County of San Diego v. California Special Educ. Hearing Office, 94-55557

• Decision Date: 30 August 1996
• Docket Number: No. 94-55557,94-55557
• Citation: 93 F.3d 1458
• Parties: 96 Cal. Daily Op. Serv. 6482 COUNTY OF SAN DIEGO, Plaintiff-Appellant, v. CALIFORNIA SPECIAL EDUCATION HEARING OFFICE; Grossmont Union High School District, Defendants-Appellees, Rosalind Fox, Counter-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1458

93 F.3d 1458

96 Cal. Daily Op. Serv. 6482

COUNTY OF SAN DIEGO, Plaintiff-Appellant, v. CALIFORNIA SPECIAL EDUCATION HEARING OFFICE; Grossmont Union High School District, Defendants-Appellees Rosalind Fox, Counter-Defendant-Appellee.

No. 94-55557.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 20, 1995.

Decided Aug. 30, 1996.

Ian Fan, Deputy County Counsel, San Diego, California, for plaintiff-appellant.

Barry A. Zolotar, California State Department of Education, Sacramento, California, for defendant-appellee, California Special Education Hearing Office.

Sharon Seay, Littler, Mendelson, Fastiff, Tichy & Mathiason, San Diego, California, for defendant-appellee Grossmont Union High School.

Charles Wolfinger, San Diego, California, for counter-defendant-appellee Rosalind Fox.

Appeal from the United States District Court for the Southern District of California, No. CV-92-00424-MLH.

Before POOLE and O'SCANNLAIN, Circuit Judges; MARSH, ^* District Judge.

O'SCANNLAIN, Circuit Judge:

We must decide whether, under the Individuals with Disabilities Education Act, a California county is entitled to challenge both the state's classification of a minor as seriously emotionally disturbed and its finding ordering residential treatment for which the county is financially responsible.

I

Enacted by Congress in 1975 as the Education of the Handicapped Act, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, was renamed in 1990. Its primary objective is "to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C. § 1400(c). To accomplish this goal, the statute "provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir.1993).

Among the substantive procedures is the development of an individualized education program ("IEP") for each child with a disability. 20 U.S.C. § 1401(a)(18)(D). Crafted annually by the child's teacher, her parents, a representative of the school district, and, where appropriate, the child, the IEP ensures that the child's education is tailored to her individual needs. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1400 n. 2 (9th Cir.1994).

California state law also has a regulatory scheme for special education with the express intent of assuring that all individuals with exceptional needs receive their rights to appropriate programs and services under the IDEA. Cal. Educ.Code § 56000. An "individual with exceptional needs" is defined as a person who meets the age requirements, has been identified by an IEP team as "handicapped," whose impairment requires instruction or services which cannot be provided with modification of the regular school program and who meets eligibility criteria set forth by regulation. Cal. Educ.Code § 56026.

The state eligibility criteria are set forth at 5 Cal.Code of Regulations ("CCR") Article 3.1. By regulation, the IEP team decides whether the degree of a child's impairment qualifies that child for special education. 5 CCR § 33030. Two types of impairments relevant to this case are seriously emotionally disturbed ("SED"), 5 CCR § 3030(i), and specific learning disabilities, 5 CCR § 3030(j).

When a child has been determined to be SED, and residential treatment is recommended, a representative of the County's mental health department is added to the IEP team. Cal. Gov't Code § 7572.5(a). The IEP team is then required to determine whether "[t]he child's needs can reasonably be met through any combination of nonresidential services, preventing the need for out-of-home care," or whether "[r]esidential care is necessary for the child to benefit from educational services." Cal. Gov't Code §§ 7572.5(b)(1)-(2). To measure whether a child benefits from the current educational services she receives, the IEP team determines whether there is progress toward the central goals and objectives of the IEP. Taylor v. Honig, 910 F.2d 627, 629 (9th Cir.1990). If residential care is selected, the child or her parents are not liable for the cost of such placement. Cal. Welf. & Inst.Code § 18350(d). Instead, the County's welfare department is responsible for the costs of treatment following residential placement. Id. § 18351(a). Thus, the County's interest is two-fold: to provide mental health services to children found to be SED and to pay for residential treatment when necessary.

The IDEA also contains numerous procedural safeguards. Parents or guardians of a disabled child must be notified of any proposed change in the identification, evaluation, or educational placement of the child. 20 U.S.C. § 1415(b)(1)(C). Parents must also be provided an opportunity to present a complaint "with respect to any matter" relating to the proposed change. 20 U.S.C. § 1415(b)(1)(E). Upon the presentation of such a complaint, the parent or guardian is entitled to an impartial due process administrative hearing. 20 U.S.C. § 1415(b)(2).

Any party aggrieved by the findings and a final decision has the right to bring a civil action in state or federal court. 20 U.S.C. § 1415(e)(2). "[T]he civil action [ ] may concern 'any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education of such child.' " Board of Education v. Rowley, 458 U.S. 176, 204-05, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982) (quoting 20 U.S.C. § 1415(b)(1)(E)). The court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).

With this background on the application of IDEA to SED children, we now turn to the resolution of the dispute before us.

II

During the relevant circumstances of this action, Rosalind Fox was a troubled student with a long history of educational and emotional problems. In 1988-89 and 1989-90, Rosalind attended Emerald Junior High School in Cajon Valley Union Elementary School District. In January 1990, at the beginning of the second semester of Rosalind's eighth grade year, her mother, Paula Tanner, hospitalized Rosalind in the psychiatric unit of Mesa Vista Hospital for violent outbursts related to preparing a school science report. Rosalind's frustration with the assignment led her physically to abuse her mother and to break windows in the family's home. The hospital's diagnosis, prepared by psychiatrist Dr. Allan H. Rabin, was intermittent explosive disorder and dysthymia. ¹

Shortly after her release from Mesa Vista, where she spent part of her time in a day treatment program, Rosalind was found learning handicapped--and, thus, eligible for special education--by the Cajon Valley Union Elementary School District. During the remainder of her eighth grade year at Emerald, Rosalind was assigned little or no homework because it was regarded as too stressful for her. In June 1990, San Diego County Mental Health found Rosalind eligible for AB 3632 services ² and began providing her with outpatient psychotherapy.

During the summer of 1990, Rosalind transferred to Valhalla High School in Grossmont Union High School District, where she attended a special day class. In July, she was classified as SED on the basis of an inability to learn which cannot be explained by intellectual, sensory or health factors, and inappropriate types of behaviors or feelings under normal circumstances. School records dated October 1990, indicate that while Rosalind made some progress in outpatient therapy, she sought to avoid the therapy sessions. In January 1991, she took her mother's fiance's company car on a joyride. The following month she stole her mother's ATM card and spent $700. By March, she was on a behavior contract at school.

In April 1991, San Diego County Mental Health recommended a day treatment placement for Rosalind but none was immediately available. The IEP team then changed Rosalind's placement temporarily to Homestead, an isolated campus for SED students. The AB 3632 documents from this period include a treatment plan identifying Rosalind's problems as anger, low self-esteem, academic performance anxiety, and low frustration level for academic work. Treatment goals included decreased inappropriate behavior such as lying, stealing, and truancy; improved self-concept and social self-esteem; and increased ability to handle academic work. Rosalind was truant two or three times during her three-month stay at Homestead.

In June 1991, the IEP team changed Rosalind's placement to Frontier ADT Center ("Frontier"), an adolescent day treatment facility located on the same campus as Homestead. Rosalind began attending Frontier in July. Her day there consisted of academic classes during the morning and various modes of therapy during the afternoon. Rosalind's conduct during classes was generally satisfactory, but she refused to participate actively in therapy. She was truant several times while attending Frontier and, on three occasions, had to be taken to the school bus against her will by her parents.

In early August, Rosalind was arrested with a friend from Valhalla High School for shoplifting ten items from a Target store. Despite having been arrested with the merchandise, Rosalind insisted on her innocence, although she eventually acknowledged responsibility to a therapist at Frontier. The therapist assigned Rosalind the task of writing an essay related to her shoplifting. At home during this period, Rosalind threw tantrums over therapy assignments. She broke windows, threw objects around the house, pushed and tripped...