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Autistic Boy’s Case a Question of Justice

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TIMES STAFF WRITER

Within the Bay Area’s tight-knit community of parents with autistic children, Marguerite Garretty has been revered as an inspiration, even a hero.

Garretty, who has been her autistic grandson’s legal guardian since he was 6, is a passionate advocate of “mainstreaming”--involving the disabled in the world as much as possible. She dreamed that one day her grandson, who also suffers from mental retardation and seizures, would be able to fend for himself.

Under her care, the boy learned to read and write, to communicate with others and to ride a bicycle. For many, Garretty, her husband, Keith, and their grandson were proof that a loving family environment could help even the most severely handicapped child develop beyond expectations.

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Then, on a warm night in June, Garretty’s 12-year-old grandson allegedly beat a toddler she was baby-sitting so severely that the child died the next day of massive brain injuries.

Neither the Garrettys nor the parents of 18-month-old Alexsis Henckolas, who also was suspected of being autistic, have spoken publicly since the attack. But friends say the two families, who met when a parent support group referred the Henckolases to the Garrettys for assistance, still talk frequently.

In the wake of the killing, a tug of war erupted among law enforcement officials, frightened neighbors and advocates who feared that what had happened would spark a backlash against all autistic children and efforts to help lead them to normal lives.

Neighbors said they feared the boy and wanted him removed from their comfortable tract near San Jose. An assistant district attorney quickly decided not to prosecute, but considered committing the boy to a mental institution.

After months of painful debate and legal maneuvering, a unique, court-brokered solution emerged, one that no one can say with certainty will achieve the twin goals of protecting the boy and the community.

If the agreement is ratified, as expected, in a Santa Clara court this month, the state will allow Keith, a systems analyst, and Marguerite, a retired executive secretary, to continue raising their grandson even as he is declared a danger to himself and others and made a ward of the state.

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In return, they will abandon their dream of an ordinary life for him. His movements will be severely limited and closely monitored indefinitely. His behavior will be reviewed by the court and should he again behave violently, the state can commit him to an institution.

“My focus was to try to take care of any risk to the community, while at the same time not doing any further damage to the boy,” said Kurt Kumli, the Santa Clara County assistant district attorney who handled the case.

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Neighbors say they think the solution can work. The Garrettys are described as resigned, while advocates for autistic children say they are pleased the boy will remain at home but worry that the severe restrictions may erode the progress he made.

Most important, perhaps, the arrangement leaves unfinished the debate triggered by the killing: Is what benefits developmentally disabled children necessarily good for their communities?

Police responding to Marguerite Garretty’s 911 call said they found her sitting on the staircase inside her house, sobbing as she cradled Alexsis. She told them she had left the boys in an upstairs room for half an hour while she went to the grocery store. Her husband had been puttering downstairs.

When she returned, Garretty reportedly said, her grandson told her “Alexsis is hurt.” She ran upstairs to find the baby wasn’t breathing. Drops of blood stained the walls and floor.

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That night, in a nearby intensive care ward, homicide Det. Ron Icely spoke to a sobbing Yvette Henckolas as she decided whether to allow doctors to disconnect her son from life-support machines.

The distraught mother, Icely said, did not blame the Garrettys for her son’s beating. “She said she felt it was a tragedy for them too,” Icely recalled.

Alexsis died the next day.

The debate over what to do began.

The police took the Garrettys’ grandson to a local hospital, where he was put under psychiatric care. The couple argued passionately that placing him there would severely traumatize him. They soon were joined by advocates in the autistic community who urged Kumli to free him.

“We were very concerned about it, not only for the family but for the impact on other autistic children in the Bay Area,” said Anne Struthers, a board member of the East Bay region’s Autistic Society of America, a nonprofit educational and support group.

Autism is a neurological disorder believed to affect about 15 of every 10,000 Americans, four times as many boys as girls. No one knows the cause or cure for autism. Some sufferers are severely afflicted, withdrawn and living in their own world, unable to communicate. Others show only mild symptoms.

In severe cases, the Autism Society of America says, “the syndrome may include extreme self-injurious, repetitive, highly unusual and aggressive behavior.”

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But experts agree that those afflicted rarely, if ever, assault others. Reports are so rare that many advocates refused to believe the Garretty grandson attacked Alexsis.

Kumli has no doubt the boy killed the baby but agrees he did not understand what he was doing and did not intend to kill. That is why, Kumli says, he decided not to prosecute.

But the question remained: What to do?

“My feeling was, the status quo in the Garrettys’ home was totally unacceptable,” Kumli said. No matter what experts say about autistic children in general, he said, this boy had attacked a toddler and the toddler was dead. He was determined to see that it not happen again.

Like many autistic children, the Garrettys’ grandson has other medical problems. His primary one, his doctors say, is tuberous sclerosis, a genetic condition that produces growths in the brain and other organs that sometimes become malignant; it often is associated with mental retardation and seizures. The boy has the mental abilities of a 4- or 5-year-old.

But news reports about Alexsis’ death focused on the autism, which set off alarms in the support community and among some health care professionals.

“When I first read of the case in the newspapers, I was extremely concerned,” said Kyra Kazantzis, head of the Mental Health Advocacy Project, a legal aid project sponsored by the Santa Clara Bar Assn. She quickly signed on as one of two attorneys representing the grandson.

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“There were a lot of sentences in the newspaper accounts with ‘violence’ and ‘autism’ within a few words of each other,” she said. “I feared there might be a perception that autistic kids are violent, that this might raise concerns for anyone with kids going to a school with autistic children.”

Those fears were heightened by the reaction of some of the Garrettys’ neighbors. Although there was sympathy, more than 40 families on their street and one next to it signed a petition urging authorities to remove the grandson from the home.

Some called the Milpitas police to complain that Marguerite Garretty had not supervised the boy closely enough. They detailed instances when he struck neighborhood children, when he was allowed to wander the neighborhood unsupervised, when he had gotten lost and the police were called to search for him.

“We have endured in this neighborhood this little boy whose grandparents feel he should be mainstreamed,” said Joanne Olzewski, who lives down the block. Out of respect for the family, Olzewski said, neighbors who had experienced problems kept quiet. Now they believed that was a mistake.

A group of them met with police and the district attorney to vent their fears and frustrations. “We were told about a boy who in the last couple of years had become combative, aggressive,” said Det. Icely. “People told us that their children had been assaulted.”

At the same time, Icely said, he was fielding equally outraged phone calls from Garretty supporters, people who said the police should leave them alone and allow them to get back to rearing their grandson.

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Struggling for a way to meet the needs of both, Kumli initially decided to ask that the boy be made a ward of the state. In his eight years of dealing with juvenile law in Santa Clara County, Kumli said, it was the first time he had filed such a petition instead of pressing criminal charges.

To make a child a ward of the type Kumli sought, the court must find the child is both mentally retarded and a danger to himself or herself and others. Once those determinations are made, the court can commit the child to a mental institution for life.

When Kumli’s decision hit the newspapers, he was deluged with calls from across the nation, most of them outraged, anguished parents of autistic children.

How could he take the boy away from a loving home environment? How could he incarcerate him in a mental institution? Didn’t he realize the damage that would be done to the boy?

“I told them that I wanted to do what was best for the boy,” Kumli said. “But a baby was dead, and I was not going to walk away from that.”

Meanwhile, the Garrettys worried about their grandson regressing. They pressured Kumli to let him come home.

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In early July, a Santa Clara County Superior Court judge agreed that the boy was better off at home. When neighbors learned of the decision, the petition demanding his removal was circulated. To placate them, the boy temporarily was placed under what both his attorneys and Kumli described as virtual house arrest.

A state-paid psychiatric technician was assigned to the home around the clock. No children were allowed to visit and the boy was not allowed to leave the property, except for medical or court appointments.

For the Garrettys, it was tantamount to living under siege. Marguerite, a wiry woman with salt-and-pepper hair, suspended her volunteer activities to stay home with her grandson.

“It was like being put in a fortress,” said their attorney, Wesley Schroeder. “They felt that they were under constant surveillance by some of their neighbors.”

Faced with compelling evidence in the coroner’s report that the boy had indeed killed, and the neighbors’ willingness to testify about his past aggression, attorneys for the Garrettys and the grandson agreed in August to accept the finding that he was a danger. They agreed he should become a ward of the state--if he would be allowed to stay at home.

The compromise may have seemed a surrender of sorts to many in the autistic community, Schroeder said, but there were few options.

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“We were forced to respond to a cold, hard reality: the death of a defenseless baby,” Schroeder said. “I didn’t think there was any judge who was going to say: Someone has been killed, but this boy is not dangerous.”

Relinquishing control over their grandson was painful for the Garrettys, he said, but it would be more painful to contemplate seeing him in a mental institution.

“They love him,” Schroeder said. “They made the very deliberate choice not to walk away when his mother died.”

The Garrettys’ daughter adopted the boy when he was a day old. When he was 6, she died of complications related to lupus; soon after, the grandparents became his legal guardians.

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Under the plan, the Garrettys will hire an assistant to help supervise the boy whenever he is not asleep or in school. They will maintain a motion-detection alarm in their house and along their backyard fence to keep him from wandering off. Keith Garretty, a gun collector, will give up his weapons and agree to keep firearms and explosives out of the house.

The Garrettys also will keep their grandson from playing with any child younger than 8 and provide supervision when he is playing with older children. Each time he plays outside the home, an adult must stay within 15 feet.

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The boy also will be required to enroll in a school for the developmentally disabled as well as family counseling and therapy sessions.

Every month, the court will receive reports from social workers on how well the Garrettys are abiding by the agreement. In a year, the situation will be reviewed. Theoretically, the arrangement could continue as long as the Garrettys are alive.

“The days of this boy riding his bike alone through the neighborhood are over,” Kumli said.

Once the court finalizes the arrangement, attorney Kazantzis said, she hopes to arrange a community meeting “and try to do some healing.”

“I don’t have children of my own, so I can’t pretend to understand how the neighbors have reacted,” she said. “I would hopefully say that the people who are reacting so intensely are missing some key information about who Marguerite is, about who Keith is. This is this child’s community, and he needs to feel safe there and needs to feel accepted.”

For their part, Olzewski and some other neighbors who wanted the boy removed said they are satisfied with the compromise and will monitor it.

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“I don’t think the neighborhood will ever completely get over what has happened,” she said.

Marguerite Garretty continues to receive support from the autistic community, Schroeder said. She remains close friends with Andre and Yvette Henckolas, the parents of Alexsis.

At the toddler’s memorial service, Andre Henckolas spoke of the love his family feels for the Garrettys, who were among the mourners.

People close to both say the families believe the case has been sensationalized and do not wish to contribute to anything that could further harm the children they are so committed to helping.

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