Sunday, April 1, 2012

Judge: Wendrow family can continue its lawsuit over dismissed child abuse accusations -Michigan

By L.L. Brasier and John Wisely

An Oakland County family can continue its lawsuit against officials who took the children away and jailed the parents on charges of sexually assaulting their severely autistic daughter, a judge ruled Tuesday.

Julian and Thal Wendrow and their two teenage children are suing Oakland County, the Michigan Department of Human Services and Walled Lake Consolidated Schools in U.S. District Court.

Julian Wendrow was arrested in December 2007 and remained jailed for 80 days. Thal Wendrow was placed on an electronic tether, and their children were sent to foster care for months before prosecutors dropped the case in 2008.

The case against the Wendrows was based solely on statements their mute and autistic daughter, then 14, was said to have made using a widely debunked communication method called facilitated communication. The child's hands were guided by a trained aide using the method, but studies show it's the aide usually doing the typing.

The Wendrows filed suit in 2008. Many of the claims against prosecutors were dismissed because they are protected under governmental immunity.

Last year, the defendants asked that all the claims be dismissed. On Tuesday, Judge John Corbett O'Meara agreed to dismiss the parents' and brother's claims that they were treated unfairly because of their affiliation with the disabled girl. O'Meara concluded only the girl has standing to sue under the Americans with Disabilities Act.

O'Meara let stand a defamation claim against former Oakland County Prosecutor David Gorcyca, who sought the criminal charges and then publicly said after he left office that the Wendrows were guilty even though the case was dropped.

Oakland County Corporation Counsel Judith Cunningham said Tuesday that most of the claims against the county were dismissed. "We are nudging toward victory," she said.

O'Meara scheduled a trial on the remaining claims for June.

Sarah Prescott, an attorney for the Wendrows, said she disagreed with the judge's decision to dismiss the family's disability claims but is happy the girl's claim can be presented to a jury.

"To say that she can go forward against all these defendants is the heart of the case," Prescott said. "The quicker we can get to the courthouse steps, the better."

In his ruling, O'Meara also let stand several claims against the Walled Lake school district, which first reported the allegations, because the facilitated communication occurred at the school where the autistic girl attended classes. According to depositions, school officials knew the communication method was suspect.

Lawyers for the district did not return a message seeking comment on Tuesday's ruling. The Michigan Attorney General's Office, which is defending the state social workers involved, declined to comment.

West Bloomfield and its police department, also named in the suit, settled with the family for $1.8 million in 2011.

O'Meara refused to dismiss a claim against a state worker who is accused of violating the Wendrow children's rights when she took the girl for a gynecological exam that found no evidence of abuse. The worker also drove the couple's 13-year-old son to the police station, where he was interrogated for two hours.