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In re Department of Education

United States District Court, D. Hawaii

December 15, 2014

RIA L., by and through her Parent, RITA L., Defendants

For Department of Education, State of Hawaii, Plaintiff: Carter K. Siu, Holly T. Shikada, LEAD ATTORNEYS, Department of the Attorney General, Education Division, Honolulu, HI.

For Ria L., by and through her Parent, Rita L., Rita L., Defendants: Susan K. Dorsey, LEAD ATTORNEY, Davis Levin Livingston Grande, Honolulu, HI.


Derrick K. Watson, United States District Judge.

This is the second appeal in Ria L.'s (" Student") case. At the conclusion of the first appeal to this Court, Judge Ezra issued an Order Vacating and Remanding Decision of the Administrative Hearings Officer (" AHO"), instructing the State to determine whether the allegations of abuse of Student resulted in the denial of a free appropriate public education (" FAPE"). DOE v. Ria L., et al., CV No. 12-00007 HG-KSC, Dkt. No. 27, (D. Haw. July 30, 2012). On December 27, 2013, the AHO found in the affirmative, issuing Findings of Fact, Conclusions of Law and Decision (" Decision"), which held, among other things, that Student was abused and that such abuse resulted in the denial of FAPE. The Department of Education, State of Hawai'i (" DOE") now appeals that December 27, 2013 Decision. The Court affirms the AHO's determination that it was permissible to take additional evidence on remand and affirms the AHO's decision denying the State's recusal request. However, because the AHO's key underlying determinations of credibility are conclusory and provide no rationale or explanation for this Court to meaningfully review on appeal, the Court remands again with instructions to elaborate and enumerate specific reasons, based on evidence in the record, supporting the AHO's credibility assessments.


This is an appeal of the AHO's decision on remand following District Judge Ezra's July 31, 2012 order (" Remand Order"). DOE v. Ria L., et al., CV No. 12-00007 HG-KSC, Dkt. No. 27 (D. Haw. July 31, 2012). The extensive factual history prior to Judge Ezra's remand and this appeal can be found in that Remand Order and is not repeated here.

Student was 11 years old at the time of the AHO's decision on remand. Since February 2008, she has been eligible to receive special education and related services pursuant to the IDEA under the category of intellectual disability (formerly known as mental retardation). Student attended Kipapa Elementary School (" Home School") for preschool, kindergarten, and grades 1 and 2, up until February 2011 when Parent removed Student from the Home School, and Student began attending Autism Behavior Consulting Group, Inc. Approximately one month later, Student, through her Parent, requested an administrative hearing, alleging that the DOE violated the IDEA by denying her FAPE. Parent made numerous allegations that were disposed of by Judge Ezra and are not at issue here. Relevant here, Parent alleged that Student had been subject to physical, verbal, and psychological abuse and punitive discipline in the classroom at the Home School.

Following a six-day administrative hearing, the Hearings Officer found that procedural and substantive errors in Student's 2009 and 2010 Individualized Education Programs (" IEP") amounted to a denial of FAPE. The DOE appealed the administrative decision. On July 31, 2012, Judge Ezra concluded that the 2009 and 2010 IEPs did not deny Student FAPE and thus vacated the AHO's decision to that effect. Judge Ezra also remanded for a determination on the allegations of abuse--

Based on the AHO's decision, it appears that the AHO declined to address the abuse allegations in light of her determination that Ria was denied a FAPE on other grounds. Therefore, the Court REMANDS this case to the AHO for the limited purpose of addressing: (1) whether the allegations of abuse in the due process hearing request resulted in the denial of FAPE, and (2) if so, the appropriate remedy for such denial.

Remand Order at 45.

On remand, the AHO denied the DOE's motion to determine the issues on remand on the existing record, and instead, held a further evidentiary hearing.[1] At the additional evidentiary hearing, Barbara Balinben, the Home School paraprofessional trainer, testified for the first time.[2] Balinben testified that the special education teacher, Sheila Izumigawa, and the educational assistant, Kim Boteilho, restrained Student and force fed her because Student had an eating problem and would not eat. Balinben further testified that Student was force fed to the point of vomiting, and that Student was forced to vomit into her own shirt and then forced to wear that shirt through the remainder of the school day. Balinben also testified that this force-feeding and vomiting occurred on a regular basis. Decision at 12-16.

Izumigawa and Boteilho did not testify at the additional evidentiary hearing on remand, but they did testify as part of the prior 6-day administrative hearing. In that previous testimony, both Izumigawa and Boteilho denied the allegations of force-feeding. While Izumigawa and Boteilho confirmed that Student often refused to eat, and sometimes vomited, they plainly denied any allegations of force-feeding or other mistreatment by themselves or anyone else interacting with Student. Decision at 17-20.

In light of this inconsistent and irreconcilable testimony, the AHO discussed the credibility of Balinben, Izumigawa, and Boteilho:

The AHO listened to the testimony of all of the witnesses in this case.
The testimony of [Izumigawa] and [Boteilho] stand in stark contrast with the testimony of [Balinben].
In order to resolve this issue, and the question of credibility, the AHO weighed the sworn testimony very carefully to determine whether and to what extent each witness should be believed. In deciding the appropriate weight of each witness's testimony, the AHO considered the following factors:

(a) The witness's demeanor;

(b) The witness's manner of testifying;

(c) The witness's candor or frankness, or lack thereof;

(d) The witness's interest, if any, in the result of the case;

(e) The witness's relation, if any, to a party;

(f) The witness's means and opportunity of acquiring information;

(g) The probability or improbability of the witness'[s] testimony;

(h) The extent that the witness is supported or contradicted by other evidence; and

(i) The extent to which the witness has made contradictory statements.

When weighing the effect of inconsistencies, whether the inconsistencies were within a witness's own testimony or between different witnesses, the AHO considered whether the inconsistencies were important matters or unimportant details, and whether the inconsistencies arose from innocent error or deliberate fabrication.
Based on the observation of the sworn testimony and on the consideration of the foregoing factors, the AHO finds the testimony of [Balinben] to be credible, and the testimony of [Izumigawa] and [Boteilho] to be not credible, and as a result, finds that the abuse of Student in Classroom " X" occurred.

Decision at 49. The only explanation provided by the AHO for her adverse credibility determination of Izumigawa and ...

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