Steven R.F. by and through Fernandez v. Harrison Sch. Dist. No. 2, 18-1327

• Decision Date: 28 May 2019
• Docket Number: No. 18-1327,18-1327
• Citation: 924 F.3d 1309
• Parties: STEVEN R.F., a minor BY AND THROUGH his mother Carrie FERNANDEZ, Plaintiff-Appellee, v. HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

924 F.3d 1309

STEVEN R.F., a minor BY AND THROUGH his mother Carrie FERNANDEZ, Plaintiff-Appellee,
v.
HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant - Appellant.

No. 18-1327

United States Court of Appeals, Tenth Circuit.

FILED May 28, 2019
As Revised June 12, 2019

John R. Stanek, Anderson, Dude, and Lebel, Colorado Springs, Colorado (William K. Dude, Anderson, Dude, and Lebel, Colorado Springs, Colorado, and W. Stuart Stuller, Caplan & Ernest, LLP, Boulder, Colorado, with him on the briefs), appearing for Appellant.

Michael C. Cook, Cook Varriano, P.C., Colorado Springs, Colorado, appearing for Appellee.

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.

BRISCOE, Circuit Judge.

In this appeal, Defendant- Appellant Harrison School District No. 2 asks us to reverse the district court's ruling that it violated the Individuals with Disabilities Education Act (IDEA) by failing to provide Plaintiff-Appellee Steven R.F. with a free appropriate public education. Because we conclude that the case is moot, we dismiss this appeal, vacate the district court's ruling, and remand with instructions to dismiss as moot.

I

The IDEA provides federal funds to states for educating children with disabilities, guaranteeing disabled children between the ages of three and twenty-one access to a free appropriate public education (FAPE). 20 U.S.C. §§ 1400(d), 1412(a)(1). A FAPE "emphasizes special education and related services designed to meet [the child's] unique needs." Id. § 1400(d). A child's individualized education program (IEP) governs how a school will provide him or her a FAPE. See id. § 1414(d)(1)(A). The IEP is a written statement developed in a meeting attended by the student's parents, teacher, and a special education professional that summarizes the student's abilities, outlines goals for the student's education, specifies

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the services the student will receive to achieve those goals, and establishes criteria to evaluate the student's progress. Id. § 1414(d)(1).

The IDEA also requires state and local educational agencies receiving funding under the Act to "establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision" of a FAPE. Id. § 1415(a); see also Honig v. Doe, 484 U.S. 305, 311–12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). For example, the IDEA requires that a child's parents be notified by the school district of any proposed change to the child's educational placement. 20 U.S.C. § 1415(b)(3). It also requires that the parents be permitted to participate in discussions relating to their child's evaluation and education. Id. § 1414(d)(1)(B)(i). And it requires states to allow parents the opportunity to bring a complaint about "any matter relating to the identification, evaluation, or educational placement of [their] child, or the provision of a [FAPE] to such child." Id. § 1415(b)(6).

II

Steven R.F. is a fourteen-year-old boy with severe autism. In 2013, the District agreed to place Steven at the Alpine Autism Center, a private out-of-district facility in Colorado Springs.

In 2014, the District proposed to move Steven from Alpine to a public school called the School of Excellence (SOE) for the 2014–2015 schoolyear. Steven's mother, Carrie Fernandez (Mother), objected and filed a state complaint asserting various IDEA violations. After an investigation, the State Complaint Officer (SCO) agreed with Mother and issued a written decision (2014 SCO Order). As a remedy, the SCO ordered, among other things, that the District could not change Steven's placement until: (1) staff members from any new placement "proposed by" the District "have observed [Steven] ... at [Alpine] to understand the nature of [his] educational and behavioral functioning" and (2) the District "convenes an IEP meeting, facilitated by a neutral facilitator (not employed by the School District) ... and develops an IEP that includes a description of placement sufficient to allow [Mother] to understand what is being proposed." App., Vol. II at 618. Steven remained at Alpine for the 2014–2015 and 2015–2016 schoolyears.

On March 29, 2016, and April 5, 2016, the District held Steven's IEP meeting for the 2016–2017 schoolyear. The IEP meeting was facilitated by the District's school psychologist, Michelle McFall. Toward the end of the meeting, after agreeing on required aspects of the IEP, the attendants discussed what facility Steven would attend. Amy Lloyd, the District's special education coordinator, proposed three alternatives: Roundup Fellowship, Alpine, and the SOE. The team decided on the SOE, over Mother's objection. At the time of the IEP meeting, no staff members from either the SOE or Roundup had observed Steven at Alpine.

After the meeting, McFall prepared a "Prior Written Notice of Special Education Action" summarizing the IEP Team's discussions and decisions. The notice identified the SOE as Steven's placement for 2016–2017, but did not identify which program within the SOE Steven would attend.

The SOE is a public school operated by Pikes Peak Board of Cooperative Educational Services.

924 F.3d 1312

The SOE has two programs relevant in this case: the Communication and Language program (COLA) and the Learning Independence by Educating Responsible Trustworthy Youth program (LIBERTY). COLA is designed for students who have significant behavior issues and who are largely unable to work independently. LIBERTY is designed for students with either an autism spectrum diagnosis or a dual diagnosis and who are generally able to express their wants and needs and are able to work in small groups. The District believed that either program could have implemented Steven's IEP.

On May 5, 2016, Mother filed another state complaint alleging that the District violated the 2014 SCO Order by changing Steven's educational placement and by not utilizing a neutral facilitator for his 2016 IEP meeting. She also asserted that the District's placement decision of the SOE was not based on Steven's individual needs, that the District wrongfully predetermined Steven's placement, and that the District did not make a written offer of educational placement. After an investigation, the SCO ruled, as relevant, that the District had violated the 2014 SCO Order by not utilizing a neutral facilitator for Steven's 2016 IEP meeting, and that the District's decision to move Steven to the SOE was predetermined and not based on Steven's individual needs.

The District challenged the SCO decision by filing a due process complaint with the Colorado Office of Administrative Courts pursuant to 20 U.S.C. § 1415(f). The District sought a determination that its proposal to transfer Steven to the SOE for the 2016–2017 schoolyear was an appropriate offer of FAPE. The Administrative Law Judge deciding the complaint concluded that the "District made an offer of FAPE, and that any procedural violations that may have occurred did not deprive [Steven] of FAPE or educational benefit, and did not deprive [Mother] of her right to meaningfully participate in the decision-making process."

Mother appealed the ALJ's determination to federal district court pursuant to 20 U.S.C. §§ 1415(i)(2)(A) and (3)(A) and 34 C.F.R. § 300.516(b) and asked the district court to find that the 2016–2017 IEP denied Steven the FAPE to which he is entitled. She asserted that the District violated the IDEA by: (1) not complying with the terms of the 2014 SCO Order; (2) not identifying Steven's proposed educational placement (COLA or LIBERTY) in his 2016–2017 IEP; (3) predetermining Steven's placement in the SOE; and (4) creating an IEP not based on Steven's individual needs.¹ After merits briefing, the district court concluded that the District had violated the 2014 SCO Order and various procedural protections within the IDEA, and that these violations amounted to the denial of a FAPE. Specifically, the district court ruled, as regards Steven's 2016 IEP: (1) the District failed to include a specific offer of educational placement; (2) the District failed to comply with the requirements of the 2014 SCO Order,² which were designed to

924 F.3d 1313

protect Mother's right to a "fair IEP meeting," which includes "a clear offer of educational placement" and "meaningful participation in the IEP process," App., Vol. VII at 1801; and (3) taken together, those failures amounted to the denial of a FAPE. The district court ordered the District to reimburse Mother for Steven's tuition at Alpine for 2016–2017 and awarded her attorney's fees as the prevailing party.

III

Mother argues that the appeal is moot, and we must address that issue first because Article III limits courts to adjudicating "actual, ongoing controversies." Honig, 484 U.S. at 317, 108 S.Ct. 592. To satisfy the case-or-controversy requirement of Article III, "the parties ‘must continue to have a personal stake in the outcome of the lawsuit’ throughout the various stages of litigation." Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1123...