FYI Lawsuit over autistic child tears Sunnyvale neighborhood apart
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Vaishnavi Jayakumar (Inclusive India)
Sep 20, 2015, 11:38:46 PM9/20/15
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SUNNYVALE, Calif. (KTVU) -- A controversial lawsuit where two families are suing a third over the actions of their autistic child has rocked a Sunnyvale neighborhood.
As legal bills mount on both sides, a local autism group is trying to raise awareness about the case. Their message is not that there wasn't a problem, but that there should be a better way to resolve it.
Neighbors will tell you Arlington Court in Sunnyvale has been anything but quiet in recent years. At the center of it all is one house, and the couple that used to live there with their autistic son.
Two other families here are suing them, calling their child a public nuisance.
"Well at first I thought it was a joke. I thought nobody would possibly sue a small child for being a public nuisance," said Jill Escher of the Autism Society of the San Francisco Bay Area.
It is no joke.
The lawsuit cites a pattern of behavior from when the child was between 3 and 9 years old. That behavior included hitting other children, throwing things and wandering into neighbors' garages.
It alleges the parents failed to prevent harm to others. Jill Escher is in shock over the legal action.
"This could be us. This could happen to any family with an autistic child," said Escher.
The family at the heart of the suit has moved. Speaking to KTVU by phone, they say this lawsuit has taken a heavy toll on them and that they're doing the best they can within the legal system.
They say their focus in on their son and that they hope this case builds awareness of disability issues.
Legal experts say what happens next may have a wide-reaching impact.
"The fact that this case has made it this far and this much in legal fees have been expended in all likelihood, I think sets a dangerous precedent," said attorney Steven Clark. "When you look at a case like this you have to not only say is there a legal basis, but should we be doing this on moral basis?"
Meanwhile, on Arlington Court, neighbors say the lawsuit has been hard on everyone.
"It's a difficult thing but the bottom line is everyone needs to be safe," said neighbor Tracy May.
The lawsuit alleges the autistic child was not only a public nuisance, but had a negative impact on property values.
The Autism Society is trying to make other families aware of what's going on, in hopes they'll show their outrage at the courthouse, not with signs or protests, but with their presence.
Escher says the next hearing involves access to medical and school records for the child.
"This could have been any one of thousands of autistic children in our community. And all those parents have the right to know what's at stake for them," said Escher.
And even though the defendant and half the plaintiffs no longer live here, the legal proceedings continue.
The next hearing is set for Tuesday in Santa Clara County Superior Court.
Sunnyvale: Neighbors sue to declare autistic boy a public nuisance
By Tracy Seipel
Sep 18:
SUNNYVALE -- When neighbors complained about Vidyut Gopal and Parul Agrawal's young son with autism pulling children's hair, biting a woman and other menacing behavior, the couple said they did what they could to make it stop.
They hired caregivers, gave the boy special medication, and put him in therapeutic classes. But instead of bringing calm to Arlington Court, the Silicon Valley couple got slapped with a lawsuit that called their son a "public nuisance" -- and ultimately drove them out of their home of seven years.
Now, Gopal and Agrawal find themselves in the midst of a legal battle that has sparked outrage among parents of children with autism everywhere, and raised troubling questions about how to coexist with neighbors with special needs kids.
"This has been pretty devastating for us, but we are doing our best to cope with it," Gopal, an engineer at a Silicon Valley company, said Thursday.
The lawsuit -- filed last summer by two couples who lived in homes that flanked Gopal and Agrawal's house -- alleges that the boy's disruptive behavior also created an "as-yet unquantified chilling effect on the otherwise 'hot' local real estate market" and that "people feel constrained in the marketability of their homes as this issue remains unresolved and the nuisance remains unabated."
To Gopal and Agrawal's dismay, a Santa Clara County Superior Court judge last October issued a preliminary injunction against them to ensure their son does not strike, assault, or batter anyone in the neighborhood or their personal property. The case returns to court Tuesday, when a judge will hear arguments about whether the plaintiffs should have access to the boy's school and medical records.
Gopal and his wife, a research scientist at NASA Ames Research Center, said they remain focused on helping their son. But they hope this case "will raise awareness about autism and educate the public" about the challenges that families of children with autism face.
The plaintiffs could not be reached for comment. But some neighbors not involved in the legal case said they feel compassion for Gopal and Agrawal. Still, they believe the lawsuit was necessary after communication with the couple -- and requests that the parents better supervise and control their son's behavior -- broke down. The lawsuit claims that over the years the boy, now 11, had struck a baby with his hand, spit at and tried to ride his bicycle into neighbors, and repeatedly sat on a neighbor's cat.
"It was painful," said Sue Alford, a 61-year-old retired registered nurse who has lived for decades with her family in a home next to one of the families that sued Gopal and Agrawal.
"We all met with them and talked to them about their son, but they didn't see our point of view," Alford said. "We wanted the street to be a safe place for other children."
While she said she "didn't want to make enemies of any of my neighbors," she said outsiders should not judge the residents on Arlington Court.
"We went out of our way to be understanding and kind to him," Alford said. "When you see everything, all of the pieces will fit together and maybe there will be an understanding."
Nieves Diaz, 63, who lives across the street from Gopal and Agrawal's house, said the ordeal has "been very unsettling."
"It was awful, because he couldn't play outside with the kids," Diaz recalled of the times she would see the couple's son looking forlornly out of the front window at the other neighborhood children playing on the street.
"It was kind of sad," said Diaz, adding that any claim that the boy's presence in the neighborhood would threaten property values is unproven.
"They should do their research and make sure it's a fact," she said of the plaintiffs, Robert and Marci Flowers and Bindu Pothen and Kumaran Santhanam. "If not, they should keep their opinions to themselves." The Flowers last month moved from their rental home on Arlington Court.
Bay Area parents of children with autism, meanwhile, fear the lawsuit could lead to copy cat cases.
"What scared us in the Bay Area is that there are thousands of kids just like this one," said Jill Escher, president of the board of the Autism Society of the San Francisco Bay Area.
"Imagine if lawsuits like this were allowed to proliferate on such allegations. This could happen to all autism families at the drop of a hat. They would not know where to go."
Stephen Rosenbaum, a lecturer at the UC Berkeley Law School, who specializes in disability rights and is familiar with the lawsuit, said he is surprised the case has continued as long as it has.
"This is something that should never have gone to court, in my view," said Rosenbaum, who is also an associate professor at Golden Gate University School of Law. Instead, he said, it should have been resolved through an informal dispute resolution process or mediation; sources, however, say that route failed.
"The plaintiffs make it out to be that there's a monster at large in the neighborhood, but I know from the standpoint both as an attorney and as a parent myself of a young man who had a disability that there may be things that are the perception by the rest of the community that can be at odds with reality."
No matter what happens with their legal case, Gopal and Agrawal say they have lost hope of returning to their former home, which they now rent to another family.
"We have no intention," Gopal said, "of coming back."
Contact Tracy Seipel at 408-920-5343. Follow her at Twitter.com/taseipel.
Sunnyvale autistic boy's neighbors tell their story: compassion, frustration and finally a lawsuit
By Tracy Seipel
SUNNYVALE -- Defending their lawsuit against the parents of a young boy with autism who they say became a public nuisance, the two couples who sued said Friday they only turned to the courts because the family refused to rein in the child who repeatedly attacked their kids and traumatized their neighborhood.
"I find it offensive that people assume I have no compassion for an autistic family when I am simply trying to defend and protect my children from being assaulted," said Robert Flowers about the explosive public backlash that surfaced against him and his wife following this week's media accounts of their lawsuit against the boy's parents.
"This is not about autism. This is about public safety," said Flowers, who spoke publicly for the first time Friday about the case.
The Flowers were joined by neighbors Bindu Pothen and Kumaran Santhanam in their lawsuit against Vidyut Gopal and Parul Agrawal, claiming their next-door neighbor's son, now 11, over the years kicked and slapped children and repeatedly bit people.
Reached Friday night, both Gopal and Agrawal emphatically said they don't agree with their neighbors' claims, and declined to comment further on the pending litigation.
Advocates for families with autistic children and relatives, meanwhile, are calling the lawsuit an outrage, and fear that if the plaintiffs prevail it could lead to copycat actions against other families with autistic relatives.
Santhanam said Friday that the problem worsened over the years because the boy's parents or baby sitters often weren't around at the time of the attacks to prevent them.
"This has to do with the parents' responsibility to control their child," said Santhanam. After one incident, he recalled, Gopal told him, "He's autistic -- there is nothing you can do."
Santhanam said he and his wife, who have lived on the block since 1999, first met Gopal and Agrawal when they moved in next door with their son in 2007.
Not long after, they said, their neighbor's baby son was diagnosed with autism.
"It was very hard for them, and we tried to do everything we could to support them," recalled Santhanam. "They were clearly struggling."
He said neighbors were sensitive to the couple's situation and made sure to include the family in activities on the block.
When the boy's parents told Pothen that the boy shouldn't eat sweets, for example, she and others made sure that at Halloween and Easter, neighbors gave the boy other items as treats, including special eggs.
The couple said they told their two young children that the boy was different and had some problems, and to try to understand that. "We have an opportunity to be around diversity, so we embraced that," Pothen said. But the incidents continued, she said.
By August 2013, when the Flowers moved to a rental house on the court with their two young children, they told their children that the boy was "special, and we need to understand him," even after the boy slapped their young daughter.
But in October, when he said the boy attacked their young son on his fourth birthday -- pulling his hair, shaking his head back and forth, kicking him on his back repeatedly -- Robert Flowers reluctantly called the police, because he said he wanted a paper trail to be established in case the attacks continued.
"I didn't want to do it, because I knew I would look like the bad guy," said Flowers, who moved out of the rental house with his family last month.
"We're not upset about him being autistic," he clarified. "We are concerned and upset about his violence (toward) our children."
After yet one more attack in early 2014, Santhanam said, he and his wife asked Gopal and Agrawal to meet with them to talk about the problems and create a plan that would keep the children on the block safe. He said at one point, Gopal and Agrawal suggested their son could play outside on either the odd or even days of the week, and the other children could play on the opposite days.
But the boy's parents, Santhanam said, ultimately didn't commit to anything.
The two couples filed their lawsuit in June 2014, asking the court for a preliminary injunction against the family to ensure their son does not strike, assault or batter anyone in the neighborhood or their personal property. One month later, the judge agreed.
By last September, Gopal and Agrawal moved out of their Arlington Court home to a rental house in another part of Sunnyvale, where, they say, their son has had "absolutely no problems" with the neighbors. The couple told this newspaper that they don't plan to move back to their house.
The case returns to court Tuesday, when a judge will hear arguments about whether the plaintiffs should have access to the boy's school and medical records.
As difficult as it's been on Arlington Court, Pothen said, there were no more problems after the injunction was granted.
"Why did we need an injunction to make sure that they are following laws we all have to follow?" she said.
Neighbor Lawsuit Seeks to Declare Autistic Boy a “Public Nuisance”
Hearing on discovery motions set for September 22, 2015 9am, San Jose
Hearing on discovery motions set for September 22, 2015 9am, San Jose
Dear Bay Area autism families,
We wanted to let you know about an extraordinary, unprecedented lawsuit against a local family that could have profound implications for all of us affected by autism.
In June 2014, two Sunnyvale couples, whose homes on Arlington Court flanked a home occupied by a nine year-old autistic boy and his parents, sued the autism family in Santa Clara County Superior Court, alleging a smattering of incidents that had occurred sporadically over the span of about six years. The incidents sound much like those that happen with many autistic children, and include, for example, that the boy had entered a neighbor's garage, had taken a neighbor’s banana, had sought out neighbors' sweets, had kicked a car (no damage), had tossed some objects over a fence, had pulled a child’s hair and had on occasion kicked at people (no injuries), and had tossed a bicycle helmet. The boy was between 3 and 9 years of age, and weighed less than 60 pounds, at the time of these alleged actions.
To us, as autism parents, caregivers, and professionals, the alleged incidents seemed relatively unremarkable, a series of minor impulsive acts of a small boy with a significant neurodevelopmental disability, resulting in little, if any, measurable damage. Indeed, no actual damages to property or person are alleged in the Complaint. Moreover, the alleged acts were not so different from those often seen in rough-and-tumble neurotypical boys his age.
But in what some have characterized as a “witch hunt,” the neighbor Plaintiffs filed an aggressive lawsuit seeking draconian forms of relief against the autism family, including:
• An injunction against the boy as a “public nuisance.” Plaintiffs contend they are entitled to a permanent injunction against the boy and his parents for “abatement” of the nuisance. Based on papers filed in this case, this could include a court order that the autism family be legally prohibited from living in their home, or perhaps, that the boy not be allowed in public spaces outside the home.
• Monetary damages for loss of property value. The Plaintiffs’ Complaint alleges that neighborhood "concerns" about the boy "have created an as-yet unquantified chilling effect on the otherwise 'hot' local real estate market" and that "people feel constrained in the marketability of their homes as this issue remains unresolved and the nuisance remains unabated." For this alleged reduction in neighborhood-wide property values, Plaintiffs seek an unspecified sum of money as compensation.
• Damages and injunctive relief based on a litany of other claims, including abatement of private nuisance, negligence, trespass, battery, negligence—parental liability, statutory liability of parents for torts of a minor, and negligent infliction of emotional distress.
• Attorneys’ fees and costs. The Plaintiffs also seek attorney fees insofar as they are "seeking to vindicate an important right affecting the public interest."
At great expense and inconvenience, the autism family moved away from the home in September 2014 to escape what they saw as harassment by their neighbors. After an attempt at mediation, the Plaintiffs would not agree to settle the case or drop their lawsuit, even though the autism family no longer resided in the home, of which they retained ownership but rented out. The Plaintiffs have not alleged that any adverse incidents have occurred for much longer than a year now.
Just recently, to support their contention that the young boy’s autism behaviors constitute a “public nuisance” that must be “abated,” the Plaintiffs issued third-party subpoenas seeking his private disability-related information from a variety of sources including school district records, private therapy records, regional center files (from the San Andreas Regional Center, the agency charged with serving people with developmental disabilities in the county), and even records from a special-needs summer camp and a parent support group.
A hearing on Defendants’ motion to quash those highly invasive subpoenas is scheduled for September 22, 2015 at 9am. Details:
Case: Flowers v. Gopal, Santa Clara County Superior Court Case No. 114CV266515
Hearing: Motion to quash third-party subpoenas
Date: Tuesday, Sept 22, 2015
Time: 9:00am
Location: Department 8, Santa Clara County Superior Court, 191 North First Street, San Jose, CA 95113
Presiding Judge: Honorable Maureen A. Folan
[Please note it is unclear when these motion will come up on the court’s calendar, it may not be heard until well after 9:00am.]
While a court hearing is obviously not an appropriate place to voice community concerns, community members are free to attend if they would like to learn more about this matter or simply lend moral support for the Defendant autism family.
This legal battle is occurring against the background of dramatically increasing autism cases in our state and within Santa Clara County as well. Santa Clara County in 1990 counted just 147 Department of Developmental Services-eligible autistic individuals, but today has more than 3,200. California cases of more severe forms of autism (DDS-eligible) has soared more than 25-fold since the 1980s, and now surpass 80,000 individuals. Autism is now found in all our neighborhoods. But if discriminatory lawsuits like this—where community members can sue autism families for autism-related behaviors (particularly where the $25k jurisdictional threshold is clearly not met)—proliferate, the result could be profound:
• Autism families could be driven to homelessness and bankruptcy while they defend themselves against such suits.
• Almost any person with autism who displays aberrant behaviors (and that’s most of the DDS autism population) could be declared a “public nuisance” based on neighbor complaints, and barred from living in the community.
• Autism families would lose their rights to privacy, as any community member who feels aggrieved by autism behaviors could seek the disabled child’s most personal and private medical, therapy, school and disability records.
• It could empower a new breed of “private prosecutors” against the developmentally disabled. In this case, before filing their Complaint, the Plaintiff neighbors had asked the local police and Child Protective Services to intervene against the autism family. Those authorities declined to take action against them, as they found nothing warranting such action.
• Lawsuits like this could essentially nullify California’s nascent efforts to foster increased community-based, integrated housing for the developmentally disabled, including those with autism. Federal policy requires that individuals with developmental disabilities have full access to the community and that communities may not discriminate against them; the California Government Code mandates that municipalities plan for inclusive community housing for citizens with developmental disabilities; and the state’s Lanterman Act provides that individuals with developmental disabilities have a right to live in the community like any non-disabled person. Facile lawsuits such as this, if allowed to stand, could easily kill efforts to create more autism and disability housing in our communities.
• If permanent injunctive relief such as that sought by the Plaintiffs is awarded, it could turn autism families into criminals for minor behaviors of their children. Court-ordered mandates prohibiting a broad array of child behaviors means autism parents and caregivers would live in constant fear that “one false move” by their significantly disabled charges could turn them, literally, into criminals subject to contempt of court punishments, including imprisonment.
Finally, we would like to commend the autism family targeted by this lawsuit. They have handled this attack with incredible strength as well as a sense of responsibility to the entire autism community, knowing what is at stake.
Thank you for your attention. We will provide updates on our website and in our free newsletter (sfautismsociety.org/news). If you have any questions or concerns please email us at in...@sfautismsociety.org.
Yours,
Autism Society San Francisco Bay Area Executive Committee
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