11 News Investigates: Student's Hand Duct Taped to Wheelchair

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A Southern Colorado teacher is being investigated, because she used duct tape to restrain a student's arm to his wheelchair. The incident is being investigated by the Legal Center for People with Disabilities, because they believe the act, considered "mechanical" restraint, is against state law.

The teacher's supervisor says it never should have happened. But the district attorney in Alamosa says he doesn't think the teacher committed a crime. In fact, District Attorney David Mahonee tells 11 News that the teacher deserves a medal for her work with students who have severe disabilities.

Anthony Birden is 12 years old, but his brain will never develop past the age of 13 months. "He's just a lovable little guy," says his grandmother and legal guardian, Angie Lain Navares.

Anthony is a victim of shaken baby syndrome. He was shaken so hard by a baby-sitter when he was three months old, that he became severely brain damaged. "He's a little tiny baby in a big boy's body," says Navares.

Anthony can't walk, he can't talk, and he can only control his right hand. "That's the way he communicates," says Navares. "That's the way he talks."

Anthony is cared for by his grandmother, who says she still can't believe what happened on Friday, April 16th. Anthony was dropped off from Ortega Middle School, his right-hand duct taped to his wheelchair.

"I was appalled," says Navares. "I was like, how could they do that to a little boy who only has one extremity that's workable? And I was hurt, and I didn't know what to do."

Navares called the teacher's supervisor, and filed a police report.

"This shouldn't have happened," says Stephen Bohrer, the executive director of the San Luis Board of Cooperative Educational Services, or BOCES. It's the agency that trains and places special education teachers throughout the San Luis Valley. "We have policies in place, we have handbooks in place that would forbid it," says Bohrer.

Leslie Garcia was the teacher in charge that day. She e-mailed her boss that evening, saying she used the duct tape only after she spent 30 minutes trying to keep Anthony from gagging himself. But that gagging, Anthony's grandmother says, is what he does all the time. It's his only way to communicate.

Garcia's e-mail goes on to say, "I quickly grabed (sic) some tape and wrapped it around his long sleeved shirt and the arm of his chair. Anthony became very calm and didn't object to the imobilazation (sic) of his arm in any way."

District Attorney David Mahonee says he looked into it. "The children were getting ready to go home, five total," says Mahonee. "And she couldn't just stand there with this one child, and so she did what she did, and it was unfortunate."

Unfortunate, and according to the Department of Education, unlawful. Colorado's "Protection of Persons from Restraint Act" prohibits mechanical restraint. Still, Mahonee decided not to file charges.

"I made the decision I didn't think it amounted to criminal behavior," says Mahonee. "It was a mistake, maybe. But not everything people do is a crime."

Garcia's attorney only spoke with 11 News briefly on the phone, and said that this incident was unique. He says Leslie Garcia feels a lot of warmth toward Anthony.

Garcia apologized in an e-mail addressed to her boss, in which she says she was only trying to keep Anthony safe. Anthony's grandmother says that's not good enough. "How could you do that to somebody who can't even talk to you? Who can't even tell you, don't do that?" said Navares. "He breathes the same air we breathe. His little heart beats the same as ours."

Anthony's grandmother has since taken him out of school, and Garcia is on paid leave while her supervisors decide if she'll keep her job.

The Legal Center for People with Disabilities says once its investigation wraps up, they will submit a report and recommendations to the school, and do follow-up with them.