J.B. v. Killingly Bd. of Educ., 3:97 CV 1900(GLG).

• Decision Date: 19 December 1997
• Docket Number: No. 3:97 CV 1900(GLG).,3:97 CV 1900(GLG).
• Court: U.S. District Court — District of Connecticut
• Parties: J.B., Plaintiff, v. KILLINGLY BOARD OF EDUCATION, David Cressy, Superintendent of the Killingly Board of Education, Connecticut Department of Mental Health, Dr. Albert Solnit, Commissioner of the Connecticut Department of Mental Health, Connecticut Department of Children and Families, Christine Ragaglia, Commissioner of the Connecticut Department of Children and Families, Defendants.

990 F.Supp. 57

J.B., Plaintiff, v. KILLINGLY BOARD OF EDUCATION, David Cressy, Superintendent of the Killingly Board of Education, Connecticut Department of Mental Health, Dr. Albert Solnit, Commissioner of the Connecticut Department of Mental Health, Connecticut Department of Children and Families, Christine Ragaglia, Commissioner of the Connecticut Department of Children and Families, Defendants.

No. 3:97 CV 1900(GLG).

United States District Court, D. Connecticut.

December 19, 1997.

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Anne Louise Blanchard, Douglas M. Crockett, Connecticut Legal Services, Inc., Willimantic, CT, for J.B.

Lawrence J. Campane, Mark J. Sommaruga, Sullivan, Schoen, Campane & Connon, LLC, Hartford, CT, for Killingly Bd. of Educ., David Cressy, Superintendent of the Killingly Bd. of Educ.

Patricia A. Gerner, Atty. General's Office., Dept. of Health & Human Services, Hartford, CT, for Connecticut Dept. of Mental Health and Addiction Services, Albert Solnit, Commissioner of the Connecticut Dept. of Mental Health.

Susan T. Pearlman, Atty. General's Office, Dept. of Children & Families, Hartford, CT, for Connecticut Dept. of Children and Families, Christine Ragaglia, Commissioner of the Connecticut Dept. of Children and Families.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GOETTEL, District Judge.

Plaintiff, J.B., moves for a preliminary injunction to enjoin defendants, Killingly Board of Education ("Killingly"), Connecticut Department of Mental Health and Addiction Services ("DMH"), and Connecticut Department of Children and Families ("DCF"), from denying J.B. a free appropriate public education, as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487 (amended June 4, 1997), with accompanying regulations, 34 C.F.R. pt. 300 (1997). In his motion for a preliminary injunction, plaintiff urges this Court to order defendants to provide him with an appropriate community-based residential special education placement, other than his current institutional placement, during the pendency of this litigation.¹ Plaintiff further requests that his residential program should include treatment for his disability-related needs, including vocational training and instruction on socialization, daily living skills, community living skills, and appropriate sexual behavior.

After considering testimony given during a one-day evidentiary hearing, the various written submissions, and the final decision of a state administrative hearing taken after several days of testimony, this Court renders the following findings of fact and conclusions of law on plaintiff's motion for a preliminary injunction.

FACTUAL BACKGROUND

J.B. is twenty years old and has been identified as needing special education since he was eight. Within the past twelve years, J.B. has been identified as language and learning disabled. After being charged with fourth degree sexual assault of several young boys in early 1991, J.B. was identified as a sex offender due to the pedophiliac nature of the offense. A July 3, 1991 psychiatric evaluation diagnosed J.B. with "conduct, disorder, socialized, aggressive" and "mixed specific developmental disorder." In 1993, J.B. was diagnosed with attention deficit disorder and multiple personality disorder (also known as dissociative identity disorder). The multiple personality disorder diagnosis was subsequently confirmed by a psychiatrist in 1994 and a licensed clinical psychologist in 1995.

In grammar school, J.B. received special education from the Killingly Board of Education in a local public school by taking his academic subjects in self-contained classrooms and some "special" subjects in regular education classes. By seventh grade in about 1990, J.B.'s Planning and Placement Team ("PPT") recommended that he take some classes in a special education resource room and others in integrated classes.

In April 1991, following the sexual assault charges, DCF placed J .B. at Harmony Hill, a residential treatment facility in Chepachet, Rhode Island. All parties agree that his placement at Harmony Hill was for noneducational reasons. At a PPT meeting on May 15, 1991, Killingly agreed to pay for J.B.'s special education, except for summer school tuition, during his placement at Harmony Hill. DCF accepted financial responsibility for the room and board expenses. On July 3, 1991, a psychiatric evaluation recommended providing J.B. with individual counseling, a psychiatric residential placement, and a special education program.

By August 1991, J.B. was receiving individual psychotherapy and was participating in family therapy sessions. Within J.B.'s first year at Harmony Hill, however, J.B. was involved in at least two incidents of sexual misconduct. Due to his risk of re-offending, J.B.'s home visits were temporarily discontinued.

As of September 1991, J.B.'s reading and math skills were at the fourth grade level, and his writing skills and general knowledge were at the third grade level. By October 1992, J.B. had advanced one grade level and was performing at the fifth grade level.

At a PPT meeting on June 7, 1993, J.B. was found to require a "residential setting to profit from his special class program." J.B. remained at Harmony Hill, however, for noneducational reasons due to the extension of his delinquency petition. For the 1993-94 school year, J.B.'s special education program consisted of 27.5 hours per week of special education classes, two hours per week of counseling, and 1.5 hours per week of speech and language services. His program for the 1994-95 school year called for 5.5 hours per week of secondary special education classes and forty-five minutes per week of individual therapy.

Throughout his residence at Harmony Hill, J.B. continued to receive individual and family therapy. Despite making some progress towards managing his emotional problems, J.B. was still considered at risk for re-offending. After J.B. was observed inappropriately touching other students, J.B.'s home visits were again discontinued in February 1994.

In a July 30, 1994 report, one psychiatrist supported J.B.'s move to a more restrictive residential setting based on information from a Harmony Hill treatment team that J.B.'s therapy was stagnating. Later in 1994, J.B.'s treatment team recommended moving J.B. to a more restrictive hospital setting to address J.B.'s multiple personality disorder diagnosis. His treatment team also believed that J.B. was targeting other students for future sexual activity. They also stated that J.B. potentially would progress more in therapy if he were placed in a program with other young adults.

On May 31, 1995, J.B. was transferred to High meadows, which is a residential treatment program operated by DCF in Hamden, Connecticut. With J.B.'s parents' consent, DCF agreed to care for J.B. through an "Uncared for with Specialized Needs" commitment. See Conn.Gen.Stat. § 17a-11(d) (1992 & Supp.1997) (permitting DCF Commissioner to continue to care for children, already under DCF supervision, until age twenty-one). During the one-day evidentiary hearing before this Court, the parties indicated that J.B.'s parents would no longer support J.B. Thus, J.B. does not have the option of returning to his parents once he turns twenty-one on May 21, 1998.

After a PPT determined that J.B. had accumulated sufficient credits to graduate (although it is clear that J.B. had not achieved a high school level of competency in any subject area), the PPT issued J.B. a high school diploma dated June 1995. The PPT also determined that J.B. was no longer qualified to receive special education services, but gave him the option of continuing to attend the High Meadows school, which he elected to do.

On November 1, 1995, Diane Cox-Lindenbaum, an expert on sexual offenders, performed a social-sexual evaluation of J.B. She found that J.B.'s "sexual offenses are not due to [his] language disorder or low average intelligence." She also found that J.B. was at risk for re-offending. To protect J.B. and the community, she proposed a community-based residential treatment program which would include various therapies to address J.B.'s pedophilia and multiple personality disorder. She concluded that J.B. "will always require life-long supervision of some sort to ensure that he and his community remain safe. [He] could, however, attend a community educational setting if he has one-to-one constant supervision and the support of the school's administration."

In a March 13, 1996 meeting, a PPT determined that J.B. did not require a twenty-four hour residential setting for educational reasons. It also discontinued J.B.'s identification as learning disabled because J.B.'s "classroom functioning appeared to be commensurate with his intellectual ability." The individualized education program ("IEP")² provided that J.B.'s program should include seventeen hours per week of instruction in regular classes, thirty minutes per week of counseling, and forty-five minutes per week of direct speech and language services. At this time, J.B. was performing academically at a fifth to sixth grade level. By April 1997, J.B.'s reading skills were at a 6.4 grade level and his spelling skills were at a fifth grade level. His math skills were at a 4.6 grade level, but his skills improved with the use of a calculator.

While J.B. has been at High Meadows, he has not demonstrated any sexually offensive behavior.

FINDINGS OF THE HEARING OFFICER FROM THE ADMINISTRATIVE IMPARTIAL DUE PROCESS HEARING

On March 15, 1996, J.B., through counsel, requested an impartial due process hearing pursuant to 20 U.S.C. § 1415(b)(2) (1990) and Conn.Gen.Stat. § 10-76h(a)(1) (1996) to review his special education program and his current educational placement. The Connecticut State Board of Education appointed an independent hearing officer (the "Hearing Officer") who heard testimony over six days in 1996...