Damaged (2 page)

“Yes, completely free.” Mary opened her laptop and hit the
RECORD
button discreetly, so he wouldn't be self-conscious. “I hope you don't mind if I record the session.”

“It's fine. I'm here because of my grandson, Patrick. I'll begin at the beginning.”

“Please do.” Mary liked his reserved, gentlemanly manner. His teeth were even but tea-stained, which she found oddly charming.

“Patrick is ten, and he's in the fifth grade at Grayson Elementary School in the city. We live in Juniata.” Edward pursed his lips, which turned down at the corners. “He's got special needs. He's dyslexic, and I think I need a lawyer to help with his school. I should have dealt with it before.”

“Okay, understood.” Mary got her bearings, now that she knew this was a special education case. Under the Individuals with Disabilities Education Act, a federal law, students with learning disabilities were entitled to an education that met their needs at no cost. She'd been developing an expertise in special ed cases and had represented many children with dyslexia, a language-based learning disability. There were differences in symptoms and degrees of dyslexia along the spectrum, but most dyslexic children couldn't decode, or put a sound to the symbol on the page, and therefore couldn't phonetically figure out the word because the symbols on the page had no meaning.

“He can't read at all. He thinks I don't know, but I do.”

“Not at all, even at ten?” Mary didn't hide the dismay in her tone. Sadly, it wasn't unheard of in Philly's public schools.

“No, and his spelling and letters are terrible.”

Mary nodded, knowing that most dyslexic children had spelling problems as well as handwriting problems, or dysgraphia, since handwriting skills came from the same area of the brain as language acquisition.

“I read to him sometimes, and he likes that, and I guess I kind of gave up trying to teach him to read. I thought he'd pick it up at school.”

“Have they identified his learning disability at school?”

“Yes. In second grade.”

“Does he have an IEP?” Mary asked, because under the law, schools were required to evaluate a child and formulate an individualized education program, or an IEP, to set forth the services and support he was supposed to receive and to help him achieve in his areas of need.

“Yes, but it isn't helping. I have it with me.” Edward patted a battered mailing envelope in front of him, but Mary needed some background.

“Before we get too far, where are Patrick's parents?”

“They passed. Patrick is my daughter Suzanne's only child, and she passed away four years ago in December. On the twelfth, right before Christmas.” Edward's face darkened. “I have no other children and my wife, Patty, passed away a decade ago.”

“I'm sorry.”

“Thank you. My daughter Suzanne was killed by a drunk driver.” Edward puckered his lower lip, wrinkling deeply around his mouth. “I retired when that happened. I'm raising Patrick. I was an accountant, self-employed.”

“Again, I'm so sorry, and Patrick is lucky to have you.” Mary admired him. “How old was Patrick when his mother passed?”

“Six, a few months into first grade at Grayson Elementary. He took it very hard.”

“I'm sure.” Mary felt for him and Patrick. Special education cases could be emotional because they involved an entire family, and nothing was more important to a family than its children. Mary felt that special ed practice was the intersection of love and law, so it was tailor-made for her. This work had made her both the happiest, and the saddest, she'd ever been as a lawyer.

“Finally, he's doing great at home. It's school that's the problem. The kids know he can't read and they tease him. It's been that way for a long time but this year, it's getting worse.”

Mary had seen it before, though dyslexia could be treated with intensive interventions, the earlier the better. “How's his self-esteem?”

“Not good, he thinks he's stupid.” Edward frowned. “I tell him he's not but he doesn't believe me.”

“That's not uncommon with dyslexic children. The first thing anyone learns at school is reading, so when a child can't do something that seems so easy for the other kids, they feel dumb, inferior, broken. It goes right to the core. I've had an expert tell me that reading isn't just about reading, it's the single most important thing that creates or destroys a child's psyche.” Mary made a mental note to go back to the subject. “Are you Patrick's legal guardian?”

“It's not like I went to court to get a judge to say so, but we're blood. That makes him mine, in my book.”

“That's not the case legally, but we can deal with that another time. What about Patrick's father? How did he die?”

“He broke up with Suzanne when she got pregnant. She met him up at Penn State. She was in the honors program but when she got pregnant, she dropped out. Suzanne could have been an accountant, too.” Edward shook his head. “Anyway, we heard he died in a motorcycle accident, two years later.”

“And when Suzanne dropped out, did she come home?”

“Yes, and I was happy to have her. Patrick was born, and Suzanne devoted herself to him. Since she passed, I'm all Patrick has now. I'm his only family.”

“I see.” Mary's heart went out to them both, but she had to get back on track. “When did you notice his reading problems?”

“Suzanne did, in kindergarten.” Edward ran his fingers over his bald head. “Then after she passed, I would try to get him to read with me, and we'd get books from the library. He didn't know the words, not even the little ones like ‘the.' He couldn't remember them either. But he's smart.”

“I'm sure he is.” Mary knew dyslexic children had high IQs, but their reading disability thwarted their progress in school. They often had retrieval issues, too, so they forgot names and the like.

“He does better when there's pictures, that's why he likes comic books. He draws a lot, too. He's very good at art.”

“So back to the IEP. May I see it?”

“Sure.” Edward opened the manila envelope and extracted a wrinkled packet, then slid it across the table.

“Bear with me.” Mary skimmed the first section of the IEP, and the first thing she looked at was Present Levels, which told her where a student was in reading, writing, math, and behaviors. Patrick was only on a first-grade level in both reading and math, even though he was in fifth grade. The IEP showed that Patrick had been evaluated in first grade but not since then. Mary looked up. “Is this all you have? There should have been another evaluation. They're required to reevaluate him every three years.”

“I didn't know that. I guess they didn't.”

Mary turned the page, noting that Patrick had scored higher than average on his IQ tests, but because he couldn't read, he had scored poorly on his achievement testing, which a district psychologist had administered, and the IRA, the curriculum-based assessment test that the teachers administered. She looked up again. “Is he in a special ed classroom or a regular classroom?”

“Regular.”

“Are they pulling him out for help with his reading?”

“No, not that I know of.”

“How about any small-group instruction? Does he get that?''

“No, I don't think so.”

“So what
are
they doing for him?”

“Nothing that I know of.”

“So they identified him as eligible for services, but they're not programming for him or giving him any services.” Mary wished she could say she was surprised, but she wasn't. “They're supposed to be giving him interventions, and he can learn to read if they do, I've seen it. I've seen wonderful progress with dyslexic children.”

Edward brightened. “What kind of interventions?”

“A dyslexic child needs to be drilled every day for his brain to connect sound and symbol, then language. There are many great research-based programs, and they work.”

“He hates school, more and more.”

Mary had seen this before, with dyslexic children. Early on, they might use pictures to make it look like they were reading, but by fourth grade, when pictures were gone and the words took over, the fact that they couldn't read became more evident. They couldn't read aloud and avoided group projects. The axiom was that children learn to read, then read to learn, but that was a heartbreak for dyslexics.

“Patrick gets nervous, and when he gets really nervous, lately, he throws up. He did it in school a couple times, already this year. They sent a note home, then they called me. The teachers don't want to deal with it anymore. But it's not his fault, it's his nerves.” Edward pressed his glasses up higher on his long nose. “The kids make fun of him, call him names. Up-Chucky. Vomit Boy. Duke of Puke. They make throw-up noises when he comes into the classroom.”

Mary felt for the boy. “First, have you taken him to a pediatrician?”

“Yes, but she said there's nothing medically wrong.”

“It could be from anxiety. Have they evaluated him to determine if anything else is going on?”

“Not that I know of.” Edward blinked, uncertainly.

“They should have done a social-emotional assessment, like the BASC test, which will pick up how he's feeling. It's a questionnaire that asks the child a series of question and it tells the psychologist if he's anxious, depressed, or shutting down. The evaluation determines what his programming should be. If they don't do the evaluation, they don't know what services or counseling he needs.”

“The teasing only makes him more nervous, and his teacher sends him to the guidance counselor. They say they send him there to calm down, but I think it's because they don't want him to throw up in the classroom. They said it's normal, they call it something.”

“It's called a ‘cooling-off room,'” Mary said, supplying him with the term of art.

“But he sits there for hours, like a punishment.”

“The school can't punish him for behaviors associated with his disability. For example, a child with ADHD will have a problem completing assignments on time. The teacher can't say to the child, ‘you have to stay in for recess or you can't go on a class trip.' They can't punish him for the manifestation of a disorder that he can't help. It's illegal and it's just plain”—Mary searched for the words, then found them—“cruel.”

“But wait, Mary.” Edward leaned over with a new urgency. “The worst of it is Patrick got hit in the face by a teacher's aide, Mr. Robertson.”

“My God, what happened?” Mary asked, appalled. She had heard horror stories, but this was the worst. Teacher's aide was a misnomer; aides weren't teachers, they could be a bus matron or a cafeteria worker. They couldn't teach, nor were they trained to work with children with behaviors.

“Patrick threw up and Robertson made him clean it up. Patrick got some on the desk, so Robertson punched him in the face and told him to ‘cut the crap.'”

“That's an assault!” Mary said, angry. “Robertson should have been arrested on the spot.”

“Patrick didn't tell anybody what happened, and Robertson told Patrick that if he told, he'd beat him up.” Edward frowned, deeper. “Patrick was so scared, he didn't say anything. When he came home that day, I asked him about the bruise on his cheek, it was swollen. He told me that he fell against the desk. I gave him Advil, I put ice on it. I believed him because he does fall, he can be clumsy.”

“Were there any witnesses to the assault?”

“No.”

“Any surveillance cameras that you know of?”

“No, only in the halls.” Edward shook his head. “The next day Patrick was really afraid to go to school. He begged me not to make him, so I didn't. By Friday, I started to think something was really wrong, and over the weekend, he finally admitted it to me.”

“Poor kid.” Mary felt a pang. “Did you call the police?”

“No, I called the school and I told them what Patrick said, and they said they would look into it. So then the school called back and said that Robertson had quit. They denied knowing anything about Patrick getting punched. They said they were going to investigate the matter.” Edward dug into the manila envelope again and pulled out a packet of papers. He grew more upset, his lined skin mottled with pink. “Then the next thing I know, yesterday, I'm being served with a lawsuit.”

“Who would be suing you?” Mary asked, incredulous.

“Robertson hired a lawyer named Machiavelli, if you can believe that, and they're suing me and the school district, claiming that Patrick attacked Robertson with a scissors.”

“What?”
Mary felt her blood begin to boil.

“It's a complete fabrication.” Edward handed Mary the suit papers. “Here, take a look. But I know my grandson, and he did not attack anybody with a scissors. He's not aggressive. He doesn't have it in him. It's not possible.”

“Bear with me while I read this.” Mary skimmed the cover letter on Machiavelli's letterhead, then she turned to the facts and read aloud:
“… the Defendant Patrick seized a scissors from the teacher's desk and lunged at Plaintiff with the weapon, attempting to do him grievous bodily harm.”

Edward scoffed in disgust. “That's false.”

“Has Patrick ever been disciplined in school, for fighting or violence?”

“No, not once.”

“What about when the other kids tease him?”

“No, never. He just cries or gets sick. He won't hit back, he's little.”

“Does he tell the teacher?”

“No, he hides it, like with Robertson. He doesn't want trouble.”

“Poor kid.” Mary flipped the pages to the causes of action, where it set forth claims against the O'Briens for battery, assault, and intentional infliction of emotional distress. Again, she read aloud,
“… Plaintiff was so frightened by the assault and battery by Defendant Patrick that Plaintiff has been unable to return to his position and was compelled to terminate his employment and seek psychiatric counseling…”