Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
D.T., a minor, by and through his parent Yasiris T.,
Plaintiff - Appellant,
v. No. 21-1265
CHERRY CREEK SCHOOL DISTRICT NO. 5,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00706-LTB-SKC) _________________________________
Igor Raykin (Michael Nolt with him on the briefs), Kishinevsky & Raykin, Attorneys at Law, Aurora, Colorado, for Plaintiff - Appellant.
Elliott V. Hood (Elizabeth R. Friel with him on the brief), Caplan and Earnest LLC, Boulder, Colorado, for Defendant – Appellee. _________________________________
Before HOLMES, Chief Judge, MURPHY, and HARTZ, Circuit Judges. _________________________________
MURPHY, Circuit Judge. _________________________________
I. INTRODUCTION
In the fall of 2015, D.T. enrolled as a freshman at Cherokee Trail High School
in Aurora, Colorado. During his tenure at Cherokee Trail, he suffered from Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 2
depression and a general decline in academic performance. While D.T. struggled with
his mental health, his mother regularly communicated with school officials regarding
his well-being and coordinated in-school support. During the first semester of his
junior year, D.T. was reported for making a school shooting threat. As a result, he
was expelled from Cherokee Trail and the Cherry Creek School District (“the
District”) initiated a special education assessment. In December 2017, the District
concluded D.T. suffered from a Serious Emotional Disability and approved an
individualized education program (“IEP”) to assist his learning.
D.T. appeals from the district court decision confirming an administrative
ruling that the District did not deny him access to a free, appropriate public education
(“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”).
20 U.S.C. § 1400–19; see also infra III.a. (explaining the unusual manner in which
IDEA litigation proceeds in federal court). He argues the District knew or should
have known he suffered from an IDEA-recognized disability prior to initiating a
special education evaluation in November 2017. D.T. asks this court to conclude the
District violated its obligation to identify, or “child find,” students with disabilities
who require supplementary academic supports. See id. § 1412(a)(3). To the contrary,
throughout his enrollment at Cherokee Trail, the District acted reasonably to preserve
his access to the benefit of general education. The District’s duty to assess and
provide D.T. with special education services did not begin until his emotional
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dysfunction1 manifested in the school environment by way of his shooting threat.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court
ruling.
II. BACKGROUND
a. FACTUAL HISTORY
D.T. and his family moved from Florida to Colorado in 2015. Shortly
thereafter, he began his freshman year at Cherokee Trail. Cherokee Trail had a much
larger student body than that to which D.T. was accustomed. Although he performed
well academically his first year, he expressed difficulty connecting with his peers and
teachers in his new environment. In January 2016, D.T.’s mother first emailed his
assigned school counselor, Mr. Jasurda, conveying concern about D.T.’s well-being.
She described her son as depressed and struggling to acclimate to Cherokee Trail.
D.T. completed his freshman year with mostly As and Bs, earning a 3.36 weighted
GPA.2
1 As described by the Colorado Exceptional Children’s Education Act (“ECEA”), emotional dysfunction refers to pervasive inappropriate behaviors or feelings in otherwise normal settings that interfere with social or academic development. See e.g., 1 C.C.R. 301-8 § 2.08(3). In addition to IDEA and its federal enabling regulations, the ECEA includes jurisdiction-specific requirements for special education administration. See infra § III.b. Emotional dysfunction is also closely associated with emotional dysregulation, which describes difficulty maintaining emotional reactions within traditionally accepted norms. See generally, AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 65, 155 (5th Ed. 2013). 2 The GPA scale for honors courses is higher than grade level courses. A weighted GPA factors in this higher scale to reflect the added rigor of honors courses. An unweighted GPA does not weigh courses on different scales. 3 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 4
During his sophomore year, D.T.’s grades began a downward tilt. In
preparation for applying to college, he enrolled in three honors classes: Chemistry,
English, and Spanish. Mr. Jasurda recommended he switch to grade level English
after he earned a D in his first semester of the honors course, but he declined. He
received a 2.48 weighted GPA during fall semester of his sophomore year and a 2.35
weighted GPA the following spring. He failed his spring honors English course. D.T.
enrolled in grade level English during the following summer term earning a B+.
Sophomore year also brought strain for D.T. outside the classroom. His
academic file indicates “an after-school concern” was reported on October 6, 2016.
Mr. Jasurda contacted the local Sheriff’s Department to conduct a welfare check and
D.T. was reported as “OK.” On April 23, 2017, D.T.’s mother sent Mr. Jasurda an
email relaying D.T.’s struggles with suicidal ideation. Her message described a
recent incident in which he attempted to “jump in front of a car” after a fight with his
family. The following day, the school psychologist, Dr. Liguori, conducted a suicide
risk assessment and concluded D.T. was of high concern. Dr. Liguori referred him to
the Colorado Crisis Center for follow-up evaluation. Dr. Liguori also provided D.T.’s
mother with a list of therapists and a referral to the Second Wind Fund, which
provides financial assistance to families with children in need of mental health
counseling. On May 7, his mother emailed Dr. Liguori stating D.T. “seem[ed] to have
turned things around” after the risk assessment but has since experienced emotional
distress at home and potentially abused drugs. Her message added, “calling the
therapist you gave me will only waste those peoples time as he will not cooperate.”
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Unfortunately, fall semester of his junior year provided further tumult. On
September 14, 2017, his mother emailed Mr. Jasurda reiterating D.T.’s at-home
behavioral issues and her suspicions of his drug use. Mr. Jasurda met with him the
following day and discussed strategies to approach his academic and familial
concerns. Based on their conversation, Mr. Jasurda did not perceive he was using
drugs, but D.T. reported feeling depressed and discontented with family life. Three
days later, on September 18, D.T. had an argument with his parents which resulted in
him leaving the house late at night. The next morning, he checked into Children’s
Hospital Colorado for mental health evaluation and inpatient psychiatric treatment.
He was discharged on September 24 with diagnoses of Major Depressive Disorder
and Unspecified Anxiety Disorder. The discharge notes recommended individual
therapy and a transition meeting to prepare for going back to school. Two days later,
Dr. Liguori met with D.T. and his mother to discuss a re-entry plan. The plan called
for Dr. Liguori and Mr. Jasurda to regularly check-in with him and coordinate with
teachers to provide academic accommodations, such as clarifications on outstanding
work, waiver of non-essential assignments, and additional tutoring.
On September 30, D.T.’s mother emailed Dr. Liguori to report she caught her
son “doing weed.” Two weeks later, on October 11, she emailed Dr. Liguori and Mr.
Jasurda requesting a § 504 plan.3 See Rehabilitation Act of 1973, Pub. L. No. 93-112,
3 Like IDEA, § 504 requires students with disabilities be provided FAPE. See 29 U.S.C. § 794; 34 C.F.R. § 104.33(a). Unlike IDEA, which focuses on special education, § 504 encompasses academic aids within regular or special education. See
5 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 6
87 Stat. 355-94 (codified as amended at 29 U.S.C. §§ 701–97). Dr. Liguori offered a
preliminary meeting that week but indicated it would take longer to set up a formal
§ 504 review. On October 13, D.T.’s mother met with Dr. Liguori to discuss
implementing more immediate academic supports. The school referred D.T. to Ms.
Lewis, a teacher who specializes in helping students with organizational skills. Ms.
Lewis sent two hall passes to meet with him, but D.T. did not respond. He also did
not report when Mr. Jasurda sent a hall pass to him on November 9 after his father
notified Mr. Jasurda about a recent argument he had with his son.
On November 10, a student reported D.T. had threatened to “shoot up the
school.” School officials convened a threat assessment, at which D.T. admitted to the
statements but denied any desire to hurt anyone. D.T. left school after being
dismissed from the evaluation and he called his mother saying he was going to hurt
himself. Shortly thereafter, he was admitted to Children’s Hospital for inpatient
psychiatric treatment. On November 15, he discharged from the hospital with
diagnoses of recurrent and severe Major Depressive Disorder without psychotic
features and Generalized Anxiety Disorder. The discharge notes indicated he was not
a threat to others but struggled with his own safety. The hospital also recommended
an IEP “to help emotional support.” As a result of his threat, D.T. was first suspended
e.g., McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 911 (9th Cir. 2020). A § 504 plan, therefore, is a written document describing a range of regular or special education services used to assist a student’s learning. Id. Due to § 504’s broader scope, a more specialized IEP may be used to satisfy § 504 requirements, but a § 504 plan may not be used to satisfy IDEA requirements. Id. at 912; see also Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1246 (10th Cir. 2009). 6 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 7
and then expelled from Cherokee Trail.4 D.T. transferred to the District’s
home/hospital program. On November 17, Dr. Liguori conducted a preliminary
psychological assessment as part of an evaluation for special education services. The
report concluded D.T. had average cognitive ability but suffered emotional regulation
issues associated with anxiety and depression. Dr. Liguori noted he “may benefit
from added support within the home and school environments to address his social
and emotional needs.”
On December 13, the District held a meeting to determine whether D.T. was
eligible for special education services under IDEA. The group concluded D.T. met
criteria for a child with a Serious Emotional Disability (“SED”). They determined
D.T.’s SED disrupted the reasonable benefit of his general education and necessitated
special education services. The evaluating team also determined D.T.’s emotional
dysfunction was not due solely to “social maladjustment.” Accordingly, the team
developed an IEP with academic accommodations and a Behavior Intervention Plan
(“BIP”) to assist D.T. with emotion regulation.
D.T. completed his junior fall semester with a GPA below 2.0. After winter
break, he transferred to George Washington High School in the Denver Public School
District for the spring 2018 semester. His IEP was transferred to George Washington.
4 Prior to D.T.’s expulsion, a “manifest determination” meeting was conducted to evaluate whether the shooting threat arose out of D.T.’s disability. The determination team concluded the misconduct did not relate to a disability and therefore D.T. was subject to expulsion review. D.T. does not challenge his expulsion nor the District’s determination that his threat was not a manifestation of his disability. 7 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 8
D.T. reported initial academic improvement at George Washington due to additional
accommodations and teacher support. He earned a weighted GPA of 3.59 during his
junior spring semester. D.T. testified his grades subsequently fell his senior year
because he was “abusing drugs and lost focus.” He earned a weighted GPA of 2.64
his senior fall semester and 2.55 his senior spring semester. D.T. graduated from
George Washington in May 2019.
b. PROCEDURAL HISTORY
Through his mother, D.T. filed a due process complaint with the Colorado
Department of Education on April 23, 2019. The complaint stated the District knew
or should have known he suffered from an SED as early as April 2017. D.T. argued
the District, therefore, violated its child find duty by not commencing IEP procedures
until November 2017. On December 10 and 11, 2019, a due process hearing was held
before an administrative law judge in the Colorado Office of Administrative Courts.
The ALJ found “insufficient evidence of the necessary SED qualifying conditions to
suspect that D.T. was a child with a disability requiring special education . . . until
November 2017 when D.T. threatened to ‘shoot up the school.’”
D.T. brought a civil action in the United States District Court for the District
of Colorado. See 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516. The district court
agreed with the administrative findings. Although D.T. met the criteria for an SED by
November 2017, the district court affirmed that not enough evidence existed prior to
the shooting threat to trigger the District’s statutory child find obligations. The
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district court emphasized that D.T.’s educational benefit was only undermined when
his emotional dysfunction manifested in the school setting by way of his threat.
III. ANALYSIS
a. STANDARD OF REVIEW
IDEA initially places IEP disputes under state-based administrative review.
See 20 U.S.C. § 1415(f). Administrative adjudication of statutory claims is typically
given substantial deference. See Garcia v. Bd. of Educ. of Albuquerque Pub. Sch.,
520 F.3d 1116, 1125 (10th Cir. 2008). IDEA, however, requires district courts to
apply a modified de novo standard when reviewing administrative decisions. Id.
Under this standard, a district court must: a) receive the records of the administrative
proceedings; b) hear additional evidence at the request of a party; and c) base its
decision on the preponderance of evidence. 20 U.S.C. § 1415(i)(2)(C). When
conducting this review, district courts must give “due weight” to agency findings of
fact, which are presumed correct. Garcia, 520 F.3d at 1125. This court applies the
same “due weight” de novo standard in conducting appellate review of district court
decisions under IDEA.5 Id.
5 This court has previously recognized this unusual standard of review upon appeal: “We recognize, though, that, while we are bound to apply a modified de novo standard of review, our rule represents the distinct minority position among circuit courts, see, e.g., Light v. Parkway C–2 Sch. Dist., 41 F.3d 1223, 1229 (8th Cir.1994); Oberti v. Bd. of Educ., 995 F.2d 1204, 1220 (3d Cir.1993); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.1987). Our modified de novo approach also runs counter to the general standard of review suggested in Fed.R.Civ.P. 52(a). En banc reconsideration of our standard of review may well be appropriate at some point.” Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1150 n.6
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b. IDEA & ECEA
Three bodies of law direct IDEA claims: first, IDEA itself; second, federal
enabling regulations; and third, jurisdiction-specific regulations. See 20 U.S.C.
§ 1400–19; 34 C.F.R. Part 300; 1 C.C.R. 301-8. IDEA announces the broad
requirement for states to provide students with free, appropriate public education, or
“FAPE,” but relies on specific federal and state regulations for implementation. See
20 U.S.C. § 1412(a)(1); see generally Ass’n for Cmty. Living in Colo. v. Romer, 992
F.2d 1040, 1042–43 (10th Cir. 1993). The basic vehicle to achieve FAPE is the
development of an IEP for all eligible students. See Endrew F. ex rel. Joseph F. v.
Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). IDEA requires an IEP for
each child with a recognized disability. 20 U.S.C. § 1412(a)(4). D.T.’s claims
concern two interrelated issues pertinent to FAPE: when a school’s “child find”
obligation is triggered and what qualifies as a serious emotional disability, or “SED.”
The child find obligation requires schools to proactively “identify, locate, and
evaluate” students with disabilities who may need special education or other
academic supports. Id. § 1412(a)(3). A “child with a disability” is a student with a
qualifying disability under IDEA and “who, by reason thereof, needs special
education and related services.” 34 C.F.R. § 300.8(a)(1); 20 U.S.C. § 1401(3)(A).
Federal regulation clarifies child find is triggered when children “are suspected of
being a child with a disability . . . even though they are advancing from grade to
(10th Cir. 2008). As in Luke P., however, the adopted standard of review does not alter the outcome of this case. Id. 10 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 11
grade.” 34 C.F.R. § 300.111(c)(1) (emphasis added). Thus, the child find duty is
triggered when the school district has reasonable suspicion to believe that a student is
a “child with a disability.” See J.M. ex rel. C.M v. Summit City Bd. of Educ., 39 F.4th
126, 142 (3d Cir. 2022); see also Wiesenberg v. Bd. of Educ. of Salt Lake City Sch.
Dist., 181 F. Supp. 2d 1307, 1311 (D. Utah 2002). Districts must act “within a
reasonable time after school officials are on notice of behavior that is likely to
indicate a disability.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 250 (3d Cir. 2012)
(quotation omitted); see also Spring Branch Indep. Sch. Dist. v. O.W. ex rel. Hannah
W., 961 F.3d 781, 791 (5th Cir. 2020). When a disability is found, IEP or
individualized services assessment commences. 20 U.S.C. § 1412(a)(4).
IDEA expressly includes “serious emotional disturbance” as a qualifying
disability for purposes of receiving special education. See 20 U.S.C. § 1401(3)(A)(i).
Federal regulation defines SED with five criteria, at least one of which must
adversely affect academic performance and be displayed “over a long period of time
and to a marked degree”:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems.
34 C.F.R. § 300.8(c)(4)(i).
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In addition to these federal criteria, Colorado’s Exceptional Children’s
Education Act (“ECEA”) provides requirements for determining if a student has an
SED. See 1 C.C.R. 301-8 § 2.08(3). As a threshold matter, the child’s SED must
yield either an academic impairment which interferes with their ability to receive the
benefit of general education or a socio-emotional impairment which impedes their
ability to maintain interpersonal relationships. Id. § 2.08(3)(b)(i)–(ii). Colorado’s
ECEA also includes four mandatory qualifiers for an SED determination:
i) A variety of instructional and/or behavioral interventions were implemented within general education and the child remains unable to receive reasonable educational benefit from general education. ii) Indicators of social/emotional dysfunction exist to a marked degree; that is, at a rate and intensity above the child’s peers and outside of his or her cultural norms and the range of normal development expectations. iii) Indicators of social/emotional dysfunction are pervasive and are observable in at least two different settings within the child’s environment. For children who are attending school, one of the environments shall be school. iv) Indicators of social/emotional dysfunction have existed over a period of time and are not isolated incidents or transient, situational responses to stressors in the child’s environment.
Id. § 2.08(3)(c).
Finally, the ECEA emphasizes an SED cannot be the product of mere “social
maladjust[ment].” Id. § 2.08(3)(d). Collectively, to meet SED requirements under
federal and state law in Colorado, an in-school student must experience social or
emotional dysfunction that substantially impairs educational attainment or social
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development. Such dysfunction must be consistent, unusual, present in the school
environment, and unmitigated by other academic or behavioral interventions.
c. CHILD FIND & SED
D.T. urges this court to determine the District should have suspected he had a
disability prior to when it began IEP assessment. He argues enough evidence existed
to trigger the District’s child find obligation as early as April 2017, when the
school’s suicide risk assessment suggested a high degree of concern, but no later than
September 2017, when he was first hospitalized for mental health treatment. This
court agrees with the district court and administrative findings that D.T. did not
satisfy the criteria for an SED determination until his November 2017 shooting
threat, at which point the District’s child find duty began.
The two issues presented, when D.T. qualified as having an SED and when the
District’s child find obligation commenced, fit snugly together in this particular case.
As discussed above, federal and state regulations prescribe discrete criteria for an
SED determination. 34 C.F.R. § 300.8(c)(4)(i); 1 C.C.R. 301-8 § 2.08(3). By
contrast, determining child find duties implicates a subjective inquiry into when a
school should reasonably suspect a student has a qualifying disability. 34 C.F.R.
§ 300.111(c)(1); D.K, 696 F.3d at 250; Spring Branch Indep. Sch. Dist., 961 F.3d at
791. The criteria used to classify an SED can act as a guide for determining whether
a school had adequate information to implement special education supports. See e.g.,
Leigh Ann H. ex rel. K.S. v. Riesel Indep. Sch. Dist., 18 F.4th 788, 797 (5th Cir.
2021). As applied to D.T., three unmet elements of an SED under Colorado’s ECEA
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indicate the District’s child find obligation was not breached. Until November 2017,
D.T.’s emotional dysfunction had not manifested in the school environment; the
District actively engaged him with alternative interventions; and his struggles were
readily explainable by acute, non-academic stressors.
Under Colorado law, an SED determination requires the student display
pervasive emotional dysfunction in at least two settings. 1 C.C.R. 301-8
§ 2.08(3)(c)(iii). For students enrolled in traditional school, one of these settings
must be at school. Id. Given IDEA’s mission of protecting students’ FAPE, such a
nexus between a student’s school and their disability is crucial. See Sytsema ex rel.
Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1312 (10th Cir. 2008). Until
D.T.’s shooting threat, in-school manifestation of his emotional dysfunction was
scant. The incidents he uses to illustrate that the District violated its child find duty
predominantly stem from at-home conduct. The April 2017 email which D.T. argues
initially placed the District on notice of his disability described self-harm arising
from arguments with his family. A follow-up email in May 2017 primarily discussed
his at-home behavior, including “tantrums over food” and leaving the house without
permission. Similarly, his September 2017 hospitalization resulted directly from an
argument with his family. Despite these difficulties at home, the District reported no
substantial behavioral issues during school, and he continued to engage in his studies.
D.T. clearly struggled to regulate his emotions with his family throughout 2017, but
these behavioral patterns did not manifest in the school environment and disrupt his
ability to receive the benefit of general education.
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Without evidence of emotional dysfunction in the school setting, D.T. urges
this court look to his negative attitude about school and his declining grades as
evidence of in-school manifestation of an SED. D.T. testified to having difficulty
connecting socially with teachers and students upon arriving at Cherokee Trail. He
also noted his depression impacted his motivation to complete his studies during his
sophomore and junior years. Without more, these facts do not qualify as the type of
in-school manifestation of emotional dysfunction required for an SED determination
or to trigger child find protocols. See 34 C.F.R. § 300.8(c)(4)(i). Until November
2017, D.T. received the reasonable benefit of general education. Except for
sophomore spring honors English, D.T. passed all his courses and did not
demonstrate an academic or social impairment which created an inability to learn or
connect with others. See id.; 1 C.C.R. 301-8 § 2.08(3)(b). Although this court takes
seriously the toll depression and anxiety take on students’ learning, we do not
construe mere declining grades and social difficulty as the kind of pervasive
disability IDEA contemplates for an SED determination. See e.g., Leigh Ann H., 18
F.4th at 797 (“[M]ixed academic success does not—in itself—trigger a school
district’s obligation to evaluate”); Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d
1073, 1081 (8th Cir. 2020) (recognizing an SED when a long-term “panoply” of
mental health issues left a student terrified to even attend school); L.J. v. Pittsburg
Unified Sch. Dist., 850 F.3d 996, 1002 (9th Cir. 2017) (recognizing an SED when
multiple suicide attempts resulted in substantial school absences and the child
repeatedly injured or threatened to injure his classmates and teachers).
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Colorado’s ECEA also requires a variety of instructional or behavioral
interventions within general education be implemented without success prior to an
SED determination. See 1 C.C.R. 301-8 § 2.08(3)(c)(i); see also J.M., 39 F.4th at 142
(3d Cir. 2022). The District went to great lengths to ensure D.T.’s access to FAPE
upon becoming aware of his struggles with mental health. When faced with acute
mental health concerns, the school conducted a risk assessment and a robust re-entry
plan with individualized supports. The school also consistently offered D.T.
additional counseling and customized academic help. For those additional academic
supports in which he participated, the school observed progress. For example, D.T.’s
counselor attempted to redirect him to a grade level English course when he was
struggling in the honors version of the class, and he succeeded when placed in the
grade level course during summer school. On several occasions the school also
provided outside therapeutic referral, additional counseling, and one-on-one
educational services, with which D.T. refused to engage.6 When paired with the lack
of in-school manifestation of emotional dysfunction, the school had no reason to
suspect its general education supports were insufficient. Until November 2017, D.T.
maintained the capacity to complete course material and meet academic standards,
indicating his FAPE was preserved. See Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d
1182, 1194 (11th Cir. 2018).
6 D.T. does not argue he declined any of these services because his disability prevented him from taking advantage of them. 16 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 17
Finally, Colorado law requires SED determinations to include lasting
indications of emotional dysfunction that are not “isolated incidents or transient,
situational responses in the child’s environment.” 1 C.C.R. 301-8 § 2.08(3)(c)(iv).
There were several reasonable, acute, and non-academic explanations for D.T.’s
mental health struggles. As discussed above, his episodes of emotional distress were
strongly connected with familial disputes outside the school environment. Further,
the record demonstrates he struggled with moving from Florida to Colorado and
settling into an unfamiliar learning environment. D.T. also took a rigorous course
load against his counselor’s advice, and he performed better when it was pared back.
Lastly, he began engaging in regular drug use during his sophomore and junior
years.7 These circumstances illustrate repeated situational responses to negative
occurrences in D.T.’s life. Collectively, they represent several reasons why the
school would not interpret his mental health struggles as a disability, but as reactions
to independent stressors. In addition to the District’s academic interventions and a
lack of in-school manifestation of his emotional dysfunction, these acute difficulties
support the conclusion that reasonable suspicion of disability did not arise prior to
November 2017. See Krawietz v. Galveston Indep. Sch. Dist., 900 F.3d 673, 677 (5th
7 D.T.’s testimony indicates he ceased his drug use upon transferring to George Washington High School and performed well in his spring 2018 semester. During his senior year, however, he returned to abusing drugs and his grades fell to marks similar to those he earned during his sophomore year at Cherokee Trail. His grades fell during his senior year despite the support of his IEP.
17 Appellate Case: 21-1265 Document: 010110786446 Date Filed: 12/20/2022 Page: 18
Cir. 2018) (utilizing a totality-of-the-circumstances approach in the “child find”
context).
D.T. suggests a student’s hospitalization should be given particular weight in
determining if child find obligations have begun. Hospitalization signals a degree of
severity and concretely interferes with a student’s ability to attend school. See L.J.,
850 F.3d at 1006. Nonetheless, the inquiry of whether a school should reasonably
suspect a child has a disability under IDEA relies on several factors, of which
hospitalization is but one. D.T. clearly struggled with mental health throughout 2017.
Even with hospitalization, however, not enough evidence existed to trigger the
District’s child find duties until his emotional dysfunction manifested in the school
environment in the form of his shooting threat. Prior to November 2017, the District
implemented several interventions to maintain D.T.’s access to FAPE and multiple
non-academic difficulties existed in D.T.’s environment to explain his mental health
struggles. After the shooting threat was made, D.T.’s emotional dysfunction impacted
his ability to receive the benefit of general education and the District fulfilled its
child find duty by acting promptly to assess him for special education services.
IV. CONCLUSION
For those reasons set out above, the order entered by the United States District
Court for the District of Colorado is hereby affirmed.