Martin v. School Bd. of Prince George County

• Decision Date: 07 October 1986
• Docket Number: No. 0994-85,0994-85
• Citation: 3 Va.App. 197,348 S.E.2d 857
• Parties: , 35 Ed. Law Rep. 302 David L. MARTIN, John E. Martin, and Charlotte F. Martin v. The SCHOOL BOARD OF PRINCE GEORGE COUNTY. Record
• Court: Virginia Court of Appeals

Page 857

348 S.E.2d 857

3 Va.App. 197, 35 Ed. Law Rep. 302

David L. MARTIN, John E. Martin, and Charlotte F. Martin v. The SCHOOL BOARD OF PRINCE GEORGE COUNTY.

Record No. 0994-85.

Court of Appeals of Virginia.

Oct. 7, 1986.

Peter W.D. Wright, Richmond, for appellants.

Kathleen S. Mehfoud (Lacy & Mehfoud, P.C., Richmond, on brief), for appellee.

Present: BENTON, HODGES and KEENAN, JJ.

BENTON, Judge.

This case concerns the responsibility of the School Board of Prince George County (the School Board) under state and federal law to educate David Martin, a handicapped youth. David and his parents appeal from the final judgment of the circuit court which reversed the decisions of administrative hearing officers that required the School Board to place David in a residential program. Exercising our jurisdiction under Code § 17-116.05(1), ¹ we conclude that the decision of the circuit court was not plainly wrong and affirm the judgment. Code § 8.01-680; Dwyer v. Yurgaitis, 224 Va. 176, 178, 294 S.E.2d 792, 793 (1982).

David is the adopted son of John and Charlotte Martin. According to his parents, David was physically abused by his natural father and his foster parents. Reports by mental health professionals indicate that he suffers serious emotional disabilities, such as lack of self-esteem and an inability to check his aggressive impulses or accept responsibility for his actions. David's performance on various tests place him in what is described as the low-average to average range of intelligence. According to school reports and tests, David performed well in reading tasks but suffered a learning disability in mathematics.

The controversy in this case involves the School Board's obligation to educate David in accordance with the Education For All Handicapped Children Act (the Act), 20 U.S.C. §§ 1400-1420 (1982), and the Virginia special education statute, Code §§ 22.1-213 to 22.1-221. To receive federal funds for its special education programs the Commonwealth must have in effect "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1) (1982). The Virginia special education statute expresses such a policy, Code §§ 22.1-214-15, and mandates to the State Board of Education the responsibility for implementation of this policy by the local school divisions. Code § 22.1-214.

Both the Act and the Virginia statute manifest an intention that local school divisions educate each handicapped child according to the child's unique needs and capabilities. The central instrument for carrying out this intention is the "individualized education program" (IEP). The IEP is a written document developed after a meeting between a handicapped child's parents, his teacher, and a qualified representative of the local school division. 20 U.S.C. § 1401(19) (1982); State Regulations II(B)(2). The IEP must contain specified information regarding the child, including the present levels of educational performance, annual goals, short-term instructional objectives, the specific educational services to be provided, and the extent to which such child will be able to participate in regular educational programs. 20 U.S.C. § 1401(19) (1982). The local school division must review the IEP at least annually and make appropriate revisions to the document. See 20 U.S.C. § 1414(a)(5) (1982); State Regulations II(B)(2)(c)(2). Furthermore, each IEP must comply with the Act's requirement that each state establish:

procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily[.]

20 U.S.C. § 1412(5)(B) (1982) (emphasis added). See also State Regulations II(B)(1)(d) ("least restrictive environment" requirement).

In some cases, however, the local school division may not be able to educate a handicapped child in regular or special classes. Under such circumstances, the Act requires placement in a residential program. See 20 U.S.C. § 1413(a)(4)(B)(i) (1982); 34 C.F.R. § 300.302 (1985). The Virginia statute provides for residential placement as follows:

If a school division is unable to provide a free appropriate public education to a handicapped child and it is not appropriately available in a state facility, it shall offer to place the child in a nonsectarian private school for the handicapped approved by the Board of Education or such other licensing agency as may be designated by state law. The school board of such division shall pay to, or on behalf of, the parent or guardian of such child the reasonable tuition cost and other reasonable charges as may be determined by the Board of Education.

Code § 22.1-218(A). See State Regulations II(B)(1)(c)(2).

The placement of a handicapped child is not a decision that can be made in a mechanical fashion by referring to a fixed schedule of placements without regard to the child's particular educational needs. State Regulations II(B)(1)(c). A local school division's basic obligation under federal and state law is to provide "free appropriate public education." The continuum of placements derived from the "least restrictive environment" requirement, a significant aspect of the education of handicapped children, is but one consideration in the determination of which placement will satisfy that basic obligation.

After attending Dinwiddie Elementary School until Grade 6, David was tested in 1978 and placed in a program for emotionally disturbed (ED) children at the school. Disciplinary problems caused his removal from the program, and David was sent to the Commonwealth Psychiatric Center (later known as the Psychiatric Institute of Richmond) in June, 1979 for an evaluation.

David was placed in a learning disabled program at Clements Junior High School in August, 1979. Disciplinary problems caused his removal from the school and placement at the Jacob Silverberg Academy, a part of the Commonwealth Psychiatric Center. David was rejected for residential placement by a private institution in Norfolk and remained at the Jacob Silverberg Academy for three semesters, from January, 1980 to June, 1981. At the Academy, he was placed in a structured ED classroom and received counseling. A Richmond neurologist examined David in August, 1980, concluded that David's problems were predominantly emotional, and indicated that he would support a residential placement if David's parents sought such a placement. In November, 1980, David was admitted to the Psychiatric Institute of Richmond after engaging in a sexual act with a five-year old relative.

In March, 1981, David was discharged from the Psychiatric Institute and returned home; however, he continued as a day student at the Psychiatric Institute's Educational Development Center (successor to the Jacob Silverberg Academy). A report by a psychological counsellor, dated May 8, 1981, noted that David appeared ready to be returned to the public schools. The report also indicated that David's mother reported that he exhibited less control at home and that she believed a residential placement was warranted. The counsellor recommended a residential placement because of the "disparity between his behaviors." A majority of the special education eligibility committee of the Prince George County Schools voted in August, 1981 to place David in a self-contained ED classroom at Dinwiddie Junior High School. Kenneth Bussey, the school psychologist, issued a "minority report" stating that the ED placement was not sufficiently restrictive to provide for David's needs and that residential placement "is both warranted and prudent." The majority recommendation was implemented in September, 1981, with the consent of David's mother.

At the junior high school, David was "mainstreamed" for three class periods each day and placed in a self-contained classroom for one and one-half hours. His behavior at home apparently deteriorated; a series of violent episodes at home caused his readmission to the Psychiatric Institute in May, 1982. A psychologist at the Psychiatric Institute informed the Prince George County School authorities that David was emotionally unable to return to school.

A Psychiatric Institute instructional summary, dated June 13, 1982, recommended instruction in a "structured environment" and close observation to reduce the potential of aggressive behavior. David was discharged in July, 1982 with the observation that his parents were considering the option of residential placement if "David does not fit in with the best interests of the family." The United Methodist Children's Home in Richmond informed the parents that David's attitude toward his peers and his medication requirement prevented his placement in the Home.

In July, 1982, the Prince George County school psychologist concluded that David needed to be placed in a self-contained ED classroom, and recommended that he become involved in prevocational activities and vocational preparation. With the permission of David's mother, the eligibility committee placed David in a self-contained ED class at Moore Junior High School which offered learning disability resources counselling, and vocational training. School records indicated that David was mainstreamed for three daily class periods and placed in a self-contained setting for two daily class periods. David assaulted his parents in November and December, 1982, and was placed in a detention home for one week.

In December, 1982, the eligibility committee voted to pay the educational costs of a private school placement. Minutes of the committee meeting...