R.F. v. Delano Union Sch. Dist.

• Decision Date: 19 December 2016
• Docket Number: 1:16–cv–01796–LJO–JLT
• Citation: 224 F.Supp.3d 979
• Parties: R.F., a minor, BY his Guardian Ad Litem, Sean FRANKEL, Plaintiff, v. DELANO UNION SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Eastern District of California

224 F.Supp.3d 979

R.F., a minor, BY his Guardian Ad Litem, Sean FRANKEL, Plaintiff,

v.DELANO UNION SCHOOL DISTRICT, Defendant.

1:16–cv–01796–LJO–JLT

United States District Court, E.D. California.

Signed December 19, 2016

David M. Grey, Grey & Grey, Santa Monica, CA, for Plaintiff.

Kyle W. Holmes, Darren J. Bogie, Schools Legal Service, Bakersfield, CA, for Defendant

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. 5)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiff R.F., a minor, brings this action against Defendant Delano Union School District under the Individuals with Disabilities Education Act ("IDEA"). Plaintiff seeks a Temporary Restraining Order ("TRO")¹ and an order to show cause regarding a preliminary injunction compelling Defendant to provide behavioral and educational services consistent with Plaintiff's most recent implemented Individualized Education Program ("IEP") developed while he attended the Torrance Unified School District ("Torrance"). Defendant objects, arguing that Plaintiff has not made a sufficient showing to merit a TRO. For the reasons explained below, Plaintiff's motion for a TRO is DENIED.

II. JUDICIAL NOTICE

Plaintiff asks that the Court take judicial notice of excerpts of the administrative record related to his due process hearing request and stay-put motion filed at the Office of Administrative Hearings ("OAH"). Doc. 5–2 at 1. Those portions were attached to the motion for TRO as Exhibits A through J. Defendant did not object to judicial notice, and cited to the administrative record excerpts as offered by Plaintiff. See , e.g. , Doc. 10 at 6 (citing to Exhibits C and F to Plaintiff's request for judicial notice). Pursuant to Federal Rule of Evidence 201(b)(2), the Court may take judicial notice of an administrative record as facts not subject to a reasonable dispute because they can be accurately and readily determined from a source whose accuracy cannot reasonably be questioned. United States v. Wilson , 631 F.2d 118, 119 (9th Cir. 1980) ("[A] court may take judicial notice of ... the records of an inferior court."). The Court therefore grants Plaintiff's request and hereby takes judicial notice of the submitted documents.

III. BACKGROUND

Plaintiff, who is 12 years old, has an intellectual disability, autism, and a speech and language disorder. Doc. 5–1 at 5. Plaintiff's education goals and behavioral intervention plan address the following behaviors:

Hand and object mouthing of substances, including non-edible objects; disruptions including throwing items, elopement, flopping down on the floor, hitting, reaching inside his pants, spitting, and grabbing with force the clothing of others.

Id . Plaintiff has had an IEP since September 7, 2007. Id . While Plaintiff was attending school at Torrance, his mother passed away. Id . Plaintiff's father decided to move Plaintiff to Delano, where Plaintiff's grandmother and uncle live and can provide additional childcare support; Doc. 5–7 at 2 (Declaration of Sean Frankel). Id . Plaintiff's last IEPs, which were agreed upon and implemented before he left Torrance, were dated May 5 and June 3, 2016. Id . These IEPs provided Plaintiff with a 1:1 aide for 1950 minutes per week and with supervision for 720 minutes per month from a Board Certified Behavior Analyst ("BCBA"). Id . Both the aide and the BCBA came from a certified non-public agency. Id . at 6.

Plaintiff enrolled in Delano Union School District on June 17, 2016. Id . Defendant held IEP meetings on July 13 and August 5, 2016. Id . Defendant's proposed IEP reduced Plaintiff's BCBA supervision to 60 minutes per month and eliminated the 1:1 aide entirely. Id . Defendant's proposed BCBA supervision would not be provided by a certified non-public agency. Id . The IEP offered by Defendant was a 30–day interim plan, at the close of which Defendant intended to either adopt the Torrance IEP or to prepare a new IEP. Doc. 10 at 2. Plaintiff's family argued that the reduction in services would harm Plaintiff, and asked that Defendant continue to provide the services previously in place. Doc. 5–1 at 6. After rejecting Defendant's proposed IEP, Plaintiff re-enrolled at Torrance. Doc. 10 at 2. Plaintiff has attended Calle Mayor School in Torrance since the start of the 2016–2017 school year four days per week. Doc. 5–5 at 7 (Declaration of Jason Kashwer); Doc. 10 at 8. Plaintiff lives with his grandmother in Delano Thursday through Sunday. Doc. 5–7 at 2–3. Plaintiff's father intends that Plaintiff live with the relative and attend school in Delano full time as soon as Defendant provides services similar to those outlined in the Torrance IEP. Id .

Plaintiff filed for a due process hearing with the OAH on October 13, 2016. Doc. 5–1 at 6. The due process hearing is scheduled to begin on February 21, 2017. Doc. 1 at 7. Plaintiff filed a motion for stay-put on October 26, 2016, which the Administrative Law Judge ("ALJ") denied on November 11. Doc. 5–1 at 6. The ALJ found that Plaintiff's reliance on T.B. v. San Diego Unified School District , 795 F.3d 1067 (9th Cir. 2015), to support the proposition that the stay-put provision applies, was mistaken as T.B. is factually distinguishable from this matter. Doc. 5–11 at 2 (ALJ Decision). Additionally, the ALJ found that Plaintiff otherwise cited no persuasive authority in support of his position, while Defendant's position was consistent with the federal Department of Education's decision not to address stay-put in the context of inter-year transfers in its 2006 regulations. Id . at 3. The ALJ therefore concluded that Plaintiff was not entitled to stay-put. Id .

On November 28, 2016, Plaintiff filed with this Court a complaint seeking declaratory and injunctive relief from the stay-put decision. Doc. 1. On November 29, 2016, Plaintiff filed the instant motion. Doc. 5. On December 6, 2016, Defendant filed its opposition. Doc. 10. On that same day, the Court issued an order granting Plaintiff leave to file a reply. Doc. 11. Plaintiff filed his reply on December 12, 2016. Doc. 12. On December 15, 2016, Defendant filed a motion seeking permission to file additional evidence in support of its opposition, or, in the alternative, seeking oral argument. Doc. 13.²

Plaintiff seeks an injunction compelling Defendant to provide him with 1950 minutes per week of 1:1 aide services and 720 minutes per month of BCBA supervision by a non-public agency. Doc. 5 at 2. Plaintiff also requests an order compelling Defendant to implement his last agreed to and implemented IEP. Id .

IV. STANDARD OF DECISION

The IDEA provides federal funds to help state and local agencies educate children with disabilities while conditioning the funds on compliance with specific goals and procedures, primarily the obligation to provide a free appropriate public education ("FAPE"). 20 U.S.C. § 1412 ; Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 179–80, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (describing the genesis and primary provisions of IDEA). Under the IDEA, "[a]ny party aggrieved by the findings and decision made [by the hearings officer] ... shall have the right to bring a civil action with respect to the complaint presented ... which action may be brought ... in a district court of the United States." 20 U.S.C. § 1415(i)(2)(A). Among the procedures mandated by IDEA is the development of a written IEP for each child with a disability. 20 U.S.C. § 1401. The IEP is crafted to meet the unique needs of each child with a disability by a team that includes a representative of the local educational agency, the child's teacher and parents, and, when appropriate, the child. 20 U.S.C. § 1414(a)(5).

The stay-put provision of the IDEA mandates that, while a due process challenge is pending, a student is entitled to remain in his or her "then-current educational placement" unless the parents and the state or local education agency otherwise agree. 20 U.S.C. § 1415(j). A stay-put order issued at the administrative level is a collateral order subject to interlocutory appeal. A.D. ex rel. L.D. v. Hawaii Dept. of Educ. , 727 F.3d 911, 913 (2013). The term "then-current educational placement" is not defined in the IDEA itself or in its legislative history. N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dep't of Educ. , 600 F.3d 1104, 1114 (9th Cir. 2010). The Ninth Circuit has interpreted "then-current educational placement" to mean "the placement set forth in the child's last implemented IEP." L.M. ex rel. Sam M. v. Capistrano Unified Sch. Dist. , 556 F.3d 900, 902 (9th Cir. 2009). "Although the statute refers to ‘educational placement,’ not to ‘IEP,’ the purpose of an IEP is to embody the services and educational placement or placements that are planned for the child." N.E. ex rel. C.E. v. Seattle Sch. Dist. , 842 F.3d 1093, 1096 (9th Cir. 2016). When the child's last implemented IEP cannot be implemented due to a change in circumstances, stay-put requires that the student receive a placement that, as closely as possible, replicates the last placement. Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified Sch. Dist. , 353 F.Supp.2d 1083, 1086 (C.D. Cal. 2005).

The IDEA and its enabling regulations are silent as to whether a child who transfers to a new district between school years is entitled to stay-put. According to federal Department of Education regulations, "[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP." 34 C.F.R. § 300.323(a). If a child transfers to and enrolls in a new different public agency within a state during a school year, the new public agency "must provide FAPE to the child (including services comparable to those described in the child's IEP from the previous public agency)" until the new public agency adopts the child's prior IEP or "develops, adopts, and implements a new IEP." 34 C.F.R. § 300.323(e)...