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P.M. v. Department of Education

United States District Court, D. Hawaii

October 31, 2016

P.M., by and through his Father, ALEX CLARFELD, Plaintiffs,
DEPARTMENT OF EDUCATION, STATE OF HAWAII, and KATHRYN MATAYOSHI, superintendent of the Hawaii Public Schools, Defendants.


          Leslie E. Kobayashi, United States District Judge

         On October 20, 2015, Plaintiffs P.M. (“Student”), by and through his Father, Alex Clarfeld (“Father, ” collectively “Plaintiffs”) filed an appeal of the Administrative Hearings Officer's (“Hearings Officer”) September 22, 2015 Findings of Fact, Conclusions of Law and Decision (“Decision”).[1] [Complaint, filed 10/20/15 (dkt. no. 1).] Plaintiffs filed their opening brief on June 13, 2016. [Dkt. no. 23.] Defendant the Department of Education, State of Hawai`i (“Defendant” or “the DOE”) filed its answering brief on July 11, 2016, and Plaintiffs filed their reply brief on July 25, 2016. [Dkt. no. 25.] The Court heard oral argument in this matter on August 22, 2016. At the request of the Court, the DOE filed a supplemental brief on August 26, 2016, and Plaintiffs filed a supplemental brief on September 6, 2016. [Dkt. nos. 29, 30.] After careful consideration of the briefs, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY AFFIRMED.


         At the time of the Decision, Student was nine years old and had been diagnosed with Autism Spectrum Disorder. Student's Home School is Wailuku Elementary School (“Home School”). [Decision at 2-3.] On February 23, 2015, Plaintiffs filed an Amended Complaint in the administrative proceeding before the Hearings Officer. [ROA, Exh. 1.] In the Amended Complaint, Plaintiffs allege the following:

5. Respondent failed to notify Father and secure Father's presence for the [individualized education program (“IEP”)] developed on March 18, 2014, and March 20, 2014 . . . . The IEP was developed with a DOE-appointed surrogate parent, who was appointed while Student was in temporary foster custody from March 12, 2014, until March 21, 2014, only a 9-day period. While the surrogate parent may have replaced Father for the purpose of making educational decisions for Student during the surrogate's appointment, Father never lost his parental rights and was known and available to the DOE. Respondent deliberately excluded Father from the process of developing Student's March 2014 IEP. Respondent also failed to notify Student's court-appointed guardian ad litem of the March 2014 IEP and failed to secure her presence. Given the facts in this case, the DOE's failure to notify and include Father and the court-appointed guardian ad litem in the development of the IEP was a denial of [free appropriate public education (“FAPE”)].
6. Respondent materially failed to safely implement the February 7, 2014 IEP and the March 2014 IEP, resulting in multiple injuries to Student and subjecting Student to inappropriate conduct by DOE staff.
7. Respondent's offer of speech-language therapy in the February 7, 2014, and March 2014 IEP is not sufficient to meet Student's needs and the DOE failed to materially implement both IEPs relating to speech-language therapy. Student is autistic and non-verbal. Student needs speech-language therapy of at least four days per week on a consistent basis in order to make sufficient progress to allow Student to receive educational benefit.
8. On January 20, 2015, the DOE held an IEP meeting without Father present. Father made a written request to hold the IEP meeting February 24, 2015, so that he could have an expert in autism also attend the IEP meeting. The DOE refused Father's request stating the request was inappropriate since it “exceeds the annual due date for [Student's] IEP”. The only team members who participated in the January 20, 2015, IEP were the principal, general education teacher, and special education teacher. The DOE denied Father the opportunity to participate in the IEP process, which was a violation of FAPE.

(Some alterations in Amended Complaint.) On April 8, 2015, the DOE filed a Motion for Partial Summary Judgment seeking the dismissal of the claims in paragraphs six and seven of the Amended Complaint. [ROA, Exh. 6.] Plaintiffs did not object to the motion. [Id., Exh. 7 (Statement of No Opposition to Respondent's Motion for Partial Summary Judgment).]

         The Hearings Officer convened a hearing on May 20, 2015 in Wailuku, Maui. [ROA, Exh. 2 (Notice of Hearing and Pre-Hearing Conference).] In the Decision, the Hearings Officer stated:

         [Plaintiffs] allege procedural and substantive violations of the [IDEA]. Specifically, Petitioners allege that the DOE denied Student a free appropriate public education (“FAPE”). [Plaintiffs] raise the following issues:

A. [The DOE] failed to notify Father and secure Father's presence for the Individualized Education Program (“IEP”) developed on March 18, 2014 and on March 20, 2014 . . .; and
B. On January 20, 2015, the DOE held an IEP meeting without Father present.

[Decision at 2.]

         A. Participation in the 3/20/14 IEP

         The Hearings Officer found that, during the 2013-2014 school year, the Home School noticed “scratches, skin bleeding, and head injuries” on Student. [Id. at 3 (citing ROA, Hrg. Trans. at 20).] The Home School reported the injuries to Child Protective Services (“CPS”). [Id. (citing ROA, Hrg. Trans. at 21, 74).] As a result, CPS removed Student from Father's care from March 12, 2014 to March 21, 2014, during which time Student was placed in temporary foster custody. [Id. (citing ROA, Pltf.'s Exh. 9 at 127; id., Hrg. Trans. at 21).] While in temporary foster custody, Student was technically a “ward of the State.” [Id. (citing ROA, Def.'s Exh. 10 at 355; id., Hrg. Trans. at 24).] The Home School therefore requested a surrogate parent for Student, and one was affirmed on March 14, 2014. [Id.] Father met the surrogate parent at a meeting at the Home School on March 14, 2014 (“3/14/14 Meeting”). While not an official IEP meeting, the attendees at the 3/14/14 Meeting, including Home School employees, the surrogate parent, and Father, “discussed providing Student with a damp towel, ” additional special education minutes, and parent education. [Id. at 3 (citing ROA, Def.'s Exh. 33 at 1150; id., Hrg. Trans. at 38-40, 231-32).]

         Also on March 14, 2014, the Home School sent “an IEP Conference Announcement to the surrogate parent, ” notifying the surrogate parent of an IEP meeting on March 18, 2014.[2] [Id. at 4 (citing Pltf.'s Exh. 8 at 124).] The Hearings Officer found that, on March 18, 2014, the surrogate parent instead “spoke to staff at the Home School about amending the IEP without a meeting.” [Id. at 21.] To that end, on March 20, 2014, the existing IEP was amended (“3/20/14 IEP”) “to reflect the changes discussed in the [3/14/14] Meeting.” [Id. at 4 (footnote omitted) (citing ROA, Hrg. Trans at 281).]

         Insofar as Father argued that the surrogate parent did not have the right to agree to the 3/20/14 IEP and waive the meeting requirement, the Hearings Officer concluded that, pursuant to 20 U.S.C. § 1401(23), 34 C.F.R. § 300.30, Haw. Admin. Reg. § 8-60-2, and Haw. Admin. Reg. § 8-60-73, “Father did not have the legal authority to make Student's education decisions, because Student had become [a] ward of the State.”[3] [Id. at 22-23.]

         B. Participation in the 1/20/15 IEP

         Father also alleges that he was denied parental participation at the January 20, 2015 IEP meeting (“1/20/15 Meeting”), and therefore Student was denied a FAPE. Father removed Student from his Home School in April 2014, and he began attending a private school on April 28, 2014. [Decision at 5 (citing ROA, Pltf.'s Exh. 1 at 38; id., Hrg. Trans. at 25).] Father agreed to attend an IEP meeting on June 17, 2014. [Id. (citing Pltf.'s Exh. 8 at 125).] The June meeting was later postponed at Father's request, and the Home School Principal (“Principal”) and Father agreed to hold an IEP meeting on August 21, 2014. [Id. (citing ROA, Def.'s Exh. 21 at 463, 469; id., Def.'s Exh. 22 at 614).] The IEP team met on August 21, 2014 (“8/21/14 Meeting”), but was unable to complete the IEP process. [Id. (citing Hrg. Trans. at 244).] In September 2014, Father wrote to Principal and asked that the IEP meeting be postponed until the Clinical Director of the Center for Autism Related Disorders (“CARD”) could attend the meeting. [Id. (citing ROA, Def.'s Exh. 21 at 487).] Father expressed a desire to have the CARD Clinical Director appear in person because, at least in part, “his heavy Russian Accent . . . could make it especially difficult for someone who is appearing by telephone or video conferencing to understand him.” [Id. (citing Pltf.'s Exh. 1 at 6; id., Hrg. Trans. at 34).]

         Later that month, Principal requested possible meeting dates from Father, and Father responded by telling Principal that the CARD Clinical Director would be available in November 2014. [Id. at 5-6 (citing ROA, Def.'s Exh. 21 at 489, 491).] On September 29, 2014, Principal wrote to Father with three dates (“9/29/14 Letter”), and Principal asked Father to pick two for a two-day IEP meeting. [Id. at 6 (citing ROA, Def's Exh. 21 at 493).] On October 23, 2014, Principal wrote Father another letter asking him to respond to the 9/29/14 Letter. [Id.] On November 24, 2014, after Father failed to respond to Principal's previous two letters, Principal wrote Father again and offered dates for an IEP meeting in December. [Id. (citing ROA, Def.'s Exh. 21 at 499).] Principal informed Father that, because Student was scheduled to return to the Home School in January 2015, it was important that they finish the IEP started at the 8/21/14 Meeting. [Id.] On December 1, 2014, Father contacted the Home School and asked for an IEP meeting on December 16, 2014. [Id. (citing ROA, Hrg. Trans. at 57).] Father sent a letter to the Home School on December 15, 2014, in which he requested that Principal cancel the December IEP meeting. [Id. at 9 (citing ROA, Pltf.'s Exh. 1 at 2-3; id., Hrg. Trans. at 29).] Further, Father suggested that the Home School wait until he contacted them with firm dates on which the CARD Clinical Director could attend an IEP meeting. On December 16, 2014, the Home School held a “preparation meeting” without Father, where “[t]hey discussed their observations, a draft IEP and the possibility of a transition plan, ” but where “[n]o definitive IEP decisions were made.” [Id. (citing ROA, Hrg. Trans. at 321-23).]

         On December 17, 2014, Principal sent Father a letter informing him that, pursuant to the IDEA, the school needed to update Student's IEP by January 21, 2015. [Id. at 9 (citing ROA, Def.'s Exh. 21 at 514).] Principal proposed an IEP meeting for January 12, 14, or 16, 2015, and requested a response by December 31, 2014. [Id. at 9-10 (citing ROA, Def.'s Exh. 21 at 514).] Instead, Father responded on January 2, 2015, stating that he could not attend a meeting on January 12, 2015, because he was not involved in the scheduling process, and that he would like to hold the IEP meeting in February 2015 so that the CARD Clinical Director could attend in person. [Id. at 10 (citing ROA, Pltf.'s Exh. 1 at 4-5).] On January 7, 2015, Father sent another letter requesting an IEP meeting on February 24, 2015 at 9:30 a.m. [Id. (citing ROA, Pltf.'s Exh. 1 at 6-7).] That same day, the Home School sent Father a letter (“1/7/15 Letter”) stating that: an IEP needed to be completed before January 21, 2015; they wanted to hold an IEP meeting on January 14 or 16, 2014; “the CARD Clinical Director could participate via telephone or Skype”; and Father could use a Russian interpreter at the IEP meeting.[4] [Id. (citing ROA, Pltf.'s Exh. 1 at 8).]

         Plaintiffs went on vacation off-island from January 9, 2015 to February 15, 2015. [Id. (citing ROA, Pltf.'s Exh. 3 at 46; id., Hrg. Trans. at 182).] On January 12, 2015, Principal sent Father a letter (“1/12/15 Letter”) stating that, if Father did not respond, the IEP meeting would be held on January 16, 2016. [Id. at 11 (citing ROA, Def.'s Exh. 21 at 532).] The 1/12/15 Letter “reiterated that the CARD Clinical Director could participate by Skype or telephone.” [Id.] Principal wrote Father a similar letter on January 14, 2016 (“1/14/15 Letter”). [Id. (citing ROA, Def.'s Exh. 21 at 537; id., Hrg. Trans. at 252).] In the 1/14/16 Letter, Principal stated that “[i]f Father and the CARD Clinical Director could not participate, the IEP team could hold a meeting without them and use the new IEP on an interim basis until there was a meeting on February 24, 2015 with Father and the CARD Clinical Director.” [Id.] Father did not respond to the 1/7/15 Letter, the 1/12/15 Letter, or the 1/14/15 Letter. The 1/20/15 Meeting followed, where the Home School updated the existing IEP (“1/20/15 IEP”). [Id. (citing ROA, Pltf.'s Exh. 1 at 15-35).]

         On January 29, 2015, Principal sent Father a letter with a copy of the 1/20/15 IEP. [Id. at 12 (citing ROA, Def.'s Exh. 21 at 542).] The Home School intended for the 1/20/15 IEP to serve only as an interim IEP until the February 24, 2015 meeting with Father and the CARD Clinical Director. [Id. (citing ROA, Hrg. Trans. at 259-60).] On February 24, 2015, the Home School held another IEP meeting (“2/24/15 Meeting”) and updated the 1/20/15 IEP (“2/24/15 IEP”), this time with, inter alia, Father and the CARD Clinical Director present. [Id. at 13 (citing ROA, Pltf.'s Exh. 6 at 98).] Because Student did not return to the Home School, no follow-up meeting ever took place. [Id. at 14 (citing ROA, Hrg. Trans. at 383).]

         The Hearings Officer concluded that, pursuant to 34 C.F.R. § 300.345(d)(1)-(3), [5] an IEP meeting may go forward without a parent in attendance if there was an effort to include the parent and there is documented evidence of that effort. [Id. at 25.] Further, the Hearings Officer found that “[t]he Home School had attempted to convene the IEP meeting several times, and Father continued to postpone or cancel the meeting.” [Id. at 27.] Specifically, the Hearings Officer stated:

Father's non-responsiveness and delays were clearly calculated to delay the IEP. This is buttressed by the fact that he did not tell the Home School that he would be off-island for most of January and February 2015. Respondents offered IEP meetings in June, August, September, five in November, December 2014, and four in January 2015. To suggest that the DOE did not provide Father with an ample opportunity to participate flies in the face of the established testimony and facts.

[Id. at 29-30.] Further, on more than one occasion, Father argued that rescheduling the meeting was required so that the CARD Clinical Director could attend, but “[t]he IEP team repeatedly made offers to have the CARD Clinical Director to [sic] participate via Skype or telephone conference, ” which was refused because the director allegedly had documents to present to the IEP team. [Id. at 31.] The Hearings Officer noted, however, that, “[t]here was no evidence presented that any ‘documents' were presented by the Clinical Director at the IEP meeting.” [Id.] Finally, the Hearings Officer found that, while Father stated that “his heavy Russian accent” was one of the reasons he did not want the CARD Clinical Director to appear by phone, “[a]ccommodations had been offered to Father, but he chose to refuse them.” [Id. at 32.]

         The Hearings Officer concluded that:

[T]he IEP team properly conducted the IEP meeting without Father pursuant to the requirements in 34 C.F.R. 300.345(d)(1)-(3). The Home School was unable to secure Father's presence, despite multiple attempts. The DOE recorded its attempts to arrange a mutually agreed on time and place, through telephone calls, emails, messages, and letters, and also recorded [Plaintiffs'] lack of responses and cooperation.

[Id. at 38.]


         This Court has also examined what constitutes a FAPE, and what is required in reviewing an administrative decision under the IDEA:

         The IDEA defines FAPE as:

         special education and related services that -

(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section ...

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