                                                                             FILED
                                                                         Sep 20 2017, 9:07 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      Edward D. D’Arcy, Jr.                                      Mark A. Busby
      Michael J. Progar                                          Indianapolis, Indiana
      Merrillville, Indiana

      Sheryl A. Bradtke McNeil
      McNeil Kopka Pinkus Dolin & Eads,
      LLC
      Crown Point, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      The Hope Source, Max Sigmon,                              September 20, 2017
      Julie Brant Gordon, and Dr.                               Court of Appeals Case No.
      Momi Yamanaka,                                            49A02-1607-CT-1656
                                                                Appeal from the Marion Superior
      Appellants-Defendants,
                                                                Court.
                                                                The Honorable Cynthia J. Ayers,
              v.                                                Judge.
                                                                Trial Court Case No.
      B.T., by his mother and next                              49D04-1411-CT-36677
      friend, Melissa Troutman,
      Appellee-Plaintiff.




      Barteau, Senior Judge


                                       Statement of the Case
[1]   In this interlocutory appeal, we are asked to determine whether testimony

      obtained by facilitated communication is admissible in evidence. In this case of
      Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017              Page 1 of 18
      first impression in Indiana, we hold that in certain situations it can be. Here,

      we affirm the trial court’s preliminary decision regarding the procedure for

      determining the admissibility of the contested evidence.


                                Facts and Procedural History
[2]   B.T. is a minor, non-verbal child with severe autism, who was fourteen years

      old at the time of the trial court’s order. He is unable to verbally communicate

      intelligibly. When B.T. was twelve years old, he received therapy for his autism

      through Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi

      Yamanaka (collectively “Hope Source”). B.T. began typing sentences, via

      facilitated communication, using a supportive typist, also known as a facilitator,

      in October 2013.


[3]   “Facilitated communication is defined as follows: a method of helping an

      individual produce typewritten material on a keyboard or communication

      device with the intention of compensating for difficulties in motor control.”

      Appellants’ App. Vol. I, p. 96. “The technique was developed by Rosemary

      Crossley in Australia in the 1970’s and introduced to the United States by Dr.

      Douglas Biklin in 1989.” Id. When facilitated communication is initially being

      used, the communicator typically is supported above or below the wrist by the

      facilitator. Id. The goal is for the facilitator, over time, to move the support

      further back on the arm or shoulder so that there is less direct contact until there

      is no contact. Id. That technique is known as “fading.” Id. The facilitator

      applies backward pressure and centers the communicator after each letter is


      Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 2 of 18
      typed to prevent the communicator from repeatedly striking the same key, one

      of the manifestations of behavior also known as perseveration. Id. Because

      facilitated communication is a joint activity, however, there is potential for

      what is known as “cuing,” where the facilitator may knowingly or unknowingly

      anticipate or in another way assist the communicator in selecting certain letters.

      Id.


[4]   B.T. uses an iPad containing an assistive typing program/application that reads

      each letter and then each word typed by B.T. B.T.’s facilitator stands or sits

      along his right shoulder holding the shoulder of his shirt. He no longer requires

      wrist or elbow support during his communications. Prior to the use of

      facilitated communication, B.T. could not communicate in any typed or written

      form. Facilitated communication is now the sole method by which B.T. can

      communicate.


[5]   The following allegations were made in the complaint against Hope Source. In

      November 2013, B.T.’s behavior changed. He expressed via facilitated

      communication that he did not like to work with his guide at Hope Source,

      Max Sigmon. After being dropped off one morning, B.T. vomited upon seeing

      Sigmon approaching him, and B.T.’s mother was called to return to the school

      to take him home. Thereafter, B.T. began sleeping in his parents’ bed every

      night. At roughly the same time period, B.T.’s music therapist, who had

      allegedly been told by Julie Gordon, President of Hope Source, that B.T. “just

      plays dumb here for us and won’t type,” advised Melissa that she noticed there

      was something not quite right with B.T. Appellants’ App. Vol. II, p. 13.

      Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 3 of 18
[6]   B.T. typed to his music therapist that it would be hard to trust her because of

      “other therapists.” Id. During an assistive typing session with his mother, she

      asked B.T. why he did not like working with Sigmon. He responded that he did

      not want to get in trouble, that Gordon was Sigmon’s sister, and that “I don’t

      want to make anyone mad.” Id. At a meeting with Gordon and Lisa Chandler,

      Programs Director at Hope Source, B.T.’s mother expressed her concern that

      B.T. did not like Sigmon and asked that he not be forced to work with him.

      Gordon informed B.T.’s mother that B.T. was not allowed to decide which staff

      member he wished to work with and stated that Sigmon would continue to be

      B.T.’s guide.


[7]   During another assisted typing session with his mother, B.T. allegedly typed

      that he did not like Sigmon. After his mother asked him why, B.T. responded

      that “he thinks im retarded.” Id. at 14. B.T. also typed that Sigmon was scary

      and asked if he was going to get in trouble if he did not want to be around him

      anymore. B.T. then typed that he did not want to discuss the matter further.


[8]   B.T.’s mother resumed the conversation later that evening, however, during

      which she asked B.T. if Sigmon had ever touched him inappropriately. B.T. is

      alleged to have typed that Sigmon placed his hand on B.T.’s butt and on his

      penis on two different occasions during the summer.


[9]   Melissa notified Hope Source that B.T. would no longer be attending Hope

      Source for therapy. B.T.’s parents met with Dr. Yamanaka and shared B.T.’s




      Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 4 of 18
       statements with her. Yamanaka allegedly stated to Melissa that she took “full

       responsibility for [B.T.] still working with [Sigmon].” Id.


[10]   An investigation was conducted by the Indiana Department of Child Services.

       The complaint was deemed “unsubstantiated” in a report filed on May 19,

       2014. Id. at 63. The family case manager noted that on numerous occasions

       during his interview, B.T. would look away from the keyboard while typing

       with the assistance of his usual supportive typist, who was not his mother.


[11]   On November 7, 2014, B.T., by his next friend, his mother, Melissa Troutman,

       filed a civil lawsuit against Sigmon; his sister, Julie Brant Gordon, President of

       The Hope Source; Dr. Momi Yamanaka, a licensed psychologist and Clinical

       Supervisor at The Hope Source; and, The Hope Source.


[12]   Hope Source sought to depose B.T. prior to trial. On September 17, 2015,

       Sigmon filed a motion to bar the use of a facilitator at B.T.’s deposition. The

       other defendants joined in Sigmon’s motion and filed their own motion seeking

       to bar the use of facilitated communication for the deposition or any future

       proceedings in the case. B.T. through his mother, Melissa, filed an objection.


[13]   On March 23, 2016, the trial court issued an order denying the request to bar

       the use of facilitated communication during the deposition. Appellants’ App.

       Vol. II, pp. 95-100. The trial court granted Hope Source’s petition to certify the

       decision for interlocutory appeal. A motions panel of this Court accepted

       jurisdiction of the interlocutory appeal, but, while retaining jurisdiction,

       remanded the case to the trial court, directing it to hold a hearing pursuant to

       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 5 of 18
       Indiana Rule of Evidence 702 to create a record regarding the science

       surrounding facilitated communication and its admissibility. Id. at 108-09.


[14]   The trial court scheduled a hearing as ordered by this Court, but the parties and

       the trial court quickly realized that the time allotted would not be sufficient to

       provide an adequate record to aid the trial court in issuing its order for review

       by this Court. A brief enlargement of time was granted by this Court, and, after

       another hearing, the trial court entered its order finding, in pertinent part, that

       the science surrounding facilitated communication is largely unsettled.

       Appellants’ App. Vol. III, p. 66. As such, the trial court found that B.T. carried

       the burden of establishing that he is the one communicating by way of

       facilitated communication. Id. at 67. No testimony was presented at the

       hearing. Only the argument of counsel was heard based upon briefs prepared

       for the hearing.


[15]   More specifically, the trial court found that a determination of whether the

       facilitator could “effectively communicate with the witness and reliably convey

       the witness’s answers to the court” lends itself to empirical rather than scientific

       proof. Id. The trial court further held that cases from other jurisdictions suggest

       that the reliability of facilitated communication should be determined on a case-

       by-case basis. Id.


[16]   The trial court concluded, while rejecting cases from other jurisdictions

       applying evidentiary rules at the outset of the determination, that fact-specific

       questions could be devised for B.T. which would demonstrate whether the


       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 6 of 18
       answers were B.T.’s, or were under even the most subtle of influences by the

       facilitator. Id. If the trial court was convinced that the facilitator was

       “competent, trained, and skilled in order to honestly and candidly transmit

       communications, under oath, from B.T. to the court, then the facilitator may be

       appointed to carry out such a task either at the deposition or at the time of

       trial.” Id.


[17]   The trial court held that it must be satisfied that the communicated thoughts

       were those of B.T. and not the facilitator. Otherwise, the statements would not

       be allowed in evidence. Id. at 68. The trial court placed the burden of making

       the request for holding such a demonstration hearing on the parties. Id. This

       appeal ensued.


                                     Discussion and Decision
[18]   This Court remanded the case to the trial court to issue an order after holding

       additional hearings. More particularly, the trial court was directed, pursuant to

       Indiana Rule of Evidence 702, to create a record regarding the science

       surrounding facilitated communication and its admissibility.


[19]   Indiana Evidence Rule 702 provides as follows:

               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.



       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 7 of 18
               (b) Expert scientific testimony is admissible only if the court is
               satisfied that expert testimony rests upon reliable scientific
               principles.
[20]   The parties approach this appeal from different vantage points. Hope Source

       contends that the trial court erred by denying its request to bar the use of

       facilitated communication at any stage of the proceedings. Specifically, Hope

       Source notes that the trial court specifically refused to consider the articles

       submitted by B.T. and his mother about facilitated communication because

       there was no proponent for the evidence. As such, the deposition testimony of

       Dr. Howard Shane, submitted by Hope Source, was uncontroverted and

       explicitly opined that the validity of facilitated communication was unsettled if

       not debunked.


[21]   Melissa, on behalf of B.T., argues that the trial court has not officially denied

       Hope Source’s position on the reliability of facilitated communication under

       Indiana Rule of Evidence 702, focusing on the trial court’s conclusion that the

       issue of B.T.’s competency must be demonstrated first by way of facilitated

       communication before the court would consider the validity or use of facilitated

       communication for any proceeding.


[22]   The trial court’s ruling relied on analysis of caselaw from other states as this is a

       case of first impression in Indiana. We will highlight the rationale used by the

       various courts in arriving at their determinations to explain our decision here.


[23]   In Matter of D.S.S. v. Mark S., 593 N.Y.S.2d 142 (Fam. Ct. 1992), the family

       court was asked to determine the admissibility of a sixteen-year-old, non-vocal,


       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 8 of 18
       autistic child’s out-of-court statements concerning alleged abuse by her father.

       The statements were made by way of facilitated communication. The court

       was asked to analogize facilitated communication to other forms of

       communication such as American Sign Language. The court declined to make

       the analogy, concluding that the Frye1 test applied and the validity of facilitated

       communication had not been established.


[24]   Another early case involving the admissibility of out-of-court statements made

       through the use of facilitated communication was Matter of M.Z., 590 N.Y.S.2d

       390 (Fam. Ct. 1992). At issue were statements made by a ten-year-old partially

       verbal child with Down’s syndrome. A pre-trial hearing was held to determine

       this issue. The court concluded that there was insufficient evidence that

       facilitated communication had been generally accepted or was reliable, that

       there was not enough evidence to show that it could be successfully used by a

       child with Down’s syndrome, and that its use would not be permitted in a fact-

       finding hearing.


[25]   Next, in People v. Webb, 597 N.Y.S.2d 565 (County. Ct. 1993), the court

       considered the admissibility of a child victim’s testimony utilizing facilitated

       communication during a grand jury proceeding. The child suffered difficulty in



       1
         Frye v. United States, 293 F. 103 (D.C. Cir. 1923) (general acceptance test is used to determine the
       admissibility of scientific evidence), superseded by rule as stated in Daubert v. Merrell Dow Pharms., Inc., 509
       U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (federal rules do not require general acceptance as
       precondition to admissibility of scientific evidence; rules give trial court the task of ensuring expert’s
       testimony rests on reliable foundation and is relevant).



       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017                         Page 9 of 18
       performing such motor skills as speech. During the grand jury testimony, the

       facilitator was equipped with headphones through which white noise was

       produced, making it impossible for the facilitator to hear the questions asked of

       the child. The facilitator was issued an oath to assist the witness without

       adding, subtracting, or changing the testimony of the communicator. Unlike in

       prior cases, the grand jury was able to see the process being used. The court did

       not find the Frye test to be applicable, but noted that it would hold a hearing in

       limine prior to trial for further information about the technique of facilitated

       communication.


[26]   In Matter of Luz P., 595 N.Y.S.2d 541 (N.Y. App. Div. 1993), the issue was the

       use of facilitated communication in a child protective services proceeding

       involving an eleven-year-old, non-verbal, autistic girl, who alleged by this

       method of communication that her parents were sexually abusing her.


[27]   Prior to the fact-finding hearing, the trial court ordered a Frye hearing. The trial

       court dismissed the action after the department of social services requested a

       continuance to obtain expert witnesses in order to meet the burden placed on

       the department to establish reliability under Frye.


[28]   On appeal, the trial court’s dismissal was reversed and the matter was

       remanded to the trial court for further proceedings. The appellate court held

       that just as there was no need to conduct a Frye hearing in order to appoint an

       interpreter for the child’s Spanish-speaking parents, there was no need to

       conduct such a hearing for the facilitator whose only task was to assist the child


       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 10 of 18
       in communicating, not to translate the questions or answers presented to and

       supplied by the child.


[29]   Storch v. Syracuse Univ., 629 N.Y.S.2d 958 (N.Y. S. Ct. 1995), involves the

       admissibility of statements allegedly made by a young autistic girl who cannot

       speak. Through facilitated communication, she claimed to school officials that

       she had been sexually molested by her father. The girl was removed from her

       family’s care, and the accusation was filed against her father. The family court

       judge who heard the petition applied the Frye test, and determined that

       facilitated communication was not generally accepted as reliable within the

       relevant scientific community. The court disallowed the girl’s testimony and
                                                                      2
       the petition against the father was withdrawn.


[30]   State v. Warden, 891 P.2d 1074 (Kan. 1995), was a direct appeal raising issues

       about a victim’s competency and ability to communicate. The twelve-year-old

       victim, J.K., was diagnosed with autism and severe or profound mental

       retardation. In September 1989, J.K. became a resident of the Institute of

       Logopedics (“IOL”). Prior to his admission at IOL, J.K. was described as

       being non-verbal and non-expressive, having limited receptive language, and

       non-responsive to verbal directions. Various testing classified J.K. between the




       2
         The parents later filed an action against several people involved in the investigation, seeking damages for
       state and federal rights violations, malicious prosecution, fraud, and malpractice. The matter was ultimately
       resolved in favor of the defendants on summary judgment.

       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017                   Page 11 of 18
       mental ages of twenty-seven months and five years. However, J.K. was found

       to have good motor skills.


[31]   A speech pathologist at IOL believed that J.K. understood more than he could

       express, and, after February 2002, when IOL had decided to use facilitated

       communication with some of its students, the speech pathologist selected J.K.

       as one of her first students to use this method. While using this method, he

       disclosed accusations of sexual molestation by the defendant. The defendant

       confessed his misconduct to a co-worker and to a police officer.


[32]   Prior to trial, however, the defendant sought to suppress J.K.’s out-of-court

       statements made through facilitated communication, and sought to prevent J.K.

       from testifying in court using that method, arguing that the technique was not

       generally accepted under Frye.


[33]   After holding extensive hearings, the trial court ruled that Frye did not apply

       because the issue was whether J.K. was communicating. The trial court found

       that J.K. was communicating and allowed only the actual letters typed by him

       to be admitted in evidence. No interpretation of the typed statements was

       allowed because that might fall within the realm of scientific testimony, making

       Frye applicable.


[34]   On appeal, the Kansas Supreme Court noted two propositions that shaped its

       decision of the appeal. First, the court observed that although facilitated

       communication has not received unanimous support in the scientific

       community, each instance of the use of facilitated communication should be

       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 12 of 18
       evaluated for validity. Second, one of the premises upon which facilitated

       communication finds its basis is the assumption that the communicator or

       speaker is competent.


[35]   The court held that “We are not persuaded that statements produced through

       facilitated communication are scientific evidence subject to the Frye test.

       Facilitated communication is just what its name implies: a method of

       communication.” Id. at 1088. The court expressed, however, that when

       statements made via facilitated communication are admitted at trial, the

       credibility and weight to be given those statements are issues for the finder of

       fact. Id. Furthermore, testimony challenging the validity of such

       communication, such as evidence of the technique involved in facilitated

       communication, its origins, and acceptance within the pertinent scientific

       community, would be admissible. Id.


[36]   Since this is a case of first impression in Indiana, it is worth going into

       additional detail about other facets of the Warden court’s ruling. Concerning

       the issue of the protocol involved in selecting the facilitator, the court noted that

       the admission of evidence, and the manner in which it is received, is left to the

       discretion of the trial court. Id. at 1089. After concluding that no abuse of

       discretion had been established, the court suggested a better practice for the

       admission of a witness’ in-court testimony via facilitated communication. The

       court acknowledged the recommendation that if the usual facilitator was used,

       the court should direct that person to divert their eyes and wear headphones so

       that the person would not be aware of the questions propounded to the witness

       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 13 of 18
       before facilitating responses. Id. at 1090. However, the court also noted in that

       particular case, by the time the request was made, it was too late for the witness

       to become used to the changes in procedure, which lacked the needed

       familiarity and predictability for him to be able to communicate. Id. Further,

       the court emphasized that the facilitator should be given an oath to repeat the

       communicator’s responses in English to the best of his or her skill and
                                                                                  3
       judgment, and without influencing the responses. Id.


[37]   Next, with respect to a hearing on the communicator’s competency, the trial

       court was faced with whether J.K. was unavailable under the state’s child

       hearsay statute. The trial court considered the challenge to be one of the

       competency of the witness.


[38]   On appellate review, the court held, after noting the statutory provision

       regarding the general rule of qualification of witnesses, and the requisite

       showing for the disqualification of witnesses, that no person should be

       disqualified based upon a disability. Id. at 1093. The court concluded that an

       evaluation must be conducted on a case-by-case basis to determine the validity

       of facilitated communication as respects the particular person. Id. The

       facilitator should utilize headphones to avoid hearing the questions propounded

       to the witness. Id. Further, fact-specific questions should be asked to insure the




       3
         In some cases, the facilitator reads aloud each letter as it is typed. In other cases, the communicator’s
       responses are viewed by the court as they are typed. In any event, the oath defines the role of the facilitator
       as providing support to the communicator, and not serving as an advocate or interpreter.

       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017                      Page 14 of 18
       answers are not subject to influence or cuing by the facilitator. Id. The witness

       must be sworn, and the facilitator should be appointed and placed under oath.

       Id.


[39]   The court held that the burden of establishing the incompetency of the witness

       rests with the challenging party. Id. at 1094. The decision whether the burden

       has been met lies in the discretion of the trial court. Id.


[40]   Hahn ex rel. Barta v. Linn Cty, Iowa, 191 F. Supp. 1051 (2002), was a case

       involving allegations of disability discrimination under both state and federal

       law, challenging the defendants’ refusal to fund facilitated communication after

       unsubstantiated allegations of abuse were communicated by Hahn, an autistic,

       disabled adult, through this technique, which he learned while working in a

       supervised setting operated by the county.


[41]   Linn County contracted with Discovery Living, a private, not-for-profit

       corporation, providing residential support services to persons with disabilities,

       of which Hahn was one. Linn County, through the Linn County Department

       of Human Resources Management, operated a sheltered workshop facility for

       persons with disabilities. Hahn participated in that workshop program, called

       Options of Linn County, and learned to communicate via facilitated

       communication while working at Options. Linn County, however, decided to

       cease the use of facilitated communication in the workshop setting, ultimately

       prompting the lawsuit.




       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 15 of 18
[42]   Discovery Living, however remained open to the notion of reinstating the use

       of facilitated communication with Hahn so long as he could pass a literacy test.

       The defendants did not ban the use of facilitated communication with Hahn at

       its facilities, but they remained steadfast in their refusal for funding such a

       venture. One of Hahn’s sisters agreed to the literacy test and employed a

       speech language pathologist, who provided input about how Hahn’s literacy

       could be assessed. Because the speech language pathologist was a paid

       consultant by Hahn’s sister, Discovery Living argued that the assessment

       should be made by a neutral party and not that person. A neutral party was

       agreed upon by the parties and she was given the sole duty of assessing whether

       Hahn had any reading capacity at all.


[43]   The court was encouraged by the parties to rule on the case based on its

       determination of the validity of facilitated communication. More specifically,

       the defendants filed a motion in limine to prohibit the admission of Hahn’s

       expert testimony of Dr. Biklen and Dr. Christopher Kleiwer, as lacking

       expertise, scientific support and personal knowledge relying on a Daubert

       objection. The court determined that the resolution of the case did not depend

       upon an evaluation of the legitimacy of facilitated communication, finding

       instead that the case turned on whether Hahn could communicate by using

       facilitated communication. Sua sponte, and without objection by the parties, the

       trial court requested that Hahn’s sister demonstrate facilitated communication

       with her brother.




       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 16 of 18
[44]   During the demonstration in chambers, Hahn did not look at the keyboard

       while communicating, and his responses lacked the expected typos. The court

       also found that Hahn’s sister was doing more than facilitating communication,

       instead directing Hahn’s finger to specific keys on the keyboard. The court

       concluded that the communication was not Hahn’s and that he had not

       exhibited any level of literacy.


[45]   In our opinion, an assessment of the evolving caselaw in this novel area leads us

       to the conclusion that there has been a shift from an initial focus on the

       reliability of the science involved, to an emphasis on the examination of the

       details of the application of facilitated communication to each specific case.


[46]   Turning to the present case, we recite the oft-stated principle that decisions

       regarding the admissibility of evidence lie within the trial court’s discretion.

       Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999). “Even if a trial

       court errs in a ruling on the admissibility of evidence, we will only reverse if the

       error is inconsistent with substantial justice.” Id.


[47]   We note that in deciding what procedure should be used to determine the

       admissibility of B.T.’s testimony, the trial court concluded that it must first

       decide whether B.T. was the one communicating by use of facilitated

       communication. Although some cases refer to this decision as one involving

       literacy, others deem the decision to be one involving competency. See Hahn,

       191 F. Supp. 1051 (literacy); Warden, 891 P.2d 1074 (competency).




       Court of Appeals of Indiana | Opinion 49A02-1607-CT-1656 | September 20, 2017   Page 17 of 18
[48]   Under Indiana Rule of Evidence 601, “Every person is competent to be a witness

       except as otherwise provided in these rules or by statute.” A determination as to

       a witness’s competency lies within the sound discretion of the trial court and is

       reviewable only for a manifest abuse of that discretion. Harrington v. State, 755

       N.E.2d 1176, 1181 (Ind. Ct. App. 2001). It is within the sound discretion of the

       trial court to determine whether a child is competent to testify based upon the

       court’s observation of the child’s demeanor and responses to questions posed to

       him by counsel and the court. Id. A trial court’s determination that a child

       is competent will only be reversed for an abuse of discretion. Id.


[49]   The trial court’s thoughtful decision including detailed findings and

       conclusions, which greatly aided our appellate review, serves as a roadmap for

       the determination if B.T. is testifying, an opportunity for the defendants to

       challenge his competency, and, if his testimony is admitted at trial, an

       opportunity to challenge his credibility by way of evidence challenging

       facilitated communication as a method of communication. We find no abuse

       of discretion in the trial court’s preliminary ruling on the request to bar the use

       of facilitated communication.


                                                 Conclusion
[50]   In light of the foregoing, we affirm the decision of the trial court.


[51]   Affirmed.


       Barnes, J., and Altice, J., concur.


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