J.B. v. Tuolumne Cnty. Superintendent of Sch.
| Decision Date | 18 June 2020 |
| Docket Number | CASE NO.: 1:19-cv-00858-NONE-EPG |
| Parties | J.B., by and through his guardians ad litem, ADAM BILLIET and CORRIE BILLIET, Plaintiff and Counter-Defendant, v. TUOLUMNE COUNTY SUPERINTENDENT OF SCHOOLS, et al., Defendants and Counter-Claimants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE DECISION OF THE CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS BE AFFIRMED IN PART AND REVERSED IN PART
ORDER GRANTING MOTION TO SUPPLEMENT THE RECORD
J.B., a minor, by and through his guardians ad litem, Adam Billiet and Corrie Billiet (collectively "Parents"), appeals from an education due process hearing and decision under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. J.B. contends that the decision of the California Office of Administrative Hearings ("OAH"), issued by Administrative Law Judge Tiffany Gilmartin ("ALJ"), erred in several ways and should be overturned in part. The Tuolumne County Superintendent of Schools ("TCSS") and Curtis Creek Elementary School District ("District") have filed a cross-appeal, also contending that the decision issued by the ALJ erred in several ways and should be overturned in part.1 The Court recommends that the ALJ's decision be affirmed in part and reversed in part.
Also before the Court are the unopposed requests of TCSS and District (collectively, local education agencies or "LEAs") for judicial notice (ECF Nos. 38, 42), and J.B.'s motion to supplement the record (ECF No. 32). The Court will grant the unopposed requests for judicial notice and will also grant J.B.'s motion to supplement the record.
The following factual background is taken from the ALJ's findings of fact, except as otherwise specifically noted.
J.B. is a minor child who is eligible for special education and related services under the primary category of emotional disturbance, and the secondary category of specific learning disability. J.B.'s family moved to Tuolumne County and began residing within LEAs' boundaries in 2015, when J.B. was in first grade. At the time of the hearing before the ALJ, J.B. was eleven years old and in fifth grade. He is now twelve years old and has completed his sixth grade year.
J.B. has had emotional and behavioral struggles from an early age, including extreme and sudden violent behaviors since age five. (AR 1820-34, 1835.) J.B. has exhibited significant behavioral issues at both home and school and Parents have taken J.B. to see various mental health professionals over the years. J.B. has been treated by a psychiatrist since 2013 for behavior that includes eloping from both home and school, hallucinating that he is a spy or a detective, making weapons out of available objects, seeing goblins, and hearing voices that cause him to smear feces on walls. (AR 3153, 3157, 3172, 2173, 3178, 3186, 3411-15, 5308-10, 5318-22, 5682-83; 5689, 5834.) J.B. has been "5150'd"2 for dangerous, aggressive, and/or self-harmingbehavior3 at least fourteen times, with the most recent in January 2019. (AR 3153, 3157, 3164, 3172, 3173, 3178, 3186, 3411-15, 3842-46, 3848-50, 5308-5310, 5318, 5585-86, 5682, 5683, 5689, 5690, 5834-36.).
Prior to the start of the 2016-17 school year, J.B. ran away from Parent, and Parent contacted law enforcement, who took J.B. into custody in restraints and to the hospital for a psychiatric evaluation. J.B. was hospitalized for one week. Once released, J.B. was enrolled at Curtis Creek Elementary, a comprehensive elementary school within the District. At the end of the first day of school, when J.B.'s mother came to pick him up, he refused to get into the car and instead eloped from the school site with his mother and the principal in pursuit. J.B. attacked the principal with a stick and bit him. Following this attack, Parents were informed that J.B.'s behavior was not suitable for a comprehensive elementary school and J.B. was placed at the Nexus program. The Nexus program is a structured behavioral support program intended to help students with behaviors that interfere with their learning. The program provides students with behavior and social emotional supports in a specialized classroom on a general education campus.
On December 2, 2016, J.B. had a behavior incident on the school bus during which he required numerous prompts for redirection, spit at another student, and was banging the seat belts together. Parents received a warning letter from the transportation coordinator. J.B. was also suspended on December 15, 2016, for jumping on another student, knocking the student over, throwing a rock at staff, and running away.
An individualized education plan ("IEP") team meeting was held on December 2, 2016. J.B. was found to qualify for mental health services and the IEP team offered 180 minutes monthly of individual counseling to support positive peer interactions and emotional regulation.Parent consented to this IEP offer on December 12, 2016.
J.B.'s annual IEP meeting was convened on January 4, 2017. The meeting was continued to January 31, 2017. The team reviewed assessment data from J.B.'s psychoeducational assessment. J.B.'s verbal comprehension and visual spatial were in the average range, J.B.'s fluid reasoning was below average, and he had deficits in his working memory and processing speed. J.B. was identified as clinically significant in all areas of executive functioning. J.B.'s academic assessment also revealed math deficits in calculation. Both raters on his Behavior Assessment System for Children-3rd Edition identified J.B. as clinically significant in hyperactivity, aggression, conduct problems, depression, typicality, and withdrawal. Parent provided private assessment results ruling out Autism as a diagnosis for J.B.
The IEP team identified writing, math, fine-motor skills, bilateral coordination, and social skills as areas of need. J.B.'s executive function deficits were an unaddressed area of need. LEAs knew of J.B.'s need for redirection, aggressive outbursts, and frequent prompting by the classroom aide to complete his work but failed to provide any goals in this area. The IEP team developed an executive function goal of keeping J.B.'s work space orderly but did not develop goals to address his other areas of executive functioning need.
The occupational therapist reviewed J.B.'s three occupational therapy goals and found that J.B. met both fine motor goals but did not meet his bilateral coordination goal of being able to shoot a basketball through a standard height hoop 50 percent of the time. The school district team recommended discontinuing occupational therapy. J.B. continued to have fine and gross motor needs.
The IEP team also determined J.B. did not need assistive technology services. However, on February 24, 2017, the IEP team agreed J.B. needed the assistance of an educational tablet that Parents were required to provide. Despite this, no assistive technology assessment was recommended for J.B.
J.B.'s previous IEP contained a total of seven goals. By the January 31, 2017 IEP, J.B. met only three goals: the two fine motor goals and a goal in respecting personal space. The IEP teamfound that J.B.'s behavior impeded his learning and that of others. Parent raised a concern about J.B. being restrained on the bus due to his behavior. The IEP team determined J.B.'s behavior could be managed through classroom reinforcement systems and mental health support and developed two new behavior goals to address positive peer interactions and managing anger, stress, and frustration. Both goals were set in a counseling setting, not the classroom, and would be addressed by the mental health clinician.
J.B.'s school-based mental health needs and goals were serviced by his mental health clinician Jordan Reiser. Ms. Reiser obtained her master's degree in psychology with an emphasis in marriage and family therapy in 2009. Ms. Reiser completed the requisite 3000 practicum hours to obtain a license as a marriage and family therapist in 2011. Ms. Reiser referred to herself as a mental health associate. Ms. Reiser was familiar with J.B. She was aware of J.B.'s behavior challenges and his active imaginary world. She wrote J.B.'s behavior goals without any assistance from other staff or team members. She admitted that she was not the best at writing goals, and that she wrote J.B.'s goals to be addressed/achieved in a counseling setting and not in a classroom setting.4 (AR 4325.)
The IEP team offered J.B. placement in the Nexus program. The team developed 12 goals for J.B. to work on over the next 12 months. One behavior goal addressed positive peer interactions such as introductions, sharing, and starting a conversation with a 70 percent success rate in two out of three trials in a counseling setting. Another goal addressed J.B.'s need to regulate his emotions. This goal provided that J.B., in a counseling setting, would identify five strategies for managing his own anger, stress, frustration, and anxiety 70 percent of the time in two out of three trials as measured by the mental health clinician. Other goals included a number sense goal, which required J.B. to add and subtract double digits up to 50 with 80 percent accuracy, and a spelling goal of 80 percent accuracy from a fourth-grade sight list.
The IEP also offered services, supplementary aides, accommodations, and supports in the classroom. The services offered included 120 minutes monthly of individual mental healthcounseling, which was a 60 minute per month reduction from the services J.B. was offered in December 2016, and 204 minutes daily of specialized academic instruction. The supplementary aids, accommodations, and classroom supports included collaboration between staff and parents; a daily behavior chart to track behaviors;...
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