S. H. v. Tustin Unified School District , 682 F. App'x 559 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
S. H., a minor, by and through her No. 15-55701
Guardian Ad Litem Stephen Hollister;
STEPHEN HOLLISTER; LEAPHIDA D.C. No.
HOLLISTER, 8:14-cv-00413-CJC-AN
Plaintiffs-Appellants,
MEMORANDUM*
v.
TUSTIN UNIFIED SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted February 10, 2017
Pasadena, California
Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
Plaintiffs-Appellants (“Appellants”) are the parents of a special education
student, S.H., who suffers from Dravets syndrome and who resides in the Tustin
Unified School District (“Tustin”). Tustin proposed, pursuant to the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400 et seq., changing S.H.’s
education placement from a program operated by the Orange County Department
of Education to a Tustin-run special day class. Tustin made its placement offer on
March 11, 2013, following the last of six triennial Individualized Education
Program (“IEP”) meetings, but Appellants refused to consent to Tustin’s placement
offer. Tustin and Appellants separately filed due process actions. An
Administrative Law Judge (“ALJ”) for the California Office of Administrative
Hearings consolidated the cases and held hearings over six days, receiving
evidence and hearing testimony from twelve witnesses involved in S.H.’s IEP
process. The ALJ ultimately held that Tustin would provide S.H. with a free
appropriate public education (“FAPE”) and therefore Tustin could go forward with
the placement. The district court granted summary judgment in favor of Tustin.
The parents appeal. Appellants claim first that Tustin failed to adequately involve
Appellants in arriving at the placement decision and failed to provide procedurally
compliant Prior Written Notice of the decision. Second, Appellants claim that
Tustin denied S.H. a FAPE by predetermining S.H.’s placement before the final
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IEP meeting. We need not reach Tustin’s claim that an earlier settlement has
preclusive effect. The appeal is not moot. See Sacramento City Unified Sch. Dist.
v. Rachel H., 14 F.3d 1398, 1403 (9th Cir. 1994). We afford particular deference
to the ALJ decision because it was thorough and careful. R.B. ex rel. F.B. v. Napa
Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007).
The record clearly shows that Appellants were provided adequate—and
arguably extraordinary—opportunities to participate in the placement decision.
Appellants visited the proposed placement multiple times, before and after the
placement decision. And at least one of the Appellants attended and participated in
every IEP meeting, effecting many changes to the plan. Just because Appellants
and a number of IEP team members did not actually voice concerns over the
placement at the March 11 meeting does not mean that Appellants did not have the
opportunity or information necessary to do so. See Doug C. v. Hawaii Dep't of
Educ., 720 F.3d 1038, 1044 (9th Cir. 2013) (“The public agency responsible for
providing education to children with disabilities is required to take steps to ensure
that one or both of the parents of a child with a disability are present at each IEP
meeting or are afforded an opportunity to participate . . . .”) (internal citations and
quotations omitted); cf. W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23,
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Missoula, Mont., 960 F.2d 1479, 1484–85 (9th Cir. 1992) (finding a denial of
FAPE where required participants were not actually present for IEP proceedings).
We also find that even if Tustin did not provide compliant Prior Written
Notice, any error was harmless. See Doug C., 720 F.3d at 1043. The parents were
already on notice of the placement decision, and the extensive IEP notes and
Tustin’s due process complaint provide “a clear record that will do much to
eliminate troublesome factual disputes many years later about when [and] what
placements were offered, and what additional educational assistance was offered to
supplement a placement, if any.” See Union Sch. Dist. v. Smith, 15 F.3d 1519,
1526 (9th Cir. 1994).
The ALJ concluded that Tustin did not unlawfully predetermine S.H.’s
placement. This finding is supported by the evidence, including testimony that
Tustin was open-minded in regard to the placement offer and all other decisions
during the IEP. See JG v. Douglas Cty. Sch. Dist., 552 F.3d 786, 801 n.10 (9th Cir.
2008) (concluding that a district’s circulation of draft proposals prior to IEP
discussions does not, without some other evidence, amount to a “take it or leave it”
position).
The district court did not err in granting summary judgment in favor of
Tustin.
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AFFIRMED.
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