In re Doe Children, 24697.

CourtSupreme Court of Hawai'i
Writing for the CourtMOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.
Citation93 P.3d 1145,105 Haw. 38
PartiesIn the Interest of DOE CHILDREN: John, Born on January 27, 1987, and Jane, Born on July 31, 1988, minors.
Docket NumberNo. 24697.,24697.
Decision Date16 June 2004

93 P.3d 1145
105 Haw.

In the Interest of DOE CHILDREN:
John, Born on January 27, 1987, and Jane, Born on July 31, 1988, minors

No. 24697.

Supreme Court of Hawaii.

June 16, 2004.

Reconsideration Denied July 27, 2004.

93 P.3d 1147
Jay K. Goss, Deputy Attorney General (DAG) and Mary Anne Magnier, DAG, for the appellant Department of Education, State of Hawai'i

Kimberly S. Towler, Appellee-Guardian Ad Litem.


Opinion of the Court by LEVINSON, J.

The appellant Department of Education (DOE) appeals from the following orders of the family court of the first circuit, the Honorable John C. Bryant, Jr. presiding: (1) the September 10, 2001 minute order, ordering the Department of Education (DOE) to place John Doe (John) in the eighth grade; and (2) the October 16, 2001 orders concerning the Child Protective Act, denying the motion of the DOE and the Department of Human Services (DHS), filed on October 1, 2001, for reconsideration of the September 10, 2001 minute order.1

The DOE asserts the following on appeal: (1) that the family court erred in finding that it had the authority to enter orders that violated the Individuals with Disabilities Education Act (IDEA), 20 United States Code (U.S.C.) §§ 1400-1487 (2001)2 and the Felix consent decree;3 (2) that the family court

93 P.3d 1148
erred in finding that it had subject matter jurisdiction to decide the educational placements of children; (3) that, assuming arguendo that the family court did have jurisdiction to review the decisions of the DOE regarding grade placement of children, the family court erred in reviewing John's grade placement in accordance with the "best interest of the child standard," as opposed to the "contrary to law" or "abuse of discretion" standard; and (4) that the issues raised in the present matter are not moot simply because the DOE followed the family court's order and placed John in the eighth grade, inasmuch as (a) the family court could order that John remain in the eighth grade indefinitely and (b) the issue of the family court's subject matter jurisdiction is capable of repetition but, if moot, would evade appellate review

John's Guardian Ad Litem (GAL) responds as follows: (1) that the family court is authorized by Hawaii Revised Statutes (HRS) chapters 5714 and 5875 to order the DOE to

93 P.3d 1149
place John in the eighth grade, because, among other things, in the GAL's view, the statutory scheme expressly confers that authority; (2) that administrative review was unavailable and the individualized education program (IEP)6 process was stalemated, effectively denying John his right to due process of law, augmenting the need for the family court to address the problem; and (3) that once the DOE decided not to move John from the eighth to the ninth grade, the conflict became moot

93 P.3d 1150
For the reasons discussed infra in section III, we hold: (1) that GALs do not have standing to pursue an IDEA claim and cannot avail themselves of the "futility exception" to the requirement of administrative exhaustion; (2) that the district family courts may not exercise judicial review of administrative proceedings conducted pursuant to the IDEA; and (3) that the district family courts lack subject matter jurisdiction, under any circumstances, to order the DOE to alter a child's grade placement. Accordingly, we reverse the family court's September 10, 2001 and October 16, 2001 orders.


A. Statutory and Regulatory Background of the IDEA

Pursuant to HRS § 302A-1102 (Supp.2003),7 the DOE is responsible for the administration of the IDEA pursuant to a federal-state statutory and regulatory regime. For present purposes, inasmuch as this court previously discussed the statutory and regulatory background underlying the IDEA in In re Doe Children: Jane, Born on September 2, 1983; and John, Born on May 12, 1983, 96 Hawai'i 272, 30 P.3d 878 (2001) [hereinafter, "In re Doe Children"], we reiterate the following:

The IDEA has a complex statutory and regulatory framework, the basic purpose of which is to ensure that states provide an appropriate education to children with disabilities. The IDEA was originally enacted in 1970 as the Education of the Handicapped Act, Pub.L. No. 91-230, §§ 601, 611, 84 Stat. 175, 178 (1970), substantially revised in 1975, see Pub.L. No. 94-142, 89 Stat. 773-96 (1975), and given its present name in 1990. Pub.L. No. 101-476, § 901(a), 104 Stat. 1141, 1142 (1990). As a condition of receiving federal funds for the special educational needs of disabled children, states are required to maintain policies and procedures that ensure all disabled children receive a free appropriate public education (FAPE). See 20 U.S.C. § 1412(a)(1); see also Honig v. Doe, 484 U.S. 305, 310 [108 S.Ct. 592, 98 L.Ed.2d 686] ... (1988). A FAPE is defined as
special education and related services that —
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with [an] individualized education program [defined in 20 U.S.C. § 1414(d)].
20 U.S.C. § 1401(8).... "Special education" refers to
specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including —
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.
20 U.S.C. § 1401(25).... "Related services" means
transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment
93 P.3d 1151
of disabling conditions in children.
20 U.S.C. § 1401(22).... Thus, as a condition of receiving federal funds, the State of Hawai'i is required to provide not only special education, but also related services, such as the psychological or mental health services at issue here, as part of the FAPE to which children with disabilities are entitled.
The primary state agency in Hawai'i responsible for ensuring that disabled children receive a FAPE is DOE. See 20 U.S.C. § 1412(a)(11); [[8] HRS § 26-12 (Supp.2000) (DOE responsible for administration of education and public instruction)....
... According to the IDEA, states must provide for the opportunity to evaluate complaints regarding the provision of a FAPE, see 20 U.S.C. §§ 1415(a) and 1415(b)(6),[9] and the opportunity must include the possibility of conducting an "impartial due process hearing" provided for according to state law or regulations. See 20 U.S.C. § 1415(f)(1).10
Parents have the right to seek judicial review of any final administrative decision by bringing a civil action "in any State court of competent jurisdiction or in a district court of the United States[.]" 20 U.S.C. § 1415(i)(2)(A).[11] Therefore, federal law requires states to provide a process that allows parents, who feel compelled to place their children in a private school because of the state's failure to meet its obligation to provide a FAPE, to seek reimbursement for the cost of doing so....

Id. at 276-78, 30 P.3d at 882-84 (emphases omitted).

In re Doe Children also noted as follows:

Hawai'i has established the required review process for complaints related to FAPE through a statutory and regulatory scheme. HRS § 302A-443(a) (Supp.2000) provides in part that:
An impartial hearing may be requested by any parent or guardian of a handicapped child, or by [DOE], on any
93 P.3d 1152
matter relating to the identification, evaluation, program, or placement of a handicapped child. [DOE] shall adopt rules that conform to the requirements of any applicable federal statutes or regulations pertaining to the impartial hearing based on the education of a handicapped child.
Pursuant to the statute, Title 8 of the Hawaii Administrative Rules (HAR) allows for a hearing to assess complaints regarding the provision of a FAPE.

Id. at 287, 30 P.3d at 893 (emphases added). More specifically, HAR § 8-56-72(a) provides that "[a] parent or the [DOE] may initiate a hearing on any of the matters described in section 8-56-68(a)[12] (relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the student)." (Emphasis added.) HAR § 8-56-2 defines the term "parent" as follows:

(1) A natural or adoptive parent of a student;
(2) A guardian but not the State if the student is a ward of the State;
(3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the student lives, or a person who is legally responsible for the student's welfare); or
(4) A surrogate parent who has been appointed in accordance with section 8-56-80.
(5) A foster parent may act as a parent under this chapter if the natural parents' authority to make educational decisions on the student's behalf has been extinguished under state law 8-56-2 and it is not otherwise contrary to the relevant court order; and the foster parent:
(A) Has a long-term parental relationship with the student;
(B) Is willing to make the educational decisions required of parents under this chapter; and
(C) Has no interest that would conflict with the interests of the student. [[[13]

(Emphasis added.) HAR § 8-56-80 requires that the DOE ...

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