Ketherine G. ex rel. Cynthia G. v. Kentfield Cch.

• Citation: 261 F.Supp.2d 1159
• Decision Date: 07 April 2003
• Docket Number: No. C 01-1344 SBA.,C 01-1344 SBA.
• Parties: KATHERINE G., a minor By and Through her guardian ad litem, CYNTHIA G., Plaintiff and Counter-defendant, v. KENTFIELD SCHOOL DISTRICT, et al., Defendants and counterclaimants.
• Court: U.S. District Court — Northern District of California

261 F.Supp.2d 1159

KATHERINE G., a minor By and Through her guardian ad litem, CYNTHIA G., Plaintiff and Counter-defendant, v. KENTFIELD SCHOOL DISTRICT, et al., Defendants and counterclaimants.

No. C 01-1344 SBA.

United States District Court, N.D. California.

April 7, 2003.

COPYRIGHT MATERIAL OMITTED

Varma & Clancy, Attorneys at Law, Bob N. Varma, Esq., Sacramento, CA, for Plaintiff.

Law Firm of Lozano Smith, Jan E. Tomsky, San Rafael, CA, for Defendants, Kentfield School District and Marin County Office of Education.

ORDER ADJUDICATING PARTIES' MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT

ARMSTRONG, District Judge.

Plaintiff Katherine G. ("Plaintiff or "Katherine"), by and through her guardian ad litem, Cynthia G., brings the instant action pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq., against the Kentfield School District and the Marin County Office of Education (collectively, "Defendants" or the "District"), seeking review of portions of a special education administrative hearing decision. The District has filed a counterclaim against Katherine also pursuant to the IDEA, seeking review of different portions of the decision.

The parties are presently before the Court on Plaintiffs Motion for Summary Judgment ("Plaintiffs Motion") and Defendants' Cross-motion for Summary Judgment on Plaintiffs Claim ("Defendants' Cross-motion"), which relate to Katherine's claim against the District, and on Defendants' Motion for Summary Judgment on Their Counterclaim ("Defendants' Motion") and Plaintiffs Cross-motion for Summary Judgment ("Plaintiffs Crossmotion"), which relate to the District's counterclaim against Katherine.¹ Having read and considered the papers submitted and being fully informed, the Court DENIES Plaintiffs Motion and GRANTS the District's Cross-motion, and DENIES the District's Motion and GRANTS Plaintiffs Cross-motion.²

BACKGROUND

A. Factual Summary

Katherine is a minor child who resides in the Kentfield School District, which lies in Marin County, California. In or around 1998, Katherine, who was then three years old, was diagnosed with language disorder. At her initial Individualized Education Plan ("IEP") meeting on June 19, 1998, the IEP team found Katherine eligible for special education services under the IDEA. In September 1998, Katherine was placed in a special day pre-school class (the "SDC") taught by Clara Yourman, a credentialed special day class teacher and certified speech and language pathologist, at Marindale. Katherine attended Ms. Yourman's class for five hours per day (8:00 a.m. to 1:00 p.m.), four days per week (Tuesday through Friday), during the entire 1998-1999 school year, as well as the 1999-2000 school year.

In March 1999, in preparation for the upcoming annual IEP meeting, Ms. Yourman administered several tests to Katherine to assess her in the areas of receptive and expressive language "to determine her current functioning, goals and placement." The IEP team subsequently convened in May 1999. At the meeting, the team reviewed Ms. Yourman's speech and language assessment and Katherine's goals and objectives, as written in the IEP. The team recommended that Katherine remain in Ms. Yourman's SDC for the remainder of the 1999-2000 school year, a continuation of Katherine's previous goals and objectives (none of which had been achieved), direct occupational therapy one time each week, and a 19-day extended school year program in Ms. Yourman's SDC for the communicatively handicapped.³ In August 1999, Katherine's parents contracted with Dr. Ilene Lee, a psychologist in private practice, to provide behavioral consultation services for the family.

In September 1999, Katherine began attending the "after-school" program at ABC Academy ("ABC") three days each week for a total of 12 to 15 hours each week during the 1999-2000 school year. ABC was a private preschool located outside Kentfield that served children from preschool through the second grade. Katherine was enrolled at ABC Academy for "day care" purposes and to provide her with opportunities to interact with nondisabled, same-age peers. Katherine's "after-school" program included nondisabled preschool-age children. Katherine also went on to attend ABC's summer school program, taught by Jamaica Stevens, for six weeks (between three and four days each week for a total of 12 to 15 hours each week) during the summer of 2000.

In September 1999, Katherine's parents contacted Paula Cline from Kentfield School District ("Kentfield") and inquired whether Kentfield would provide transportation from Marindale to ABC. Their request was denied.

Beginning in either February or March 2000, Katherine's parents sought private speech and language therapy services at the recommendation of Dr. Lee. Two different speech and language pathologists, Janet Rizzi and, then, Teri-Lyn Cousley, provided a number of therapy sessions for Katherine.

In the spring of 2000, Cynthia G. contacted Ms. Cline to discuss transportation for Katherine from Marindale to her afternoon placement at ABC and to discuss whether Kentfield would provide an aide to work with Katherine at ABC. On March 6, 2000, an IEP meeting was convened to discuss Ms. G.'s requests. The IEP agreed that the Early Intervention Program ("EIP") staff would take "an informal look" at Katherine's program at ABC to determine if she required an aide at ABC. After observation of Katherine at ABC by members of the EIP staff, and a subsequent IEP meeting in April 2000, the IEP team denied both of Ms. G.'s requests—an aide at ABC and transportation services.

Also in April 2000, Ms. Yourman assessed Katherine in preparation for the upcoming annual IEP meeting. Ms. Yourman administered a number of tests, which indicated that Katherine's expressive language had improved in her SDC over the past year; however, the tests also indicated that Katherine was not quite ready for participation in a full inclusion placement in a regular kindergarten and that she required a structured environment for further improvement. Katherine's parents sent a letter dated April 25, 2000, about one week before Katherine's annual IEP meeting was scheduled to convene, to the superintendent of Kentfield. The letter expressed, among other things, their concern that placing Katherine in a special day class would not be in her best interests and that the G.'s were seeking to have Katherine placed in the regular kindergarten classroom at Bacich Elementary ("Bacich"), a Kentfield elementary school.

Katherine's annual IEP meeting convened on May 1, 2000, and again on May 25, 2000. The parties, however, failed to reach an agreement with regard to Katherine's placement for the 2000-2001 school year or the 2000 ESY. Katherine's parents were of the position that Katherine should be enrolled at Bacich during the 2000-2001 school year; for the 2000 ESY, they desired Katherine to be placed at ABC for six weeks, provided an aide, and provided speech therapy by Patricia Toboni, occupational therapy at ABC, and audio integration training. Kentfield's representatives, however, were apparently of the view that Katherine should remain in Ms. Yourman's SDC.

Over the summer, Katherine's parents procured private speech and language services, as well as "auditory integration training," and continued Katherine's placement at ABC. She did not attend any Kentfield program, nor did she receive any related services from Kentfield during the summer of 2000.

On August 7, 2000, Kentfield sent a letter to Katherine's parents regarding the proposed placement for the 2000-2001 school year. Kentfield offered placement in the morning, kindergarten special day class at Coleman Elementary School taught by an experienced and qualified special day class instructor, and an inclusion experience in the regular education kindergarten class at Bacich from 12:00 p.m. to 2:15 p.m. every day. In addition, Kentfield offered direct speech and language services, three sessions per week, thirty minutes per session; speech therapy consultations with a teacher, once every two weeks, thirty minutes; direct occupational therapy services, two sessions per week, thirty minutes per session; occupational therapy consultation with a teacher, sixty minutes per month; transportation services; Ms. Yourman's consultation with each of Katherine's teachers for a total of 15-30 minutes per week; and the current SDC teacher's consultation with the regular education teacher, 15-30 minutes per week. Katherine's parents rejected this proposed placement. They enrolled her instead at Trinity Lutheran School ("Trinity"), a private school, for the 2000-2001 school year and engaged private support services.

B. Procedural History

1. Due Process Hearing Before, and Decision by, SEHO Hearing Officer

In early June 2000, both Katherine and the District separately requested a due process hearing. Trevor Skarda, Hearing Officer (the "HO") for the California Special Education Hearing Office ("SEHO"), presided over the consolidated hearing. The hearing took place over the course of eleven days in August, September, and October 2000. The HO heard testimony from seventeen witnesses and considered extensive documentary evidence. The parties submitted closing memoranda, and the hearing was deemed closed as of December 12, 2000.

On January 5, 2001, the HO issued a 33page written decision (the "Decision" or "Dec."). The HO found that the District failed to provide Katherine with a free appropriate public education ("FAPE") for the 1999-2000 school year and the 2000 ESY. (Dec. at 13-24, 32.)⁴ Specifically, the HO found that the District committed a procedural violation of the IDEA by failing adequately to discuss with Katherine's parents opportunities for "mainstreaming"—placement in a regular academic setting. (Id. at 17.) This failure, the HO found, resulted in the loss of educational opportunity for Katherine, and therefore it constituted...