C.B. v. Garden Grove Usd

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2014
• Docket: 12-56911
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 28 2014

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

C.B, a minor, by and through his Guardian No. 12-56911 Ad Litem, Alexis Baquerizo, D.C. No. 8:11-cv-01619-JVS- Plaintiff-Appellant, MLG

v. MEMORANDUM*

GARDEN GROVE UNIFIED SCHOOL DISTRICT, a Local Educational Agency,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted February 5, 2014 Pasadena, California

Before: SCHROEDER, CLIFTON, Circuit Judges, and TUNHEIM, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. C.B., a student residing in the Garden Grove Unified School District (“the

District”) who qualifies for special education services, appeals the district court’s

affirmance of a California Administrative Law Judge (“ALJ”) decision regarding

his complaint under the Individuals with Disabilities Education Act (“IDEA” or

“the Act”), 20 U.S.C. § 1400, et seq. We have jurisdiction under 28 U.S.C. § 1291

and we affirm.

I. Supplementing the Record

The district court did not abuse its discretion in failing to supplement the

administrative record with transcripts, as permitted by 20 U.S.C.

§ 1415(i)(2)(C)(ii). See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th

Cir. 1993) (“The determination of what is ‘additional’ evidence must be left to the

discretion of the trial court . . . .” (internal quotation marks omitted)). Recordings

of the relevant meetings were already in the record, so the contents of the meetings,

including any alleged lack of discussion that C.B. wished to demonstrate, were

available to the district court and to this court. The district court properly

considered whether transcripts would be “relevant, non-cumulative, and otherwise

admissible,” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin.

Hearings, 652 F.3d 999, 1006 (9th Cir. 2011), and it was not an abuse of discretion

to conclude that transcripts would be cumulative.

2 II. Compliance with the IDEA

The IDEA imposes substantive and procedural requirements upon states and

school districts, including that they must offer students with disabilities a free and

appropriate public education (“FAPE”), 20 U.S.C. § 1412(a)(1)(A), and develop an

individualized education program (“IEP”) that is reasonably calculated to enable

the child to receive educational benefits, id. § 1412(a)(4); see also R.P. ex rel. C.P.

v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1121 (9th Cir. 2011). In reviewing

compliance with the IDEA, courts should first consider whether the district

complied with the procedures set forth by the Act and then consider whether the

IEP is reasonably calculated to enable the child to receive educational benefits. Bd.

of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458

U.S. 176, 206–07 (1982). Procedural inadequacies that result in the loss of

educational opportunity, seriously infringe the parents’ opportunity to participate

in the IEP formulation process, or cause a deprivation of educational benefits result

in the denial of a FAPE. See Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist.,

267 F.3d 877, 892 (9th Cir. 2001).

A. Procedural Compliance with the IDEA

None of the procedural flaws alleged by C.B. resulted in the denial of a

FAPE. First, any failure by the District to assess or set goals with regard to C.B.’s

3 anxiety did not result in a denial of a FAPE because the District’s offer of

placement adequately addressed C.B.’s anxiety through weekly counseling

sessions and the opportunity to reevaluate after the District was able to observe

C.B. in the new setting. Second, the lack of a specific goal for reading

comprehension alone did not render the IEP inadequate, as the District was

required to provide only some educational benefit, not necessarily the ideal or

maximum benefit to that student. Ojai, 4 F.3d at 1474. The IEP team discussed

C.B.’s reading comprehension need and District staff made clear they intended to

provide him with appropriate services. Third, the baselines for C.B.’s goals in the

IEP met the requirements of the IDEA, see 20 U.S.C. § 1414(d)(1)(A)(i)(I), and

provided sufficient information upon which to measure C.B.’s progress toward

goals; any lack of greater specificity in the baselines did not amount to a denial of a

FAPE. Fourth, the lack of a designated section in the IEP listing accommodations

did not result in the loss of an educational opportunity because the IEP team

discussed and the IEP included (at least in the meeting notes) accommodations

appropriate for C.B. Fifth, any inadequacies in the transition services portion of

the IEP did not result in the denial of a FAPE because, in 2010, C.B. had several

more years to receive services and work towards individualized transition goals.

4 Finally, District personnel presented the placement offer during the IEP

meeting after listening to C.B.’s preferred providers discuss C.B.’s abilities and

collaborating with those providers in developing individualized goals for C.B.,

suggesting that District personnel had an open mind about C.B.’s placement and

did not deprive C.B.’s guardian of an opportunity to meaningfully participate in the

IEP. Cf. J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2010)

(finding no predetermination where district changed aspects of the program based

on parent and expert recommendations, even though district held pre-meeting).

Thus, none of the alleged procedural flaws resulted in the denial of a FAPE.

B. Substantive Compliance with the IDEA

The court reviews de novo whether the District’s offer of placement was a

FAPE, Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996),

evaluating the IEP in light of the information available at the time it was

developed, Adams ex rel. Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).

The District’s offer of placing C.B. in a setting with small group instruction was a

FAPE in the least restrictive environment given that C.B. had spent the past three

years receiving one-on-one instruction and there was no information before the

District indicating that a large group setting would be appropriate for C.B.

Especially considering that C.B. had not been in the District for three years and

5 District personnel had only one opportunity to observe C.B. before the June IEP

meetings, the District’s proposed placement as an interim placement was

appropriate. Cf. Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1132

(9th Cir. 2003) (where student had not been in the district the prior year and

assessments were outdated, the district’s “decision to evaluate [the student] before

implementing a program and the [district]’s decision to implement a temporary IEP

during the [district]’s evaluation of [the student] was appropriate”), superseded by

statute on other grounds, 20 U.S.C. § 1414(d)(1)(B). The District’s offer of

placement was a FAPE in the least restrictive environment in accordance with the

requirements of the IDEA.

AFFIRMED.