Q. So, if there are any records or information or hearsay that you or your son were on the playground on September 24th, that would be incorrect?

A. That would be incorrect.

Q. Now, you met on September 25th, 2003, with Barbara Powers and Barbara Katz; is that correct?

A. Mora Katz.

Q. I'm sorry, Mora Katz. Barbara Powers and Mora Katz?

A. Yes.

Q. What was the purpose of that meeting?

A. My son had been bullied several times on the playground by other children even prior to our September 11th meeting, at which time I brought that up. I was concerned that there did not seem to be a protocol that I could follow because I don't work for the school and I didn't know what to do about this. So I asked to meet with those people and say, well, what do we do? And Charles bullied a mom. I have no authority. What is the procedure we should follow?

Q. In your 33 years in the Falmouth School Department did you ever receive any written communication from the school department outlining the school department's harassing or bullying policy?

MS. HEWEY: Objection.

THE COURT: Basis?

MS. HEWEY: She has testified that he was in the school for one year.

THE WITNESS: I have a daughter who is in the school, also.

MR. COLES: I believe the witness has testified that he was in second grade at the Lunt School and has been home-schooled with special services, that he is still part of the Falmouth School Department even for those limited services.

THE COURT: The question is whether you had ever received such a document. You may answer that question.

THE WITNESS: Not for either of my children.

BY MR. COLES:

Q. You have another child in the Falmouth school system?

A. I have a daughter, Bridget, who was in the Falmouth school system for two years. She currently attends Catherine McAuley High School.

Q. In the two years that she attended Falmouth school -- Falmouth schools, did you ever receive an anti-harassment or bullying letter from the school department?

A. No.

Q. Now, you understood that your son was being followed around from September 30th to November 7th of 2003?

A. Yes.

Q. That was at the playground at the Plummer School?

A. Yes.

Q. Did anyone ever tell you that they were following your son around and taking notes of what he was doing?

A. No. And that really surprised me because in 25 years of working in the field of education I know there is a procedure to do something like that. You have to get parental permission to do that for purposes of privacy.

Q. Had you ever seen any child followed around the playground in all your years of education and someone taking notes as to their behavior?

A. Occasionally for a day but not for six weeks.

Q. Did you request that the school provide you with a copy of the so-called snooping notes of your son?

A. Beginning on October 1st I wrote a request for these because my son looked significantly different compared to his peers with adults following him with clipboards. I wrote on October 21st, October 31st, again on October 31st, and again on November 5th, and asked: Are there people taking data, observing my son, following my son and/or recording any information about him?

Q. Did you ever get a response to that request?

A. On November 7th I received a letter in the mail that was a copy of an e-mail from Barbara Powers. She said, we are not assessing your son, which is not an answer to the question that I asked.

Q. You were not asking for assessments, you were asking for following and observation notes; is that correct?

A. Right. I wanted to know why people were following my son with a clipboard.

Q. They never answered that question?

A. No, they did not.

Q. Did you ever hear -- after November 24th, 2003, did you ever hear from the Falmouth School Department to set up a new date, a new meeting up on February 12th, 2004, to discuss Jan's suspension?

A. No, I received the letter from Superintendent Brinn, telling me to in effect seek legal action.

Q. He was telling you to file a complaint with civil rights --

A. Not Superintendent Brinn, excuse me, Chairman of the School Board Brinn.

Q. That is Defendant Brinn, who acts as chairman of the school board?

A. Yes.

Q. Telling you to file a discrimination action?

A. Yes.

Q. Your son is the most overassessed child in New England, isn't he?

MS. HEWEY: Objection.

THE COURT: Sustained.

BY MR. COLES:

Q. Is your son assessed -- strike that. Your son has not played with his peers for almost his entire academic year 2003-2004; is that correct?

A. Yes.

Q. How has that affected your son?

A. He has become depressed, which is one of the main things we never wanted to happen. The school system was given his program mission and statement and we always have been concerned about my son becoming depressed because 70 percent of individuals with Asperger's develop a secondary diagnosis of severe depression. Isolation has made my son feel very depressed. He has put on 20 pounds. He cries almost every day; he never used to cry before. He is lonesome. He feels like people think that he is dirty or contagious.

MS. HEWEY: Objection to what she thinks he feels like.

THE COURT: Sustained.

THE WITNESS: He did write something last night, he dictated to me how he felt. May I read it?

MR. COLES: No.

THE WITNESS: Okay.

BY MR. COLES:

Q. I'm going to on show you, Ms. Fitzpatrick, 12 photographs of the Plummer playground, marked a Plaintiff's Exhibit 18, and ask you if these are fair representations of the playground taken on May 6th of this year at the Plummer School playground.

A. Yes, they are.

Q. Any rocks on that playground?

A. No. The playground is bark-covered and pounded-down gravel.

MR. COLES: Move to introduce Exhibit 18.

THE COURT: For the record, how many photos is that?

MR. COLES: Twelve.

THE COURT: Twelve photos.

MR. COLES: Twelve photos with one clip, your Honor.

THE COURT: Thank you. Any objection?

MS. HEWEY: I haven't seen than.

THE COURT: I'm sorry. (Pause.)

MS. HEWEY: I have no objection.

THE COURT: Thank you. Exhibit 18 is admitted.

BY MR. COLES:

Q. After May 6th, 2004, did rocks mysteriously appear on the Plummer playground?

A. Rocks and large pieces of broken tree branches and that sort of thing started appearing.

Q. Did those items exist last fall when your son was playing on the playground?

A. Absolutely not.

Q. Who knows your son better than you and your husband?

A. I would have to say his neuropsychologist, Greggus Yahr, who sees him weekly.

MR. COLES: No further questions.

THE COURT: Thank you. Attorney Hewey.

MS. HEWEY: Thank you.

CROSS-EXAMINATION

BY MS. HEWEY

Q. Good afternoon, Ms. Fitzpatrick. Good afternoon.
I would like to show you Defendant's Exhibit No. That's a copy of an e-mail that Barbara Powers, the principal at Plummer-Motz, sent you on Friday, October 21st, 2003. On the bottom and then on the top is a copy of your response, which you sent to Ms. Powers also on Friday, October 31st, 2003; isn't that true?

A. Yes.

MS. HEWEY: I offer Defendant's Exhibit 1.

MR. COLES: No objection.

THE COURT: Thank you. It is admitted.

BY MS. HEWEY:

Q. Okay. Now, in Ms. Powers' e-mail she is telling you some of the disciplinary consequences that apply to Plummer-Motz students when they misbehave; is that right?

A. Yes.

Q. And in response you write:
I appreciate your sharing information about the consequences, which Plummer-Motz students face for noncompliance with staff. I would also be interested in hearing of the consequences Plummer-Motz students face for noncompliance with parents, caregivers, friends and family, however, Jan Rankowski is not a student of Plummer-Motz School and I do not have time to peruse interesting data.
That is what you wrote right?

A. That is part of that paragraph, yes.

Q. And you were saying, weren't you, that in your view disciplinary consequences that apply to students enrolled at Plummer-Motz don't apply to your son because he is home-schooled, right?

A. When my son swore or when he swears, he gets into the car and is taken home. Plummer-Motz behavioral standards as a Level II behavior, when a child swears on the first occasion, he is given a warning; on the second occasion he is asked to sign a paper, called a reflection sheet. As a parent I do not want my child swearing so we get in the car and go home.

Q. Okay. We will deal with that.

A. Okay.

Q. We will talk about what you do in a minute, I just want to understand how you understand this works.
Do you understand that, because Jan is hare-schooled, he does not -- the disciplinary consequences that apply to students at Plummer-Motz do not apply to him?

A. Jan is not at Motz, he is at home.

Q. That is what I'm saying, he is not a Plummer-Motz student --

A. Right.

Q. -- he is home-schooled?

A. Right.

Q. And if a Plummer-Motz student engages in inappropriate behavior on the playground, there are certain disciplinary consequences that that child is going to suffer, right?

A. If a typical child of Plummer-Motz School - that is correct. But a child like my son, who is neurotypically challenged, a separate behavior plan is made up.

Q. Right. And the reason for that is that, if somebody is challenged than you want to have a behavior plan that is designed specifically to meet that child's challenges, right?

A. Right, which is why my son's team in combination with the State of Maine Department of Behavioral and Developmental Service had developed a program for my son like that last July, which was given to the school system at a September 11 meeting. We have that plan, which is different and in some cases more severe than the plans that they use.

Q. Okay --

A. Yes.

Q. -- that wasn't my question.

A. Oh, I'm sorry.

Q. Okay. So let's take this by steps and you will get a chance to explain that. Your son is home-schooled?

A. Correct.

Q. And Plummer-Motz students have certain disciplinary consequences if they engage in inappropriate behavior, right?

A. Yes, they are written out, as there is a program that has been delivered to us, called Level II, Behaviors, yes.

Q. Okay. And, well, actually I probably have that, that would help us talk about that.

A. Okay.

MR. COLES: I probably have it but I don't see it here.

THE WITNESS: Actually, I have a copy of it here.

Q. Okay.

MR. COLES: To assist the Court, I have Plaintiff's Exhibit 16, which is Level II Behaviors.

MS. HEWEY: Okay. Or even better, Defendant's Exhibit 10.

MR. COLES: The same thing.

BY MS. HEWEY:

Q. Let me show you Defendant's Exhibit 10. This is the Level II Behaviors, a copy of which was given to you; is that the document you were just referring to?

A. Yes, Mora Katz delivered this to us at her deposition.

Q. Okay. So you didn't get it during the time that Jan was at school?

A. No, we received this in late June of this year.

Q. Okay. But in any case you do understand that there are certain disciplinary consequences that apply to students at Plummer-Motz, right?

A. Yes.

Q. And it's your position that those disciplinary consequences don't apply to your son because he is home-schooled, right?

A. No, that is not my position.

Q. Okay. So you think that your son should have the same discipline that students at Plummer-Motz have if he engages in inappropriate conduct?

A. Yes, and he has never done any of these things.

Q. Okay. So when you said in Exhibit 1, I appreciate you sharing this information, however, Jan Rankowski is not a student at Plummer-Motz and I do not have time to peruse interesting data, what did you mean?

A. I meant that it was -- I meant it was interesting that she had told me that information and in response to the three questions I asked her for the third time in that e-mail. That e-mail, if you will read the next sentence, says: However interesting, this does not respond to the questions I am asking you for the third time. Is somebody following my son with a clipboard?

Q. Okay.

A. It was an evasive piece of information that Mrs. Powers was giving to me in response to my third request.

Q. Okay, let's talk about the person with the clipboard then.

A. Okay.

Q. That person's name is Virginia Gilbert, right?

A. Sometimes Virginia Gilbert followed my son with a clipboard, sometimes Mora Katz followed my son with a clipboard.

Q. And you said that you met with Ms. Powers on September 26th, I think you said?

A. September 25th, Mora Katz took handwritten notes at that meeting.

Q. Okay. And you met with them, you said, to convey your concerns about bullying, right?

A. Yes. And Mora Katz noted that in the minutes she had written down.

Q. You need to just answer my questions and you will have an opportunity to explain everything you need to, okay?
Now, at that meeting, in addition to you talking about your concerns about bullying, Ms. Powers also outlined to you some concerns that other children had raised about Jan; isn't that right?

A. She told me that other children had come to the office and said some children were mimicking my son, making fun of him and calling him a weirdo.

Q. And did she also tell you that children had complained about Jan kneeing him in the groin and using threatening language and throwing rocks?

A. She not only told me that, more is that reflected in notes that Mrs. Katz took of that meeting.

Q. Okay. Now, in any case at that meeting you and -- excuse me, can I ask that you put down your notebook and answer my questions?

THE WITNESS: I'm --

MR. COLES: Your Honor, the witness is allowed to look at anything to refresh her recollection.

THE COURT: She has not indicated that she has a memory failure. Her testimony should be from her memory. If she can't remember and needs to have her memory refreshed, we will address that then.

THE WITNESS: Okay. So I should put it down unless I need to look?

THE COURT: Yes. Thank you.

THE WITNESS: Sure.

BY MS. HEWEY:

Q. Now, at that meeting you and Ms. Powers and Ms. Katz agreed that it made sense to have an adult on the playground monitoring while Jan was playing; isn't that right?

A. The decision that was made was that the playground needed more supervision.

Q. And then on September 29th Virginia Gilbert was introduced to you and your son as the person who would be providing that monitoring, right?

A. She was introduced to me as an individual that Jan could report to if children bullied him. Jan does not recognize people's faces but he does, however, recognize people's voices. To that point he had been reporting his problems to me but again I -- I had no authority over these children. So I said, if there is an individual who could introduce yourself to Jan on a daily basis so that he recognizes her voice, he knows that that is who he is supposed to tell, that will be the most useful procedure, yes.

Q. Okay. So the purpose for Virginia Gilbert was Jan to have somebody to report to; is that right?

A. Yes. And to monitor the playground in addition. At that point there were 200 children on the playground at 4th grade recess and five adults. I complained that this did not seem to be enough supervision and Mora Katz's notes say we need much more supervision on the playground.

Q. Okay. One of the purposes of having Virginia Gilbert in your view was to enforce rules and guard against bullying of Jan; is that right?

A. Yes.

Q. And so she was introduced to you on the 29th, right?

A. Yes.

Q. And you continued to see her on the playground when Jan was there repeatedly when you brought your son, right?

A. Yes. Even if Jan and I were there alone, Virginia came out with her clipboard and took notes.

Q. And so it was no surprise to you then, was it, that Virginia Gilbert was there? She was introduced to you, you saw her every time you came, it was no surprise that she was there.

MR. COLES: Objection. Compound question, your Honor. If counsel could ask one question at a time?

THE COURT: Well, it did contain a lot of stuff but -- if you can break it down, please?

MS. HEWEY: Okay.

BY MS. HEWEY:

Q. She was there every time or many of the times that you went to the playground with your son, right?

A. Correct.

Q. And when you and your son were there, she was there in close proximity to your son, right?

A. Right. That is why I wrote a letter on the 21st of October.

Q. I'm not asking you about the letter.

A. Okay.

Q. Just answer my questions, okay?
And one of the reasons that you understood that she was going to be there was to make sure that the rules were enforced and that your son wasn't bullied, right?

A. Yes.

Q. So it was no surprise to you that Virginia Gilbert was supposedly following your son around, was it?

A. Up until mid October it was not. At that point it seemed unnecessary because there was no longer any bullying going on. When I wrote Barbara Powers and asked her about that, I said, Virginia's job seems to be quite complete so why is she following my son with a clipboard?

Q. Okay. Now, when Virginia was there, starting on the 29th and continuing all the time that you were on the playground with your son, she had a clipboard; is that right?

A. Correct.

Q. And so it was no surprise to you then that she was taking notes about your son.

A. I was surprised when she was taking notes about my son. I did not find that out definitely until the 24th of December, two months after I first asked if that was taking place.

Q. Okay. So she was there virtually every day that you were there, she was taking notes on a clipboard but it was a surprise to you that she took notes; is that right?

A. I did not know what she was doing with the clipboard.

Q. Okay. In any case --

A. That is why I wrote a letter, asking. I had no idea what she was doing.

Q. You asked the -- you told the principal that you thought that having Ms. Gilbert have a clipboard was upsetting to Jan and you asked the principal that she not do that, right?

A. No, I asked the principal if Virginia Gilbert was following my son, taking documentation notes of any kind. I continued the paragraph saying, an adult following my son with a clipboard all day makes him look significantly different from his peers. He is already with his mother and often in-home support worker from Woodfords. He has two adults with him, a third adult is making him look a little strange_ Could you please explain to me what is going on.

Q. After you said that, Ms. Gilbert stopped using the clipboard, didn't she?

A. Ms. Gilbert was continuing to carry a clipboard around on the October 31st. My fourth e-mail --

Q. So it took four e-mails?

A. Yes, it did.

Q. Let's talk about November. Now, on November 7th --

A. Yes.

Q. -- you were on the playground with Jan for a portion of the time that he was on the playground, right?

A. I was on the playground with Jan and a Woodfords Family Services employee.

Q. You weren't with Jan when he and Mora Katz got into a conflict over the way he was using the tire swing?

A. I was there.

Q. You were there?

A. Yes, I was.

Q. Did you see that Jan swung the tire swing so fast that a first-grader fell off?

A. A first-grader did not fall off the tire swing. Jan was told to stop pushing the swing. 1st graders were told by their teacher to stop being so wild on the swing. This is in Mora Katz's notes as well.

Q. Okay.

A. And I arrived at that moment.

Q. Okay. So you arrived after this incident had begun; is that right? A. I arrived when the 1st grade teacher took her children into the building, reprimanding them.

Q. So you didn't see a 1st grader fall off the tire swing when Jan was pushing it?

A. No, I didn't.

Q. You did, however, see Jan yelling at Ms. Powers and Ms. Katz, didn't you?

A. No, I did not. When I came over, my son Jan had his eyes closed, his hands over his ears in a position like this (indicating). He was extremely distressed.

Q. Do you remember Jan telling Ms. Katz and Ms. Powers that he didn't have to listen to them in a rather loud voice?

A. My son did not say he didn't have to listen to him but he did have a problem with Mora Katz's language. Jan, because he takes a literal interpretation of language.
And Mora Katz was saying to him when I was there: You need to stop pushing the swing when people tell you.
And Jan said that is not a need. A need is getting eight hours sleep at night, having a glass of water and doing what your mother tells you. That is not a need.
And Mora at that point kept saying, He is not listening to me.
And I said, No, he is misinterpreting you. He has to stop pushing a swing, if you tell him, because it is a rule, it is not a need.
At which time Mora said, I didn't understand this distinction and this problem with children with Asperger's and language.
And she also wrote that in her notes that day, that this was -- this was the crux of the problem. Asperger's is primarily a language disorder.

Q. And your son was calling Mora Katz a bastard, wasn't he?

A. No, he never called Mora Katz bastard.

Q. You never heard him say that?

A. Absolutely not.

Q. You never heard him say that to the principal, either?

A. I was with my son. My son did not call Mora Katz a bastard. In fact, I asked Mora Katz, when my son was asked to stop pushing the swing, if he stopped pushing the swing and she said yes.
And I said, Then I don't understand what the problem is.
And she said, I felt I had to lecture him and talk to him about pushing the swings.
And I had said, Well, why? He already stopped pushing it.
At which point Jan tried to explain things to me and Mora kept speaking over him and interrupting him. Children with Asperger's tend to be frank and blunt to the point that it looks rude.
And Jan said, You are interrupting me and speaking over me and it is annoying.
She said, This is the disrespect we were referring to.
I said, You are in fact speaking over him and please let the child talk.
He never swore at her, he does not swear. On one occasion in six weeks Jan was reported as swearing the word, bastard, in response to children swearing at him. He does not swear.

Q. Okay. So let's talk about Mora Katz, first. So what you're basically telling us is that Mora Katz just isn't dealing with your child in the appropriate manner, she doesn't understand his specific issues; is that right?

A. I cannot answer for Ms. Mora Katz, I don't know.

Q. You're telling us that she was -- she was using the word, need, when that is something that your child doesn't understand; is that right?

MR. COLES: Objection, this is argumentative. These are admissions by defendant and counsel seems to be arguing with the client or with our client.

THE COURT: I disagree. Overruled. You may answer that question.

THE WITNESS: On that particular specific Mora and Jan were clearly miscommunicating.

BY MS. HEWEY:

Q. And she seemed to be dealing with your child in a way that was not effective, right?

A. I can only say this in the sense that my son, covering his ears and closing his eyes and being in a very tense posture -- children with autism often communicate behaviorally as opposed to words -- that behavioral posture showed me that he was terrified and stressed out by what was taking place.

Q. And you certainly wouldn't want Ms. Katz or anybody at the Falmouth School Department to do anything that would terrify your son, would you?

A. I would hope no one would ever think to do anything to terrify add-1d.

Q. And you would want Ms. Katz and everybody else at the Falmouth School Department to have the information and the understanding about your child's disability so that they would not do anything to terrify your son, right?

A. Yes. That's why I sent them that nine inches of documents over the last few years.

Q. Okay. Well, in any case, after the incident with Ms. Mora Katz at the tire swing Jan ran over towards child's world -- Kids' World, didn't he?

A. No.

Q. He never went over to Kids' World or --

A. He didn't run over. He and a 2nd grade friend came up to me.
I said to Jan, We have to leave soon because we are going to piano classes.
And he said, May I walk with -- I'm going to say Bob, it is not his real name -- may I walk with Bob over to the Kids' World and speak to him and say good bye before we go?
And I said, Yes, you may.

Q. And then what happened?

A. Barbara Powers came up and started talking to me and saying we had to leave the playground. She came in on my left, Mora Katz was on my right, Jan's in-home support worker was next to her. I said, We are about to leave, Barbara, I need to get a hold of him, he is heading over there. And I followed my son.

Q. And then what happened?

A. The playground was -- for some reason the open area was very empty. I was about 10 feet behind my son and his friend, who I'm calling Bob, it is not his real name. A teacher came out of the building on the left, walked up to the two children, took one child by the hand and said, You are not allowed to come within 10 feet of him because you used bad words. She left with this other child.

Q. Was that Tammy Paul?

A. I believe it was.

Q. Okay. And then what happened?

A. I was about 10 feet behind my son. I caught up to him and he -- he turned around and he had tears pouring down his face.
And I said, Why are you crying?
And he said, Because that lady came up and said a mean thing to me. She said I couldn't come within 10 feet of one of my best friends.
And I thought, well, that can't possibly be true. Maybe she was saying it to him maybe he has been using some bad words and isn't supposed to be near you so let's ask her. So I walked --
Ms. Paul is it?

Q. Yes.

A. -- was sitting with a student on a bench and I walked over to her with my son and my son's in-house support worker and I said, Did you just walkup to my son and say to him you cannot come within 10 feet of this child because you used bad words? You need to understand, my son is echolalic, he can repeat commercials of things that people said to him in the same words. She said, I don't have to answer that question.
And I said, He is 'standing here, crying, it is just like ayes or no question, I have to explain to him what's going on.
So I asked her again and she says, I don't have to answer that question. And she left.

Q. And then what happened?

A. I moved with my son to a bench approximately 40 -- 30 or 40 feet behind the playground because he was crying his eyes out and the playground was full of children, who would be looking at him. That was very disrespectful. And I let him sit on the bench. I stood about 5 feet away. His behavior plan, my son is tactile defensive, and when most children are upset, you can go and put your arms around them and comfort them, but for my son that feels like a hot poker. So his behavior plan is for an adult to standby for four or five minutes, allow him to process the information because he has very slow processing, something that happens in realtime for him, it is like movie frames moving at a very slow pace so it's sometimes --

Q. I'm just asking you what happened.

A. I'm telling you.

Q. I don't need to understand.

A. He was trying to process the information and he was crying.
Barbara Powers at that point stepped towards my son to say something to him and he jumped up and said, I don't want to talk to anybody right now.
And I stood in front of him, between he and Mrs. Powers, and I said, Is there something imperative that you have to tell him right now?
And she said, Yes, I need to tell him to get out of here, he has to leave.
And I said, Well, we already said we were leaving but he is crying right now. He is a nine-year-old boy, tears were running down his cheeks in the playground, and as soon as he gets settled I'd be happy to take him out.
And we sat there for probably another five or 10 minutes until he settled down. And he didn't know how to leave because all of the kids were there, so I said, When you are ready to leave, tell me and we will run. It was about an acre to the car. We will just hold hands and we will runback to the car together.

Q. He never called Ms. Powers or Ms. Katz a bastard?

A. No.

Q. He never yelled that he didn't have to listen to them?

A. He said to Mrs. Katz: Need to stop pushing the swing is not a need. A need is brushing my teeth every night, going to bed, eating healthy food.
He is autistic, need is a highly specific word, a part of his --

Q. Okay, you have answered the question.

MR. COLES: I wonder if counsel could stop interrupting the witness. She would like to really answer the question.

MS. HEWEY: She is telling me about autism and all I wanted to know is whether she said something.

THE COURT: Please ask your next question.

BY MS. HEWEY:

Q. Okay. As of -- well, you went to a service team meeting on the 24th with Mr. Coles, right?

A. Yes.

Q. And at that meeting the school -- well, Ms. Crowell talked to you about the functional behavioral assessment, right?

A. Ms. Crowell personally recommended it.

Q. Okay. And you understood that the purpose of a functional behavioral assessment was for the school to collect data so that Jan would be able to -- so that they could develop a behavior plan to make Jan be able to better play on the playground; is that right?

A. Yeah. And I asked her if she had already read the behavioral plan he had from Woodfords Family Services and the Maine Department of Behavioral Development Services.

Q. Okay. But you understood that the purpose that what they were asking you for was to be able to collect data to put together a behavior plan, right?

A. Right, a different behavior plan, I presumed, because he has a behavior plan.

Q. And you left that meeting saying that you would think about it, right?

A. Yes. The behavior plan paperwork said that Mrs. Crowell wanted to determine whether my son's behaviors were age-appropriate. Because he is a child with autism, his behaviors are not age-appropriate. And at that time Mrs. Crowell had in her possession a seven or eight-page document of adaptive behaviors, saying he was really young and at the same time Mora Katz had taken notes at our meetings, saying that my son's communicative behavior was that of a four-year-old and his adaptive behavior was that of a six-year-old. So, to do an assessment to see if be was age-appropriate in light of the assessment done 30 days before, saying he was not age appropriate, did not seem necessary or useful or purposeful to us in any manner.

Q. Okay. But nonetheless, even though it didn't seem useful or appropriate to you, you left the meeting, telling the Falmouth School Department people that you would think about it, correct?

A. Right.

Q. And than you wrote a letter, you made the decision that you didn't want to go through the functional behavioral assessments; is that right?

A. I e-mailed my son's team with the information from the meeting and the paperwork, and my son's team of eight professionals said --

Q. Excuse me.

A. -- I did not make the decision.

THE COURT: Tine out, please.

MS. HEWEY: Your Honor, she is going to get into a hearsay answer that --

MR. COLES: Counsel keeps on interrupting the witness, who is testifying. Perhaps, if she could allow the witness to testify then she could raise an objection.

THE COURT: I'm sustaining the objection to that part of the testimony that is hearsay. It is sustained. I'm going to ask you to please ask your next question.

MS. HEWEY: Okay.

BY MS. HEWEY:

Q. Let me show you Defendant's Exhibit 9. That is a letter that you sent to the Falmouth School Department, to Barbara Powers of the Falmouth School Department, notifying them that you had decided not to go through with the functional behavioral assessment?

A. This is the one I sent to Mrs. Powers.

Q. Okay. You sent that letter to Ms. Powers and the letter is dated November 24th, 2003, right?

A. Yes.

MS. HEWEY: I offer Defendant's Exhibit 9.

MR. COLES: No objection.

THE COURT: Thank you. It is admitted.

BY MS. HEWEY:

Q. Okay. In the first paragraph you say that we feel that having Falmouth School Department employees do a functional behavioral assessment does not serve Jan Rankowski's best needs. Jan is a home-schooled student. Is that what you wrote?

A. Yes.

Q. And tell me why is it that Jan, being a home-schooled student, had anything to do with whether the functional behavioral assessment was in his best interest or not?

A. Because Jan is a home-schooled student, he has a team of eight professionals who do his assessments. SoI understood my son's professional team, having done assessments to determining assessments, they know more about my son; the Falmouth School Department doesn't really know anything about him.

Q. Okay. And the Falmouth School Department wanted more information and that is why they wanted to do the functional behavioral assessment; isn't that true?

A. Yeah. In deposition I said that they hadn't read those assessments so I could understand why they would have wanted more information. If they hadn't read what existed, they might have wanted some more.

Q. Okay. Did you send them the assessments, again?

A. Which assessments are you referring to?

Q. The assessments that -- well, tell me, are there assessments that you had that specifically addressed how to address behavior on a playground?

A. Yes.

Q. There is? Show me that assessment.

MR. COLES: Exhibit No. 19 is right here, your Honor.

THE COURT: Thank you.

MR. COLES: It is my understanding that this is a part of Ms. Hewey's hour and a half. (Pause.)

THE WITNESS: Yes, I have a program here by Woodfords Family Services. Let's see -- July of '03. Prior to that is Jan's adaptive behavioral assessment. Also in that packet is Jan's social skill program and--

Q. May I see that?

A. Yes, you may. It is from -- let' see -- it goes from this to -- there is about 30 pages here. There is another 10 delivered to the school in June from his developmental pediatrician.

Q. June of this year?

A. No, June of -- we met on June 10th, 2003, with the school. We met again on September 11.

Q. My question is, where are -- where in this exhibit deals with specifically how to address issues on a playground?

A. t depends on the issue. If it is an issue with speech, it is in the speech section. If it is an issue with safety or community involvement, it is in a section of Woodfords Family Service. Which section are you asking for?

Q. I'm asking for both.

A. Oh, Woodfords Family Services. Do you want me to read?

Q. Yes.

A. Okay. It is goal number one. Jan will recognize unsafe situations, given a verbal prompt, 80 percent of the opportunities presented. As of last fall data sham on 10, seven that with assistance --

THE COURT: That is in that document?

THE WITNESS: Yes.

THE COURT: You're reading from that?

THE WITNESS: He was able to do it 67 percent of the time.

MS. HEWEY: Okay. Your Honor, I would like to pull out the sections of that exhibit that she claims address functionally how to assess him, how to dea1 with playground incidents. And what I propose doing is, I can take them out of my copy and mark them as a defense exhibit, if that is -- if that seems to be the best way. I don't -- I -- I can't think of any other way to do it.

MR. COLES: Your Honor, I think she is complicating it. Very simply, we take a yellow Post It note and put it on the first page so your Honor can look at it if counsel wants to refer to it.

THE COURT: Your choice, whichever.

MS. HEWEY: Post It is fine with me.

THE COURT: We are spending more time talking about it than doing it.

MS. HEWEY: Right. (Pause.)

MR. COLES: Let the record reflect, we are putting a yellow Post It note on it.

THE COURT: I gather those are not numbered pages we can identify for the record.

MS. HEWEY: Right. If they were --

BY MS. HEWEY:

Q. So you have marked in that exhibit where the assessment that you believe gave the school department enough information to be able to address behavioral incidents on the playground; is that right?

MR. COLES: Objection. That is not what the testimony is.

THE WITNESS: Actually, at the service plan meeting of September 11th my son's service plan says on the first page that his behaviors will be managed by his family and Woodfords Behavioral Services using this program. The service plan states that.

BY MS. HEWEY:

Q. Okay, my question is, Have you marked in exhibit -- Plaintiff's Exhibit 19 the pages of that exhibit which you believe gave the school department sufficient information to be able to address behavioral issues with regard to your son on the playground?

A. My son's behavioral issues were being addressed by his team. The school wrote that on the service plan.

Q. Okay. So is it your testimony then that the school didn't have to address your son's behavioral issues, that was for someone else to address?

A. The school service plan says that my son's behavioral program and behavioral issues will be addressed by his family and Woodfords Services. I'm not saying what the service plan says. Ms. Crowell typed that up.

Q. I'm not asking you for the service plan --

A. Okay.

Q. -- so I want you to listen to my question. My question is, are you telling us that your son's behavioral issues were to be addressed by Woodfords and by you but not the school?

A. No, I did not say that.

Q. Okay. So the school would also have to address your son's behavioral issues; is that right?

A. My -- that question is confusing to me because, if my son were ever alone, probably.

THE COURT: Reask it then, please.

THE WITNESS: He is not alone but if he were alone, I would suppose so.

BY MS. HEWEY:

Q. Oh, oh, I understand. So if you are there, you are the person who is going to manage his behavior; is that right?

A. My son's behavior isn't managed. My son's behavior or program is a positive behavior program. I will do what this program says, which is to verbally prompt him and script him. That is what his program is. He is a child with a severe disability that needs more assistance than other children and I or other adults with him, whether it be his speech person, myself, Woodfords, whoever is with him, prompts that information.

Q. Okay.

A. That is what we have to do for him.

Q. You have to know how to prompt that information in order to --

A. Assist him, yes.

Q. Okay. That's fine.

A. Yes.

Q. Let me just ask you -- well, have you marked in the Exhibit 19 the pages that you believe address behavioral issues on the playground?

A. I haven't done it here but we actually have an entire copy that was delivered to the PET on June 10th, 2003 and again on September 11th, 2003.

Q. So are you telling us that the pages that you're talking about --

A. I could go through this right now and pick out all 38 of them but there is some actually right there that would make it quicker.

MS. HEWEY: Do you have those there, Mr. Coles?

MR. COLES: What?

THE WITNESS: Maybe I have them.

MR. COLES: Your Honor, my understanding is that the three volumes of prior assessments, all of that either went directly to Drummond-Woodsome a year, year and a half ago, or the Falmouth School Department many years prior to November 7. What she is saying is she can't find her own assessments.

THE WITNESS: I have them both here -

MS. HEWEY: Okay.

THE WITNESS: -- the packets that were given to the school. I could find them out here.

MS. HEWEY: No, that is fine. That is fine.
Excuse me, your Honor, Mr. Coles and I have agreed that the witnesses will be sequestered and I think that perhaps one of Mr. Coles' witnesses --

MR. COLES: He is an expert, your Honor.

MS. HEWEY: It doesn't matter.

MR. COLES: I have never heard of an expert being sequestered, your Honor. Perhaps --

THE COURT: He is not a fact witness in this case?

MR. COLES: No, he is an expert witness.

THE COURT: Okay, he may stay.

MS. HEWEY: Okay, if he is giving no facts, that is fine.

BY MS. HEWEY:

Q. This June 10th and September 11th are the two documents that you gave the school before Jan started using the playground; is that right?

A. Correct.

Q. And that you believe that gave them sufficient information to be able to address behavioral incidents if they arose on the playground; is that right?

A. We had agreed that my son would be with an adult, with his parents, or Woodfords Family Service. We did not ask the school to be responsible for our son. Anyway, we do not leave our son at anywhere at any time without an adult who understands and follows his program completely. That is the level of assistance that he needs.

Q. Okay.

MS. HEWEY: Can I mark these as Defendant's Exhibits?

MR. COLES: I have got Plaintiff's Exhibit 23, are we going to make it a joint exhibit? Mark it Plaintiff's Exhibit 23; is that all right with you?

MS. HEWEY: All right, your Honor, I'm marking as Plaintiff's Exhibit 23 the two packages of information that she has just talked about and I would now like to offer Plaintiff's Exhibit 23.

THE COURT: No objection?

MR. COLES: No objection, obviously.

THE COURT: Admitted. Thank you.

BY MS. HEWEY:
Now, do you have Exhibit 9 in front of you? Is that this? Yes.
Do you see that the last page -- the last line, can you read to us the last line of that exhibit?

A. In the interim we will be bringing Jan to the playground to play with 8- to 10- year-old children.

Q. So the school department. told you that you couldn't bring Jan, you were telling them that you were going to bring him anyway; is that right?

A. Yes.

Q. And you said that you're going to play -- to play with other 8- to 10- year-old children, is that right?

A. Correct.

Q. Now, you were bringing Jan actually to play on the playground with 1st graders as well as his own peer group, weren't you?

A. Yes, that is true.

Q. So you would bring Jan actually for the 45 minutes where Lunt School students were there and Plummer-Motz School students were there at different points of time during the 45-minute block that you brought Jan to school, to the playground, right?

A. We brought Jan to the playground as his personal school schedule allowed so some days we would not be there at all. We might be at occupational therapy or French class. Some days we might be there for two recesses, some days we might came in at the end half of the recess.

Q. Some days you were playing when there were students from the Lunt School, 1st and 2nd graders, right?

A. Right.

Q. Okay.

MS. HEWEY: I have no further questions.

A. No, sometimes 1st graders were out there. Many times during the block between 3rd and 4th grade recess there was just my son and I and his in-ham support worker. Occasionally, in early September younger children were there but they stopped coming as the weather cooled off. And certainly they were there on November 7th.

THE COURT: Thank you.

REDIRECT EXAMINATION

BY MR. COLES:

Q. Ms. Fitzpatrick, marked as Plaintiff's Exhibit 16 is the Level II Behavior Sheet, which you obtained from the Falmouth School Department?

A. Yes.

MR. COLES: Move to offer Plaintiff's 16.

THE COURT: Any objections, Attorney Hewey, Plaintiff's 16, which is the level II Behaviors?

MS. HEWEY: Well, I already introduced it. Besides, it is the same thing but I don't mind it coming in twice.

BY MR. COLES:

Q. You have Plaintiff's 16 in front of you?

A. Yes.

Q. It sets out a series of behaviors and then punishments that a principal of the school can do when they see misbehavior; is that correct?

A. Yes.

Q. In terms of suspension, which is third-time Level II Behaviors, repeated teasing, harassing, punching or kicking, apparently is the behavior which can result in suspension. Do I read that correctly?

A. I believe so.

Q. Has Jan Rankowski last fall repeatedly teased, harassed, punched or kicked other children requiring his suspension?

A. My son has never done any of those behaviors even once.

Q. Okay.

MR. COLES: I have nothing further. Thank you.

THE COURT: Thank you.

MR. COLES: Call Dr. Yahr.

THE COURT: Thank you, Ms. Fitzpatrick.

(Whereupon, Greggus Yahr, PhD, being present in the courtroom, took the witness stand.)

 

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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