Cohen v. Board of Education

888 N.E.2d 627, 382 Ill. App. 3d 612, 321 Ill. Dec. 108, 2008 Ill. App. LEXIS 402
CourtAppellate Court of Illinois
DecidedMay 6, 2008
DocketNo. 1—07—1368
StatusPublished
Cited by3 cases

This text of 888 N.E.2d 627 (Cohen v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Board of Education, 888 N.E.2d 627, 382 Ill. App. 3d 612, 321 Ill. Dec. 108, 2008 Ill. App. LEXIS 402 (Ill. Ct. App. 2008).

Opinion

JUSTICE KARNEZIS

delivered the opinion of the court:

Respondent Board of Education of the City of Chicago (the Board) appeals from an order awarding petitioner, Matthew D. Cohen (Cohen) attorney fees. On appeal, the Board argues: (1) the trial court exceeded its subject matter jurisdiction by granting Cohen attorney fees because Cohen is not authorized to file a supplemental petition in this delinquency matter; and (2) the trial court violated the defendant’s right to due process by refusing to allow it to present any evidence on the issues of willful disregard or the reasonableness of attorney fees.

Background

This appeal arises out of a delinquency proceeding commenced on October 26, 2005, in which D.H. was charged with theft of property valued at $300 or less on the grounds of a Chicago public school. At the time of the charge, D.H. was 12 years old and a seventh-grade student in a special education classroom at Emmett Till School. At an October 2005 hearing, the judge entered an order finding D.H. “guilty as to count(s) 1, supervision.” On January 9, 2006, the judge entered a sentencing order which stated “no finding of guilty entered. The minor is placed on supervision of a period of 12 months.” As part of the court-ordered supervision, D.H. was ordered to remain in school and to perform community service. To assist D.H. with his educational needs, he was referred to probation officer Kevin Hickey, who was an educational advocate. On April 10, 2006, the court found that D.H. was attending school and had completed his 15 hours of community service. In May of 2006, D.H. was evaluated by Dr. Pasulka, a private psychologist, who recommended that D.H. attend a therapeutic day school and receive individual assistance and services to address his behavioral and emotional needs.

On June 8, 2006, the Board held an annual meeting to review D.H.’s “Individual Education Program” (IEP), including consideration of therapeutic day school. During the meeting, D.H.’s mother, Theresa Boswell, expressed concerns that her son was not receiving adequate instruction in reading and math, that his behavior had become significantly worse and that a therapeutic setting was necessary for D.H. to receive a free appropriate public education. The Board denied Boswell’s request for therapeutic day school because a behavior intervention plan needed to be implemented. However, the Board indicated that D.H. would remain in his current full-time special education classroom at Emmett Till School and continue to receive one-on-one direct services with the social worker privately due to confidentiality issues. The Board did admit that D.H.’s special education services were interrupted because there was no behavior intervention plan in place and that the decision regarding compensatory services would be “deferred pending completion of FIE — referred for summer assessment.”

In June and July of 2006, progress reports were made to the court. The court found that D.H.’s IEP was not done, stating that “the Bd. of Ed. not in compliance — CS [community service] being done with mother.” The court also found that D.H. was attending school and presenting no problems at home. The July progress report stated that D.H.’s “staffing is today. He passed the 8th grade.”

On July 21, 2006, the Board reconvened to review assessments requested by Ms. Boswell and probation officer Hickey. The Board again rejected Ms. Boswell and Mr. Hickey’s request for therapeutic day school until a behavior intervention plan was implemented into the classroom. The Board stated that D.H.’s placement in regular education was also not appropriate because he “displays significant behavior concerns that would interfere with educational process.” The IEP team also noted that D.H. was easily distracted and emotionally immature. The July IEP did not list any compensatory services, which was contradictory to the June IEI] which stated that compensatory services would be determined after D.H.’s summer assessment.

In August 2006, Ms. Boswell retained Monahan & Cohen. On September 25, 2006, the court found that “after 5 IP [IEP] meetings, the current IP [IEP] was incorrect and due process was going to be filed because as of September 22, the IEP had not been fully implemented.” On October 16, 2006, Matthew Cohen, on behalf of D.H. and Ms. Boswell, requested a due process hearing from the Illinois State Board of Education to address the deficiencies in D.H.’s IEPs and the inadequacies of the Board’s educational placement of D.H. At the December 5, 2006, mediation session, Ms. Boswell and Chicago Public Schools agreed to place D.H. in a mutually acceptable therapeutic day school. The parties also agreed that an IEP conference would meet 30 days after such placement to determine additional therapeutic services. Upon D.H.’s placement, Ms. Boswell agreed to withdraw her due process request.

On January 8, 2007, attorney Cohen filed a supplemental petition for attorney fees and costs in the juvenile court, asking the court to award fees and costs from the Board totaling $11,826.50 for the period of August 2006 through December 2006. In addition to fees, the petition asked the court to “add the Board of Education of the City of Chicago *** as a partly] to this action.” Cohen contended that Ms. Boswell had retained Monahan & Cohen “because [D.H.] was not receiving an appropriate special education from the Chicago Public Schools (CPS) [sometimes referred to as ‘the Board of Education for the City of Chicago’] and CPS had failed to provide D.H. with any compensatory services.” Petitioner also asserted that CPS “refused to consider therapeutic day school placement for D.H. until Monahan & Cohen became involved in the case.” Finally, petitioner argued that fees were appropriate pursuant to section 14 — 8.02a(i) of the Illinois School Code (105 ILCS 5/14 — 8.02a(i) (West 2006)) in this case because “on information and belief, [the Board] willfully failed to provide D.H. with compensatory services.”

On January 9, 2007, D.H.’s supervision was terminated satisfactorily and the juvenile delinquency case was closed. Also, on January 9, 2007, the court granted a continuance allowing the supplemental petition for fees to be served on CPS. The Board was served with the summons and petition on January 17, 2007. Then, on January 30, 2007, the Board appeared in juvenile court and a briefing schedule regarding the petition was established by the court. The Board then filed a notice of removal to federal court on February 13, 2007. On behalf of Ms. Boswell, Monahan & Cohen filed a motion to remand, arguing that the claim involved only state law. The federal court granted the motion and remanded the case back to the juvenile court. The Board appeared in juvenile court again on March 28, 2007, and a new briefing schedule regarding the supplemental petition was set.

On April 4, 2007, the Board filed its response seeking dismissal of the petition. However, the supplemental petition for attorney fees was granted on April 23, 2007. The court found that the juvenile court had jurisdiction over the petition and that it was within the court’s discretion to award attorney fees even in cases where willfulness has not been established. Counsel for the Board asked if “the fact that the Board has never been able to defend itself against a willful claim matter [ed].” The court, relying on case law, responded that it did not matter.

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Related

In Re Nathan AC
904 N.E.2d 112 (Appellate Court of Illinois, 2008)
In Re Dontrell H.
888 N.E.2d 627 (Appellate Court of Illinois, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
888 N.E.2d 627, 382 Ill. App. 3d 612, 321 Ill. Dec. 108, 2008 Ill. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-board-of-education-illappct-2008.