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L.M. v. Capistrano Unified School District

February 13, 2009

L. M., A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM, SAM M. AND MARIETTE M.; SAM M., ON HIS OWN BEHALF; MARIETTE M., ON HER OWN BEHALF, PLAINTIFFS-APPELLEES,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT, DEFENDANT-APPELLANT.
L. M., A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM, SAM M. AND MARIETTE M.; SAM M., ON HIS OWN BEHALF; MARIETTE M., ON HER OWN BEHALF, PLAINTIFFS-APPELLEES,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT, DEFENDANT-APPELLANT.
L. M., A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM, SAM M. AND MARIETTE M.; SAM M., ON HIS OWN BEHALF; MARIETTE M., ON HER OWN BEHALF, PLAINTIFFS-APPELLANTS,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT, DEFENDANT-APPELLEE.
L. M., A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM, SAM M. AND MARIETTE M.; SAM M., ON HIS OWN BEHALF; MARIETTE M., ON HER OWN BEHALF, PLAINTIFFS-APPELLEES,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Audrey B. Collins, District Judge, Presiding D.C. No. CV-06-03049-ABC

The opinion of the court was delivered by: Tallman, Circuit Judge

FOR PUBLICATION

Argued and Submitted June 3, 2008-Pasadena, California

Filed August 19, 2008; Amended February 13, 2009

Before: Diarmuid F. O'Scannlain and Richard C. Tallman, Circuit Judges, and James K. Singleton,*fn1 Senior District Judge.

OPINION

L.M. is the autistic child of two loving parents, Samuel and Mariette (collectively "Parents"), who have spared no expense to obtain private in-home treatment for their developmentally disabled son. The local Capistrano Unified School District ("District") balked at the idea of continuing the in-home educational plan at public expense and offered an alternative plan. The matter ended up before an administrative law judge in California who conducted a four-day evidentiary hearing to resolve the dispute, ultimately ruling in favor of the District.

We must decide whether the district court clearly erred by reversing the state administrative agency's finding that a procedural violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, amounted to harmless error. The answer depends on whether the District significantly restricted Parents' right to participate in their disabled child's Individual Educational Program ("IEP") by limiting Parents' classroom observational opportunities to twenty minutes, when the District observed the child in his private education program for up to three hours. The district court had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3). We have appellate jurisdiction under 28 U.S.C. § 1291.

In reversing the administrative agency, the district court failed to properly consider whether Parents' right to participate was "significantly affected." In other words, the district court failed to consider whether the District's policy of limiting Parents' classroom observational opportunities to twenty minutes was harmless because Parents nevertheless had a full opportunity to participate in the process to fashion an appropriate educational plan for L.M. with help from an informed and knowledgeable expert. There is no evidence to support a finding that Parents' right to participate was significantly affected. We therefore reverse the district court's order requiring the District to reimburse Parents for the cost of in-home services and vacate its subsequent award of attorneys' fees to Parents as the prevailing party. We also affirm the district court's denial of a "stay put" order requiring the District to reimburse Parents for continuing education expenses beyond that covered in its original order.

I.

In July 2004, a pediatric neurologist diagnosed L.M., then two and one-half years old, with autism. L.M. began receiving early intervention services from the Regional Center of Orange County in late August 2004. Through the early intervention services, L.M. received speech-language therapy, occupational therapy, and started a one-to-one in-home behavioral program. Autism Comprehensive Educational Services ("ACES"), a non-public agency, administered L.M.'s private behavioral program. In December 2004, L.M.'s parents began paying ACES for a few additional hours of one-toone services per week, eventually increasing his one-to-one services to twenty-five hours per week.

In November 2004, Parents met with the District's school psychologist Luisa Martinez to begin discussing L.M.'s transition to the District on his third birthday. In December and January, the District conducted several observations of L.M. during his in-home education services. On January 10, 2005, L.M.'s IEP team met to discuss L.M.'s assessment results and initial placement in the District.*fn2 The District offered to place L.M. in the Palisades Elementary School, provide individual intensive behavior instruction for four hours per week, speech-language therapy for two thirty-minute sessions per week, occupational therapy for thirty minutes per week, and extended school year services. Parents attended the meeting, asked questions, but did not indicate whether they approved of the District's proposed program.

L.M. turned three-years-old on January 22, 2005, but did not begin attending school in the District. Parents continued to fund the one-to-one services provided from ACES. After the initial IEP meeting, Parents twice visited the proposed school, once with the principal and once with Dr. Melanie Lenington, a licensed psychologist. Dr. Lenington asked to observe the proposed program for a continuous ninety-minute period, but was limited to twenty-minute increments because of a district-wide policy.*fn3 Dr. Lenington never returned to conduct further observations after her initial twenty-minute visit.

In February and March 2005, District psychologist Martinez attempted to contact Parents to discuss the IEP offer. The Parents did not respond, and in March 2005, they filed a request for a due process hearing pursuant to 20 U.S.C. § 1415(f), alleging that the proposed IEP offer denied L.M. a free appropriate public education ("FAPE").*fn4 In response to the due process request, on April 7, 2005, the District sent a letter to Parents offering additional services including more tutoring in the home and a formal transition plan.

In June 2005, the IEP team met for a second IEP meeting. During this meeting L.M.'s father, Samuel, asked several pointed questions regarding the research supporting the District's program. After some discussion, District staff objected to Samuel's questions because they felt interrogated. When District staff attempted to change the subject to topics specific to L.M., Samuel objected, and stated that the last two minutes of the meeting should be used to talk about ...


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