G.D. ex rel. Dien Do v. Torrance Unified School District

857 F. Supp. 2d 953, 2012 WL 751014, 2012 U.S. Dist. LEXIS 30814
CourtDistrict Court, C.D. California
DecidedMarch 8, 2012
DocketCase No. CV 11-2463-JFW (JCx)
StatusPublished
Cited by1 cases

This text of 857 F. Supp. 2d 953 (G.D. ex rel. Dien Do v. Torrance Unified School District) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.D. ex rel. Dien Do v. Torrance Unified School District, 857 F. Supp. 2d 953, 2012 WL 751014, 2012 U.S. Dist. LEXIS 30814 (C.D. Cal. 2012).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER

JOHN F. WALTER, District Judge.

This action came on for court trial on December 20, 2011. Bruce Bothwell of the Law Offices of Bruce E. Bothwell appeared for Plaintiff G.D., a minor, by and through his Guardians Ad Litem Dien Do and Hong Dang (“G.D.”) and Sharon A. Watt of Filarsky and Watt appeared for Defendant Torrance Unified School District (the “District”). On December 29, 2011, the parties filed their proposed Post-Trial Findings of Facts and Conclusions of Law. On January 10, 2012, the parties filed Post-Trial Briefs and a Joint Statement Regarding the proposed Post-Trial Findings of Fact and Conclusions of Law.

After considering the evidence, briefs and argument of counsel, the Court makes the following findings of fact and conclusions of law1:

I. FINDINGS OF FACT

A. Procedural History

On August 6, 2010, Dien Do and Hong Dang (collectively, “Parents”), on behalf of [955]*955their son, G.D., filed a request for a due process hearing (“Request”) with the California Office of Administrative Hearings. In their Request, they alleged that the April 28, 2010 individualized education program (“IEP”) did not meet the requirements of the Individuals with Disability Education Act (“IDEA”) because it did not offer an appropriate school-based behavior program, a home-based behavior program, placement in the least restrictive environment (“LRE”), a program and services for the 2010 extended school year (“ESY”), and goals proposed by Behavioral Education for Children with Autism (“BECA”), a nonpublic agency. The Request also alleged that the IEP was deficient because of the inadequacy of the speech and language therapy that was offered in the April 28, 2010 IEP, but the Parents withdrew that issue at the due process hearing.

The hearing on the Request was held on November 29 and 30, 2010 and December 2 and 3, 2010. The hearing transcript demonstrates that the Administrative Law Judge (“ALJ”) was fully engaged in the hearing and questioned the witnesses to ensure that the record contained complete information and to ensure that she fully understood the testimony. On January 24, 2011, ALJ issued her thirty-four page Decision, which found in favor of the District on all issues and denied G.D.’s requested relief. In her Decision, the ALJ extensively reviewed the law pertaining to a school district’s duty in offering a free appropriate public education (“FAPE”). For example, in her summary of the law, the ALJ discussed a school district’s duty to provide a basic floor of opportunity, the evaluation of a district’s offer of FAPE, the duties of the IEP team, the methodology used to evaluate the IEP, and the prerogative of a district to select programs, service providers, and methodology for teaching and evaluating G.D.’s skill level.

G.D. appealed the ALJ’s Decision to this Court and alleges that the ALJ erred by basing her decision on the appropriateness of the program proposed by the Parents rather than by determining the appropriateness of the District’s offer of a FAPE that did not include classroom aide support, appropriate school-based behavior support, or appropriate home-based services; by finding that the measurable annual goals were appropriate; by finding that the program offered by the District was in the LRE; and by finding that G.D. did not require the ESY program. In his December 6, 2011 Opening Trial Brief, G.D. withdrew from consideration by this Court the issues of whether the April 28, 2010 IEP offered placement in the LRE and whether ESY should have been offered.

B. Relevant Background Facts

G.D. was born on May 3, 2004, and resides with his Parents within the District. Parents became concerned about G.D.’s development when G.D. was four years old and attending a general education preschool at the El Camino College Child Development Center (“El Camino”). On March 30, 2009, Parents contacted District personnel and expressed their concern about G.D.’s development and made a written request for services.

1. April 29, 2009 IEP

On April 14, 2009, District personnel, which included school psychologist Susan Lee, special education teacher Jennifer Fisher, speech and language pathologist Malia Miyamoto, and ASSISTT2 teacher [956]*956Danielle Colin-Wiertz, conducted an assessment of G.D. in order to determine whether he was an individual with exceptional needs. As part of the District’s assessment, Ms. Lee, Ms. Fisher, Ms. Miyamoto, and Ms. Colin-Wiertz observed G.D. at El Camino. Ms. Lee, who has been a credentialed school psychologist since 1990, a special education teacher from 1980 to 1990, and has conducted over 600 assessments of students, observed G.D. for approximately one hour. During that time, Ms. Lee observed G.D. sitting comfortably next to other children, interacting with other children, looking around with an awareness that his peers were present, and observing the social situation. According to Ms. Lee, G.D. did not require any more prompting in following the routine and playing with toys appropriately than other El Camino students, and G.D. was able to follow the rules and satisfactorily transition within the classroom setting from area to area. Ms. Fisher, who has been a special education teacher for approximately 10 years, a paraeducator for approximately one year, and has conducted approximately 80, assessments of preschoolers, observed G.D. and completed a written evaluation entitled “Fast Facts for G.D.” In her written remarks, Ms. Fisher noted that G.D. was smart, friendly, persistent, curious, knew letters and numbers, was able to write his name, had preacademic skills that were age appropriate or greater, attended to preferred tasks for up to 20 minutes, sat on the carpet, attempted to participate during circle time, engaged cooperatively with adults, and verbally communicated his wants and needs. Ms. Fisher also reported that G.D. had delayed play skills, which were at the parallel play stage, and may have needed redirection when he refused to work. Ms. Fisher concluded that G.D. did not have significant delays in social skills with adults, but Ms. Fisher did have concerns about his social skills with his peers. For example, Ms. Fisher observed that G.D. required prompting to come to the rug but she did not remember any instance during which G.D. was noncompliant with an adult directive after such prompting. However, she also observed that G.D. would not do what another child asked him to do.

In addition to the El Camino observations and assessments, Ms. Lee, Ms. Fisher, Ms. Miyamoto, and Ms. ColinWiertz assessed G.D. at a District school on April 14, 2009. During that assessment, G.D. was very compliant, performed the requested tasks with minimal tangible reinforcement, and his attention was good despite the very involved nature of the assessment.

The results of the District’s assessments were reported in an April 29, 2009 Trans-disciplinary Preschool Assessment Report (“Report”), which concluded that G.D. exhibited autistic-like behavior and demonstrated concept development, pre-academic, fine motor, and self-help skills that were unevenly developed but that were at or above age-appropriate levels. The Report also concluded that G.D. had age-appropriate receptive language skills but was delayed in his expressive language, pragmatic, gross motor, play, and social skills.

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Bluebook (online)
857 F. Supp. 2d 953, 2012 WL 751014, 2012 U.S. Dist. LEXIS 30814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gd-ex-rel-dien-do-v-torrance-unified-school-district-cacd-2012.