Orange Cnty. Dep't of Educ. v. California Dep't of Educ.

• Decision Date: 28 December 2011
• Docket Number: No. 09–56192.,09–56192.
• Citation: 668 F.3d 1052,11 Cal. Daily Op. Serv. 15481,2011 Daily Journal D.A.R. 18492,277 Ed. Law Rep. 74
• Parties: ORANGE COUNTY DEPARTMENT OF EDUCATION, Petitioner–Appellee, v. CALIFORNIA DEPARTMENT OF EDUCATION, Respondent–Appellant,andA. S., a minor; Los Angeles Unified School District; Charter Oak Unified School District; California Office of Administrative Hearings, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 15,481

2011 Daily Journal D.A.R. 18,492

277 Ed. Law Rep. 74

668 F.3d 1052

ORANGE COUNTY DEPARTMENT OF EDUCATION, Petitioner–Appellee,

v.CALIFORNIA DEPARTMENT OF EDUCATION, Respondent–Appellant,andA. S., a minor; Los Angeles Unified School District; Charter Oak Unified School District; California Office of Administrative Hearings, Respondents.

No. 09–56192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2010.Submission Withdrawn May 18, 2011.Resubmitted Dec. 8, 2011.Filed Dec. 28, 2011.

Marsha A. Bedwell, General Counsel, Amy Bisson Holloway, Assistant General Counsel, Michael E. Hersher, Deputy General Counsel, Edmundo Aguilar (argued), Deputy General Counsel, and Len Garfinkel, Deputy General Counsel, California Department of Education, Sacramento, CA, for the respondent-appellant.

Karen Van Dijk (argued) and Jennifer C. Brown, Best Best & Krieger, LLP, Irvine, CA, for the petitioner-appellee.

Kathleen M. Loyer (argued), Law Offices of Kathleen M. Loyer, San Clemente, CA, for respondent A.S., a minor.Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding. D.C. No. 8:08–cv–00077–JVS–MLG.Before: RAYMOND C. FISHER and JAY S. BYBEE, Circuit Judges, and EDWARD F. SHEA, District Judge.^*Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge BYBEE.

OPINION

FISHER, Circuit Judge:

We hold as a matter of California law that the California agency responsible for funding a special education student's education at an out-of-state residential treatment facility is the school district in which the student's parent, as defined by California Education Code section 56028, resides. We hold that A.S., the student whose education is at issue, had no “parent” under the 2005 version of section 56028. Thus, from July 28, 2006, when A.S. was placed at the out-of-state facility, until October 9, 2007, when an amended version of section 56028 took effect, California law did not designate any educational agency as responsible for A.S.'s education. The California Department of Education (CDE) was therefore responsible by default. We hold that A.S. did have a “parent” under the 2007 and 2009 versions of section 56028. CDE therefore was not responsible for A.S.'s out-of-state education after October 10, 2007, when the 2007 version of section 56028 took effect. We accordingly affirm in part and reverse in part the district court's judgment. The district court properly held CDE responsible for A.S.'s education from July 28, 2006 to October 9, 2007. The district court erred, however, by holding CDE responsible for A.S.'s education between October 10, 2007 and April 19, 2009.

I.

At all relevant times, A.S., a California minor, was eligible for special education services under the Individuals with Disabilities Education Act (IDEA) as an emotionally disturbed child. Joint Statement of Stipulated Facts ¶ 10. Since 1996, A.S. has been a dependent of the Orange County Juvenile Court, in accordance with California Welfare and Institutions Code section 300 et seq. Id. ¶ 1. That court terminated the parental rights of A.S.'s biological parents, including their educational rights, in 1999. Id. ¶ 5.

Lori Hardy was A.S.'s foster parent from approximately February 2000 to April 2004. Id. ¶ 6. Hardy is a resident of the City of Orange and at all relevant times resided within the Orange Unified School District. Id. ¶ 8. In April 2003, the juvenile court appointed Hardy as A.S.'s de facto parent. Id. ¶ 7. See Cal. R. Ct. 5.502(10); Cal. R. Ct. 5.534(e). It is undisputed that at all relevant times Hardy was authorized to make educational decisions on A.S.'s behalf. Joint Statement of Stipulated Facts ¶ 9.

In 2006, A.S.'s individualized education program (IEP) team, which had been convened by the Orange County Department of Education (“Orange County” or “the County”), referred A.S. to the Orange County Health Care Agency (OCHCA) for a mental health assessment. Id. ¶ 38. OCHCA recommended that A.S. be placed at Cinnamon Hills, a residential treatment facility in Utah. Id. ¶¶ 42, 47. The IEP team agreed with OCHCA's recommendation, and the juvenile court issued an order approving the placement. Id. ¶¶ 47, 50. A.S. was placed at Cinnamon Hills beginning July 28, 2006. Id. ¶ 53. Without conceding financial responsibility, Orange County fronted the costs of A.S.'s educational services at Cinnamon Hills from that date through April 19, 2009.

In October 2006, A.S. filed a request for a special education due process hearing. After mediation resolved all other issues, the only issue for the hearing was which public agency was responsible for funding A.S.'s placement at Cinnamon Hills. Because of A.S.'s various placements,¹ Orange County, Los Angeles Unified School District, Charter Oaks Unified School District and CDE were all identified as agencies possibly responsible for A.S.'s educational funding. In October 2007, the California Office of Administrative Hearings (OAH) issued an administrative decision naming Orange County the responsible agency. See Student v. Orange Cnty. Dep't of Educ., No. 2006100050, at 10 (Cal. Office of Admin. Hearings Oct. 31, 2007).²

Orange County appealed that decision to the United States District Court for the Central District of California, arguing that CDE is responsible for A.S.'s out-of-state education. The County argued that California law failed to make any public agency responsible for providing special education programs to children like A.S., who have no parents and are placed in residential treatment centers outside California. The County therefore argued that CDE should be held responsible by default.

CDE moved to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court denied that motion in a published decision, Orange Cnty. Dep't of Educ. v. A.S., 567 F.Supp.2d 1165 (C.D.Cal.2008), and then granted Orange County's motion for summary judgment. The court agreed with the County that California law failed to make any public agency responsible for A.S.'s education and deemed CDE responsible by default. CDE timely appealed to this court.

After oral argument, we certified the following question to the California Supreme Court under Rule 8.548 of the California Rules of Court:

Whether under California law the school district responsible for the costs of a special education student's education while the student is placed at an out-of-state residential treatment facility is the district in which the student's de facto parent, who is authorized to make educational decisions on behalf of the student, resides.

Orange Cnty. Dep't of Educ. v. Cal. Dep't of Educ., 650 F.3d 1268, 1268–69 (9th Cir.2011) (order). We certified this question because “deciding it would require us to answer novel and difficult questions of California law about the relationships among multiple provisions of the California Education Code and among numerous California governmental entities.” Id. at 1269. The California Supreme Court, however, declined our request for certification without explanation.

II.

We must decide, as a matter of California law, which California agency is responsible for funding A.S.'s educational placement in an out-of-state residential treatment facility. We first address whether the responsible agency is the school district in which the student's parent, as defined by California Education Code section 56028, resides. We then address whether Hardy, as A.S.'s de facto parent and the person authorized to make educational decisions on A.S.'s behalf, falls within the definition of parent under the 2005, 2007 and 2009 versions of section 56028.³

A. Whether Section 56028's Definition of Parent Applies to Section 48200

1. Background

The parties agree that California Education Code section 48200 establishes the general rule under California law that the school district responsible for the education of a child between the ages of six and 18 is the district in which the child's “parent or legal guardian” resides. See Katz v. Los Gatos–Saratoga Joint Union High Sch. Dist., 117 Cal.App.4th 47, 11 Cal.Rptr.3d 546, 553 (2004) (“Section 48200 embodies the general rule that parental residence dictates a pupil's proper school district.”). The parties disagree, however, about how California law defined “parent” for purposes of section 48200 while Orange County was fronting the costs for A.S.'s placement in Cinnamon Hills.

In 2006, when Orange County began fronting those costs, no provision of the California Education Code specified that it provided the definition of parent for section 48200, either for students as a whole or for special education students in particular. In January 2009, the California legislature amended section 56028 of the California Education Code to provide that, “[i]f a judicial decree or order identifies a specific person or persons under [Education Code section 56028(a)(1)-(4) of Part 30 (‘Special Education Programs') ] to act as the ‘parent’ of a child or to make educational decisions on behalf of a child, then that person or persons shall be determined to be the ‘parent’ for purposes of ... Article 1 (commencing with Section 48200) of Chapter 2 of Part 27.” Cal. Educ.Code. § 56028(b)(2). Thus, beginning in 2009, the definition of parent in section 56028 indisputably applies to section 48200, at least under some circumstances. For purposes of this appeal, the parties agree that, as of January 2009, the agency responsible for funding A.S.'s out-of-state placement was the school district in which A.S.'s parent resided, see Cal. Educ.Code § 48200, as “parent” was defined under section 56028.⁴ The parties dispute, however, whether section 56028 supplied a definition of parent for section 48200 before January 2009. If section 56028 does not specify the governmental entity responsible for a special education student's education, we must...