D.H. by Mr. & Mrs. H. v. Ashford Bd. of Educ., 3:96CV01403 (DJS) (TPS).

• Citation: 1 F.Supp.2d 154
• Decision Date: 27 March 1998
• Docket Number: No. 3:96CV01403 (DJS) (TPS).,3:96CV01403 (DJS) (TPS).
• Court: U.S. District Court — District of Connecticut
• Parties: D.H. By and Through His Parents and Next Friends, MR. & MRS. H. v. ASHFORD BOARD OF EDUCATION.

Page 154

1 F.Supp.2d 154

D.H. By and Through His Parents and Next Friends, MR. & MRS. H. v. ASHFORD BOARD OF EDUCATION.

No. 3:96CV01403 (DJS) (TPS).

United States District Court, D. Connecticut.

March 27, 1998.

Joy K. Fausey, David C. Shaw, Richard T. Roznoy, Hartford, CT, for plaintiff.

William Connon, Mark J. Sommaruga, Sullivan, Schoen, Campane, & Connon, Hartford, CT, James G. Williams, Cella, McKeon & Williams, North Haven, CT, for defendant.

ORDER

SQUATRITO, District Judge.

Upon review and pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule 2 of the Local Rules for United States Magistrate Judges (D.Conn.), the magistrate's ruling [Document No. 41] is AFFIRMED, APPROVED and ADOPTED as the ruling of this court.

The clerk is DIRECTED to CLOSE this case.

RECOMMENDED RULING ON PENDING MOTIONS FOR SUMMARY JUDGMENT

SMITH, United States Magistrate Judge.

This is an action for attorney's fees and costs incurred in connection with administrative proceedings initiated by the plaintiff under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Now pending before the court are the parties' cross-motions for summary judgment, as well as the plaintiff's motion for additional fees and costs.

For the reasons stated below, the plaintiff's motions for summary judgment [doc. # 21] and for additional fees and costs [doc. # 33] should be GRANTED; the defendant's motion for summary judgment [doc. # 24] should be DENIED.

STANDARD OF REVIEW

In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.'" Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (citation omitted). "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992).

After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

FACTS

Based upon the submissions of the parties the court finds the following.

The plaintiff, D.H., was a 14 year-old student in the eighth grade at Ashford School in Ashford, Connecticut at the initiation of the instant action. The defendant, Ashford Board of Education, ("Board"), operates the Ashford School. D.H. has been identified by the Board as a child who has learning disabilities and attention deficit disorder without hyperactivity. He has been receiving special education under the IDEA since 1987 and has been the subject of Planning and Placement Team ("PPT") meetings in the Ashford, Connecticut school system at least since June 17, 1987, when the first PPT meeting was convened to address D.H.'s educational program and transition into first grade.

In the sixth grade, D.H.'s 1993 mid-term education evaluation indicated that his math was "very good," that in reading he was "doing excellent work," that he had a "B average" in spelling, an "A average" in language and was "very good" and "conscientious" in science and writing. However, in early 1994 D.H.'s classroom progress began to deteriorate. A PPT meeting summary dated March 25, 1994, indicates that D.H began experiencing some apprehension, fear and self-esteem issues in the classroom. At that point however, the school board still claimed that D.H. was making good progress. In the spring of 1994 D.H. began attending occupational therapy ("OT") sessions which were paid for by the Board and provided by Therapeutic Enterprises.

By the fall of 1994, D.H. had become reluctant to participate in the classroom and was experiencing particular difficulties in his math performance. He was also experiencing anger and frustration at home. In response to these developments, D.H.'s parents requested that their son no longer receive support in the Resource Room at school, feeling the recent negative developments in D.H.'s classroom experience was related to D.H.'s negative experiences while receiving academic support in the Resource Room.

Over the next year, D.H.'s parents became increasingly dissatisfied with their son's educational program. In a letter to Mr. Richard Butler, Superintendent of Ashford Schools, dated November 1, 1994, D.H.'s mother expressed her dissatisfaction with D.H.'s educational program. In that same letter, D.H.'s mother also detailed her distress in the fact that several PPT recommendations were not being implemented. Throughout early 1995, the parents continued to be in disagreement with the Board regarding their son's educational program. The parents disputed the Ashford School's recommendations and believed that other strategies for their child's progress should be implemented.

In late summer of 1995, D.H.'s parents met privately with Dr. Miriam Cherkes-Julkowski, a professional education consultant, psychologist and Professor of Psychology at the University of Connecticut, to seek advice and assistance regarding D.H.'s educational performance, as well as recommendations for modifications and adaptations to their son's educational program. Following this meeting with Dr. Cherkes-Julkowski, the Board agreed to pay for Dr. Cherkes-Julkowski to perform a Diagnostic Cognitive Processing Evaluation and Academic Achievement Evaluation. The Board also agreed to pay for a subsequent educational evaluation by Dr. Judy Itzkowitz. Dr. Itzkowitz was hired to detail a summary assessment of D.H.'s needs, with recommendations for specific strategies to be applied as modifications and adaptations to his current education program.

By the fall of 1995, D.H. was in the eighth grade, in his final year at the Ashford School prior to transfer to the E.O. Smith High School, the regional school serving Ashford. The parents continued to express their dissatisfaction with the Board's educational plan. On September 11, 1995, the parents notified the Board that they were still not in agreement with the IEP identified for D.H. and that they expected the recommendations of the independent consultants to be implemented upon receipt.

Dr. Cherkes-Julkowski's study, sent to the Board on September 27, 1995, identified numerous modifications and adaptations to D.H.'s educational program for immediate implementation. Subsequent PPT meetings did not address whether the recommendations of the outside consultant would be implemented. Dr. Cherkes-Julkowski then followed her report with a letter to the Director of Pupil Personnel for the Ashford Schools dated November 22, 1995, specifically indicating the program adaptations that she recommended the Board immediately implement for D.H.

Additional PPTs were scheduled in early 1996. Although the report from Dr. Cherkes-Julkowski was reviewed at these sessions, the Board had not yet implemented the program modifications and adaptations identified by Dr. Cherkes-Julkowski in the prior year. Additionally, Dr. Itzkowitz presented her report on March 15, 1996. Dr. Itzkowitz's report noted that the recommendations of Dr. Cherkes-Julkowski had not been implemented and also contained recommendations for D.H.'s educational program. The Board did not implement Dr. Itzkowitz's recommended changes either.

On April 3, 1996, D.H.'s father wrote a letter to the Director of Pupil Personnel noting the Board's failure to provide support and modifications for D.H. in the regular classroom and its sporadic and delayed implementation of past recommendations. On April 18, 1996, D.H.'s father wrote to the Board explaining that its failure to implement a proper IEP for his son was unacceptable to him and his wife. That same day, the parents wrote to the Connecticut Department of Education requesting a due process hearing under the IDEA. In their request, the parents challenged the Board's failure to provide reasonable supplementary aids and services to support D.H.'s regular classroom placement (including an acceptable independent consultant) as well as its failure to modify the curriculum as necessary to enable D.H. to receive the free and appropriate public education ("FAPE") to which he is entitled. Upon receipt of the letter request, the State appointed a hearing officer, compiled a record for the hearing, notified the parties as to the procedures and made the record available to all parties prior to the hearing.

The State scheduled a pre-hearing conference for May 10, 1996, and a hearing for June 6, 1996. During the pendency of the hearing process the parents, their advocates and the Board discussed D.H.'s education plan. As result of these discussions, the Board stipulated to a resolution of the matter at the pre-hearing conference on May 10, 1996. However, the plaintiff's did not accede to the stipulation at the pre-hearing conference due to their conviction that an order of the hearing officer was necessary to enforce the proposed resolution.

On June 6, 1996, the...