R.B. ex rel. F.B. v. Napa Valley Unified School

• Decision Date: 16 July 2007
• Docket Number: No. 05-16404.,05-16404.
• Citation: 496 F.3d 932
• Parties: R.B., by and through her Guardian Ad Litem, F.B.; F.B., Plaintiffs-Appellants, v. NAPA VALLEY UNIFIED SCHOOL DISTRICT, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.3d 932

R.B., by and through her Guardian Ad Litem, F.B.; F.B., Plaintiffs-Appellants, v. NAPA VALLEY UNIFIED SCHOOL DISTRICT, Defendants-Appellees.

No. 05-16404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 2007.

Filed July 16, 2007.

George D. Crook and Henry Tovmassian, Newman Aaronson Vanaman, Sherman Oaks, CA, briefed the case, and Mr. Crook argued the case for the appellants.

Sally Jensen Dutcher, General Counsel, and Scott N. Kivel, Law Offices of Scott N. Kivel, Petaluma, CA, argued and briefed the case for appellees.

John E. Hayashida, Parker & Covert, Tustin, CA, was on the brief for amicus curiae California School Boards Association Education Legal Alliance.

Appeal from the United States District Court for the Northern District of California; Bernard Zimmerman, Magistrate

Judge, Presiding. D.C. No. CV 04-00094-BZ.

Before: CYNTHIA HOLCOMB HALL and DIARMUID F. O'SCANNLAIN, Circuit Judges, and IRMA E. GONZALEZ,^* Chief District Judge.

GONZALEZ, Chief District Judge:

R.B., a minor, by and through her Guardian Ad Litem, F.B., and F.B. ("appellants") appeal the district court's entry of summary judgment in favor of the Napa Valley Unified School District ("appellee" or "District"). The district court, in turn, upheld the decision by the California special education hearing officer ("SEHO") that R.B. is not entitled to special education protection and services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and corresponding provisions of the California Education Code. Because R.B. did not qualify for special education services, appellants were ineligible for reimbursement of the expenses they incurred in placing R.B. at Intermountain Children's Home and Services ("Intermountain"), a private school in Helena, Montana.

Appellants challenge the SEHO's decision on procedural and substantive grounds. Appellants claim that R.B.'s individual education program (IEP) team should have included her teacher or therapist from Intermountain and that this procedural violation, in and of itself, denied R.B. a free appropriate public education (FAPE). Appellants further claim that the SEHO and district court erred in finding that R.B. did not have a "serious emotional disturbance" under the criteria enumerated in 34 C.F.R. § 300.7(c)(4) (2003) and Cal.Code Regs. tit. 5 § 3030(i). Appellants contend R.B. could not form satisfactory relationships with peers and teachers, manifested inappropriate behavior under normal circumstances, and was pervasively depressed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I. BACKGROUND

R.B. was born in 1991 to a mother who abused cocaine, alcohol, and heroin. In infancy, R.B. demonstrated symptoms of exposure to illegal drugs in utero (including irritability, delayed visual maturation, and delayed motor skills). Both of R.B.'s birth parents were incarcerated. F.B., a single parent and schoolteacher, adopted R.B. at eighteen months of age. F.B.'s mother assisted in caring for R.B.

R.B. was molested by her natural father when she was two. Afterward, she required a year of play therapy because of her self-mutilation and inappropriate displays of affection. A psychologist diagnosed R.B. with Attention Deficit Hyperactivity Disorder (ADHD) and began prescribing medication when she was three. Other diagnoses included Reactive Attachment Disorder and Post Traumatic Stress Disorder.

R.B. was expelled from three preschool programs because of her classroom misconduct. F.B. then placed R.B. with the District, which determined R.B. was eligible for special educational services and developed an IEP program for her. R.B. transitioned into a regular kindergarten class with resource support, taught by Janis Sparks.

During R.B.'s first grade year at Donaldson Way Elementary School, the District concluded that R.B. no longer qualified for special educational services. Instead, the District found R.B. was a "qualified handicapped individual" under Rehabilitation Act § 504 and developed a behavioral intervention plan. F.B. acquiesced in these changes only after the District agreed to a neutral psychological evaluation. Dr. Emily Jordan conducted the evaluation and confirmed the District's conclusion that R.B. was no longer a "child with a disability."

R.B.'s elementary school history includes a series of disturbing incidents. In second grade, R.B. banged a classmate's head against a computer monitor for refusing to give up the computer at recess. R.B. was suspended in third grade for throwing chairs and running off campus until law enforcement restrained her. R.B. was suspended again in fourth grade when she refused to take her ADHD medication, yelled at her teacher, and was again restrained by law enforcement.

R.B.'s behavior reached an extreme point during the second trimester of fifth grade. She was suspended twice in the span of just over a month. First, R.B. twisted a child's arm during recess and said she hoped her music teacher would die. Then, R.B. poked another student with a mechanical pencil while refusing to turn in her work. At the time, R.B. was alternately refusing to take her ADHD medications and receiving occasional double dosages from F.B. Working with R.B. and F.B., the District adopted a behavior management plan, which largely remedied R.B.'s misconduct. Throughout elementary school, R.B. excelled in her classes, scored high marks on achievement tests, and frequently made the honor roll.

In the spring of 2002, F.B. met with an educational consultant who referred R.B. to Dr. Paula Solomon for a psychological evaluation. Without observing R.B. in the classroom, Dr. Solomon recommended treatment in a residential placement program. Therefore, on July 15, 2002, F.B. wrote to the District that R.B. had "reached a crises [sic] point." F.B. said that she would place R.B. in a residential treatment facility within ten (10) days and expected the District to reimburse her for the placement.

F.B. placed R.B. with Intermountain. Tina Morrison, the Intermountain staff psychologist, was R.B.'s therapist. Morrison observed that R.B. engaged in controlling and physically aggressive behavior toward staff and fellow students, to the point that R.B. was "derailed cognitively" at times. R.B.'s teacher at Intermountain was Kathy Brandt. R.B. took almost twice as long as the average Intermountain student to transition into Brandt's classroom. From November to March 2003, Brandt observed R.B. intimidating other students almost daily.

On August 6, 2002, F.B. requested an impartial due process hearing, pursuant to 20 U.S.C. § 1415(f). Therefore, the District arranged for its psychologist, Denise Struven, to travel to Intermountain to conduct an evaluation. Struven concluded that R.B. did not qualify for special education benefits under the IDEA.

On January 31, 2003, the following individuals met as part of the District's IEP team: Laura Miller, a special education teacher and Director of Special Education for the district; Sparks, then a principal of Donaldson Way Elementary; Struven and Donna Poninski, District psychologists; Sally Dutcher, attorney for the District; Jane F. Reid, then-counsel for appellants; and F.B. No one from Intermountain attended, although Struven reported her observations of R.B. there. The IEP team concluded R.B. was not eligible for special education benefits.

F.B. appealed to the California State Education Agency, pursuant to 20 U.S.C. § 1415(g). Hearing Officer Jessica Katz of the California Special Education Hearing Office conducted the hearing over six days in June and August 2003. The SEHO found for the District, concluding that R.B. did not meet the IDEA's standard for a child with a "severe emotional disturbance" for either the 2001-02 school year (R.B.'s fifth grade year at Donaldson Way Elementary) or the 2002-03 school year (R.B.'s first year at Intermountain). The SEHO also found that any procedural violation in the composition of the IEP team did not result in a lost educational opportunity for R.B.

On January 5, 2005, F.B. filed a complaint for violation of the IDEA in the Northern District of California. The district court granted the District's motion for summary judgment, and denied appellants' cross-motion. After independently reviewing the record and giving due deference to the SEHO, the district court agreed that R.B. did not have a "serious emotional disturbance" under the IDEA and that any procedural violation did not result in a lost educational opportunity. Appellants timely appealed on July 5, 2005.

This court has jurisdiction under 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

The court reviews findings of fact for clear error, even if those findings are based on the administrative record. Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir.2001). A finding of fact is clearly erroneous if "`the reviewing court is left with a definite and firm conviction that a mistake has been committed.'" Id. (quoting Burlington N., Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir.1983)). Mixed questions of fact and law are reviewed de novo unless, as here, the question is primarily factual.¹ Id.; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.1987).

When a party challenges the outcome of an IDEA due process hearing, the reviewing court receives the administrative record, hears any additional evidence, and, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B) (2003). Courts give "`due weight'" to the state administrative proceedings, Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 775 (9th Cir.2007) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)), and, at a minimum, "`must consider the findings carefully,'" Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,...