Butte School District No. 1 v. C.S. ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 27 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BUTTE SCHOOL DISTRICT NO. 1, No. 19-35134
Plaintiff-Appellee, D.C. No. 2:14-cv-00060-SEH
v.
MEMORANDUM*
C.S.; STUART MCCARVEL, in his
capacity as originator of the C.S. due
process complaint,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted May 11, 2020
Portland, Oregon
Before: BYBEE and VANDYKE, Circuit Judges, and CARDONE,** District
Judge.
Appellants C.S. and his care giver, Stuart McCarvel, challenge the district
court’s decision reversing a hearing officer’s conclusion that appellee Butte School
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
District No. 1 (BSD) failed to provide C.S. a free appropriate public education
(FAPE) under the Individuals with Disabilities Education Improvement Act of
2007 (IDEA) during his junior year of high school, but did provide a FAPE during
his senior year. The district court held that C.S. was not denied a FAPE during
either school year. C.S. and McCarvel also challenge several evidentiary rulings
made by the district court before and during the four-day evidentiary hearing. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are
familiar with the facts of this case, we do not lay them out here except where
necessary.
“We review the district court’s findings of fact for clear error even when
they are based on the written record of administrative proceedings.” Amanda J. ex
rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). Findings
of fact are “clearly erroneous when the evidence in the record supports the finding
but the reviewing court is left with a definite and firm conviction that a mistake has
been committed.” Id. (internal quotation marks omitted). “We review de novo the
question of whether” a school district provided a FAPE. Id.
As the main method of implementing the policy goals of the IDEA, a
student’s individualized education plan (IEP) “must be drafted in compliance with
a detailed set of procedures.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.
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Dist. RE-1, 137 S. Ct. 988, 994 (2017). Procedural compliance “is essential to
ensuring that every eligible child receives a FAPE.” Amanda J., 267 F.3d at 891.
Not all violations of IDEA’s procedures, however, deny a student FAPE—they do
so only if they “impeded the child’s right to a [FAPE]; significantly impeded the
parents’ opportunity to participate in the decisionmaking process regarding the
provision of [FAPE] . . . ; or caused a deprivation of educational benefits.” 20
U.S.C. § 1415(f)(3)(E).
1. C.S. first contends that BSD failed to follow IDEA’s procedures by not
evaluating him for specific learning disabilities (SLDs), despite staff suspecting
that he had SLDs in certain academic areas. See Timothy O. v. Paso Robles
Unified Sch. Dist., 822 F.3d 1105, 1126 (9th Cir. 2016) (holding that failure to
evaluate a child when required is a procedural violation that deprives the child of
FAPE). But there was no clear error in the district court’s holding that BSD
attempted to get C.S.’s mother’s approval to further evaluate and classify C.S. and
C.S.’s mother resisted. While schools ordinarily “cannot eschew [their]
affirmative duties under the IDEA by blaming the parents,” the IDEA states that
when parents do not consent to evaluations, schools do not violate the IDEA by not
evaluating the student. Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1045 (9th
Cir. 2013); see also 20 U.S.C. § 1414(a)(1)(D)(ii). Moreover, even if the school
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procedurally erred in not engaging in further evaluations, the record shows that
C.S. received specialized services in all SLD areas during both at-issue school
years, making any error harmless.
2. C.S. next argues that BSD did not provide FAPE because it failed to
adequately assess C.S.’s behaviors and develop appropriate, individualized
behavioral-intervention plans. But C.S. misreads the IDEA’s requirements for
students with behavioral issues by contending that BSD was required to seek out a
comprehensive Functional Behavioral Assessment (FBA) performed by a licensed
individual. The IDEA only requires an FBA when a child is removed from his
current placement due to problem behaviors. 20 U.S.C. § 1415(k)(1)(D)(ii). For
other students with disability-related behavioral needs, an IEP need only include
(1) “measurable annual goals” developed to “enable the child to be involved in and
make progress in the general education curriculum;” and (2) how “progress toward
meeting the annual goals . . . will be measured.” 34 C.F.R. § 300.320(a)(2)(i),
(3)(i). Our concern is whether the IEP and its underlying behavioral analysis was
reasonable, not whether it was ideal, see Endrew F., 137 S. Ct. at 999, and C.S. is
arguing for the ideal here. The record is replete with evidence showing that BSD
staff and C.S.’s IEP team considered C.S.’s problem behaviors and took steps to
correct them, including adopting behavioral-intervention plans. And C.S.’s IEPs
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contained measurable annual behavioral goals and specified how these goals would
be measured. No more was required of BSD, so C.S. fails to show how he was
denied FAPE due to BSD’s behavioral programming.
3. C.S. next argues that BSD procedurally erred in its provision of “transition
services.” For each IEP in effect after a child turns 16, the IEP must include
“[a]ppropriate postsecondary goals based upon age appropriate transition
assessments related to training, education, employment, and, where appropriate,
independent living skills,” and “[t]he transition services . . . needed to assist the
child in reaching those goals.” 34 C.F.R. § 300.320(b)(1)–(2). These services
must be designed in a “results-oriented process, that is focused on improving the
academic and functional achievement of the child” to enable them to move from
school to post-school activities, “including postsecondary education, vocational
education, integrated employment . . . , continuing and adult education, adult
services, independent living, or community participation.” 20 U.S.C.
§ 1401(34)(A); see also 34 C.F.R. § 300.43(a)(1).
The record is clear that BSD failed to conduct any age-appropriate transition
assessments for C.S. when developing the 2011–12 school year’s IEP. Failure to
do so led to C.S.’s IEP containing goals that were not specific to C.S.’s needs.
BSD therefore committed a procedural error in this year.
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BSD assessed C.S. in the 2012–13 school year, and the assessment was used
by his IEP team in developing measurable goals and outlining services that would
help meet those goals. But C.S. contends that his IEP that year was still inadequate
because additional assessments were required.
However, taking into consideration the inadequate IEP in the 2011–12
school year and assuming more assessments were required in the 2012–13 school
year, the record is clear that C.S. received a host of transition services during both
school years. Procedural errors only operate to deny FAPE when they deny an
educational benefit, 20 U.S.C. § 1415(f)(3)(E)(ii), and the record supports the
district court’s finding that, even assuming an error, C.S. still benefitted from a
wide variety of transition services in both at-issue school years.
4. C.S.’s last alleged deviation from the IDEA’s procedural safeguards arises
out of BSD seeking to have Mary Jo Mahoney instead of McCarvel appointed as
C.S.’s educational representative. When a student with a disability reaches the age
of majority, “all . . . rights accorded to parents under” the IDEA transfer to the
student. 20 U.S.C. § 1415(m)(1)(B). But if the student “has not been determined
to be incompetent, but . . . is determined not to have the ability to provide informed
consent with respect to” his or her education program, a state must “establish
procedures for appointing the parent of the child, or if the parent is not available,
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another appropriate individual” to represent the student’s educational interests. Id.
§ 1415(m)(2).
C.S. was unable to provide informed consent about his educational program,
so BSD was right to seek appointment of an educational representative. Because
there were no established procedures in place in Montana at the time, the Office of
Public Instruction (OPI) directed BSD to seek appointment of a decisionmaker
using the state’s surrogate-parent procedure. BSD sought—and
won—appointment of Mahoney. But what OPI and BSD missed was the directive
in the IDEA to attempt to appoint a parent first. Only if a parent is unavailable
should “another appropriate individual” be appointed. Id.
When C.S. challenged Mahoney’s appointment in state court, he prevailed.
In a published opinion, the Montana Supreme Court held that McCarvel qualified
as a parent under the applicable laws and reversed Mahoney’s appointment. See In
re C.S., 320 P.3d 981, 985–86 (Mont. 2014). The district court took judicial notice
of the opinion but held the opposite: that McCarvel had no right to appointment
and so there was no procedural error in appointing Mahoney. The district court did
so without a discussion of the Montana Supreme Court’s opinion or the provisions
of the IDEA that give foster parents the same rights as natural parents. This is
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clear error by the district court. There was no reason not to give full faith and
credit to the Montana Supreme Court’s opinion.
BSD should have sought appointment of McCarvel because, as C.S.’s foster
parent, he had the same rights as C.S.’s natural parents. 20 U.S.C. § 1401(23)(A).
And under 20 U.S.C. § 1415(m)(2), schools should only seek appointment of
someone other than a parent if the parent is unavailable. But this procedural error
by BSD is harmless unless it significantly impacted McCarvel’s “opportunity to
participate in the IEP formulation process.” Amanda J., 267 F.3d at 892. And
here, the record shows that McCarvel was able to meaningfully participate the
same after Mahoney’s appointment as he had before. Accordingly, the procedural
error of not seeking McCarvel’s appointment as C.S.’s representative was
harmless.
5. In addition to challenging BSD’s procedures in developing and
implementing his IEP, C.S. contends that the district court made multiple errors
before and during the evidentiary hearing that, individually and cumulatively,
merit reversal. “Evidentiary rulings are reviewed for an abuse of discretion and
should not be reversed absent some prejudice.” Defs. of Wildlife v. Bernal, 204
F.3d 920, 927–28 (9th Cir. 2000).
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First, the district court did not abuse its discretion in allowing BSD’s
witnesses to testify. Under the IDEA, if a party brings a civil action in the district
court challenging a hearing officer’s administrative ruling, the district court is not
limited to the administrative record. Additional evidence may be submitted upon a
party’s request. 20 U.S.C. § 1415(i)(2)(C)(ii). The scope of this evidence is within
the trial court’s discretion, but it must not allow “additional evidence” to “change
the character of the hearing from one of review to a trial de novo.” Ojai Unified
Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993) (citation omitted). BSD’s
witnesses may have testified at the administrative hearing, but their testimony
before the district court was not mere repetition of that testimony. Accordingly, it
was not an abuse of discretion to allow BSD to present witnesses to rebut C.S.’s
new expert witnesses.
6. Next, C.S. contends that it was an abuse of discretion for the district court to
allow BSD’s proposed experts to testify as expert witnesses. But any error in
allowing these individuals to testify as experts despite a lack of qualifications was
harmless. See Bernal, 204 F.3d at 927–28. The district court does not appear to
have actually considered these individuals as expert witnesses or given any weight
to their opinions. And given the lengthy testimony and the very few opinions
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rendered, even if these witnesses had not been allowed to testify to opinions, they
still would have been able to give substantially the same testimony.
7. C.S. also argues that the district court abused its discretion by giving no
weight to the testimony of Dr. Gentry, C.S.’s expert witness in the administrative
hearing. C.S. contends that the district court should have applied the Montana
Rules of Evidence instead of the Federal Rules of Evidence, but we need not
decide which rules apply because they do not differ on the question that was
dispositive to the district court—whether Dr. Gentry was qualified to testify as an
expert. The Montana Supreme Court has rejected the federal standard for
assessing the reliability of the reasoning and methodology underlying a proposed
expert’s opinion, not the generally accepted standards for assessing a proposed
expert’s qualifications. See Hulse v. State, 961 P.2d 75, 89–91 (Mont. 1998).
Montana’s rules still require a proposed expert to “be qualified as an expert to give
an opinion in the particular area of the testimony.” Id. at 89 (citation omitted).
The district court’s decision here came down to doubts about Dr. Gentry’s
qualifications, not his methods, so the difference between the state and federal
rules is immaterial.
It was not an abuse of discretion to sustain BSD’s objection to Dr. Gentry’s
designation as an expert. While Dr. Gentry is well educated, the record supports
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the district court’s findings that he lacked certain qualifications important to his
ability to give opinions on whether C.S.’s IEPs were adequate. But regardless,
C.S. was not prejudiced because he was able to present extensive testimony from
two experts that covered substantially similar information.
8. C.S. also argues that the district court abused its discretion in refusing to
admit two exhibits for impeachment purposes. But any error related to these
documents was harmless. Exhibit 9 was eventually admitted as non-hearsay and
C.S. appeared to have gotten the answer that Exhibit 20-B was designed to induce
from the witness without the document being admitted. Accordingly, the failure to
admit these documents was not reversible error.
9. Finally, C.S. argues that the neuropsychological evaluation reports created
by one of his experts should have been admitted. Setting aside the admissibility of
the documents, C.S. was able to fully question this expert at the hearing about the
information contained in the reports, including tests performed, diagnostic
conclusions, and the impact of C.S.’s conditions on his education. Because the
pertinent medical information contained in the reports became part of the record
via the expert witness’s testimony, there was no prejudice to the reports not being
admitted.
AFFIRMED.
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