Joseph Park, by and Through His Guardian Ad Litem, Kyung Hee Park Kyung Hee Park v. Anaheim Union High School District Greater Anaheim Selpa

444 F.3d 1149, 2006 U.S. App. LEXIS 9575

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2006
• Docket: 18-72269
• Status: Published

Opinions

BEEZER, Circuit Judge.

Joseph Park (“Joseph”) and his mother, Kyung Hee Park, bring this action against the Anaheim Union High School District (“District”) and the Greater Anaheim Special Education Local Plan Area. The complaint alleges that defendants have failed to comply with procedural and substantive requirements of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.¹ The Parks expressly challenge the award of compensatory services and the denial of attorney’s fees. The district court affirmed the decisions of the Hearing Officer of the California Special Education Hearing Office in part and modified minor details in part.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I

Joseph was born in 1990 with a genetic defect known as cri du chat, cry of the cat, or 5p-syndrome. Deficits attributed to his disability include developmental delay, deficient cognitive ability, poor muscle tone, speech and language delay, gross and fine motor delay, difficulty in muscle training and coordination, difficulty assimilating toilet training, self-care difficulty, drooling and behavioral difficulties. Joseph has below average cognitive ability; his I.Q. is below 70. His family’s primary language is Korean.

Joseph entered the Greater Anaheim public school district as a special day class student at age three. He attended Salk Elementary School within the Magnolia Elementary School District. A satisfactory individualized education plan was adopted and implemented for him. The Magnolia District annually reviewed the individualized education plan.

In March 2002, the Magnolia District conducted a triennial review. Members of the Anaheim District participated to facilitate Joseph’s anticipated transition at the end of the school year. An audiology assessment was scheduled during this review. An audiologist administered a HEAR Kit test as part of the assessment. The audiologist could not reconcile inconsistent results because of a buildup of cerumen (earwax) in the subject’s ear canal. The district informed Joseph’s mother that it was her obligation to remove the cerumen or have it removed by a medical professional before the assessment could be completed. The cerumen was not removed and the assessment was never completed.

A special education consultant, qualified to administer certain vision tests, conducted a vision assessment and found that Joseph’s vision was not hindering his education. The Parks believe that Joseph is afflicted with double vision and optic nerve damage which the assessment failed to identify.

Based in part on the completed assessments, the Anaheim District and Special Education Local Plan Area recommended that Joseph be placed in a special education school for the 2001-2002 extended school year and the 2002-2003 school year. Joseph’s parents contested the recommended placement and had Joseph attend a summer camp during the 2001-2002 extended school year. Joseph’s mother requested new psychological, occupational therapy, physical therapy and speech and language assessments. The requested assessments took place over the summer and during the fall. There were no further attempts to administer the audiology and vision assessments.

In June 2002, the Parks requested a due process hearing naming Magnolia and Anaheim Districts as respondents.² Joseph attended a special day class at Lexington Junior High School pursuant to a confidential mediated interim agreement. Joseph’s mother, along with her attorney and a translator, participated in October and November meetings to develop an individualized education plan, which the Anaheim District implemented in November 2002. The District conducted a functional behavior assessment and then created a proposed behavior intervention plan that it presented at a November individualized education plan meeting. The behavior intervention plan was not implemented because Joseph’s mother contested the program’s suitability.

A Hearing Officer of the California Special Education Hearing Office conducted a full hearing with both sides presenting witnesses and evidence. The Hearing Officer found: (1) the District conducted appropriate assessments and tested Joseph in all areas of suspected disability, (2) Joseph was denied a free and appropriate public education for the 2001-2002 extended school year because the District failed to establish that it made a clear written offer of placement at the Hope School for that period, (3) Joseph was denied a free and appropriate public education from the first week of September through November 6, 2002 because the individualized education plan had not been implemented, (4) the proposed individualized education plan, in place as of November 6, 2002, was appropriate but the District needed to add self-help goals for buttoning, zipping and toilet training, (5) the District must provide compensatory education services to Joseph’s teachers for Joseph’s benefit and (6) the District prevailed on every issue but provision of a free and appropriate public education for extended school year 2001-2002 and September through November 2002 and compensatory services. The parties are in agreement on other issues.

Appellants brought suit in district court. The parties filed cross-motions for summary judgment and after a hearing the court entered final judgment. Appellants now challenge the following district court determinations: (1) Joseph was not prejudiced by any of the alleged violations of the Individuals with Disabilities Education Act’s procedural safeguards, (2) the individualized education plan implemented in November 2002 does not deny Joseph a free and appropriate public education, (3) compensatory education services were properly awarded directly to the school teachers and (4) the District is not required to pay attorney’s fees to Appellants for the costs of the due process hearing.

II

The Individuals with Disabilities Education Act is satisfied if the State complies with the Act’s procedures and an “individualized educational program developed through the Act’s procedures [is] reasonably calculated to enable the child to receive educational benefits[J” Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 890 (9th Cir.2001) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).

We accord the Hearing Officer’s determinations due weight because they were thorough and careful: the hearing lasted over eight days, the Hearing Officer was engaged in the hearing and questioned the witnesses to ensure the record contained complete information and that he understood the testimony. The decision entered by the Hearing Officer contains a complete factual background as well as a discrete analysis supporting the ultimate conclusions. See Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.1996).

A

Individuals with Disabilities Education Act relief is appropriate if procedural violations deprive Joseph of an educational opportunity (prejudice) or seriously infringe his parents’ opportunity to participate in the formulation of the individualized education plan. W.G. v. Bd. of Trs. of Target Range Sch. Dist., No. 23, 960 F.2d 1479, 1484 (9th Cir.1992) (“Target Range ”). Appellants assert procedural violations which caused a denial of a free and appropriate public education. These include: (1) failure to undertake a medical examination for diagnostic or evaluation purposes leading to a completion of the audiology assessment, (2) failure to address the suspected vision disorder, (3) failure to consult or invite persons most knowledgeable about Joseph to assist in developing the individualized education plan, (4) development of the behavior intervention plan without considering the views of the individualized education plan team or Joseph’s parents and (5) failure to assess Joseph using his primary language when it was feasible to do so.

First, California Education Code § 56320© requires a student be tested in all areas related to the suspected disability. Cal. Educ.Code § 56320©. The District undertook an audiology assessment and administered a HEAR Kit test. An excessive buildup of cerumen (earwax) prevented the audiologist from reconciling inconsistent results. The District fulfilled its duty by notifying Joseph’s mother (who was present and later reminded) that it was her obligation to remove the cerumen or have it removed by a medical professional as a condition for test completion. There was no procedural violation.

Second, Appellants allege the vision assessment was flawed because the special education consultant was unqualified to assess for double vision or optic nerve damage. The District is not required to assess double vision or optic nerve damage if it does not affect a child’s educational needs. See Cal. Educ.Code § 56320. Because the District’s consultant found that Joseph’s vision was not hindering his education, there was no procedural violation.

Third, Appellants allege the District violated their procedural rights and denied Joseph an educational opportunity. The Appellants believe that failure to include and consider all available information from people knowledgeable about Joseph in the development of the individualized education plan violated the Act. Joseph has received that to which he is entitled. An individualized education plan has been developed for him as a result of his records, observations, assessments by qualified individuals and participation by his parents. See 20 U.S.C. § 1415(b)(1); Cal. Educ. Code § 56320(g); Target Range, 960 F.2d at 1484; 34 C.F.R. § 300.533(a)(1). A qualified administrator conducted a thorough hearing to review the individual education plan and, after considering testimony from Joseph’s mother and the child’s personal physician, largely approved of the District’s proposal but supplemented the plan with further goals. See 20 U.S.C. § 1414(d)(l)(B)(vi). There was no procedural violation.

Fourth, the District did not violate the Individuals with Disabilities Education Act’s procedures when it conducted a suitable functional behavioral assessment and subsequently proposed a behavior intervention plan. See 34 C.F.R. § 300.346. The individualized education plan team and Joseph’s parents had an opportunity to discuss the plan when it was proposed. Joseph’s mother exercised her rights by contesting the behavior intervention plan and then challenging the plan through the statutory procedures. There was no procedural violation.

Fifth, Appellants allege the District’s failure to assess Joseph in his primary language when it was feasible to do so was a procedural error that caused Joseph prejudice. The Individuals with Disabilities Education Act requires assessment materials be “provided and administered in the child’s native language or other mode of communication, unless it is not feasible to do so.” 20 U.S.C. § 1414(b)(3)(A)(ii) (emphasis added); accord Cal. Educ.Code § 56320(b)(1); 34 C.F.R. § 300.532; CaLCode Regs. tit. 5, § 3023(a). Five assessments are at issue: speech and language, occupational therapy, physical therapy, vision and psychological. Joseph’s mother consented to the assessment plan, which specified that the speech and language assessment was to be conducted in English. There was no procedural violation. The occupational therapy, physical therapy and vision assessments were nonverbal. There was no procedural violation. The psychological assessment was largely nonverbal. A Korean interpreter was present during the verbal portions of the assessment but direct verbal cues were not given in Korean. The Hearing Officer agreed with the psychologist that giving Korean cues would have disturbed the validity of the test; native language administration was not feasible. There was no procedural violation.³

B

Joseph has received a free and appropriate education if his instruction (1) addresses his unique needs, (2) provides adequate support services so he can take advantage of the educational opportunities and (3) is in accord with the individualized education program. Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Wartenberg, 59 F.3d 884, 893 (9th Cir.1995) (citing Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034). The parties do not dispute Joseph’s needs or that the instruction is in accord with the individualized education plan that has been developed for Joseph.. Appellants contend that the District failed to provide adequate support services to allow Joseph to meet the proposed educational goals. The Hearing Officer carefully considered testimony by the District and Appellants on the issue of related services. Though Appellants’ witnesses testified that related therapy services could benefit Joseph, the District presented evidence that such services were not necessary for Joseph to reach the individualized education plan goals. The Hearing Officer’s decision partially discredited Appellants’ witnesses for using unreliable or invalid methods of testing. The Hearing Officer also agreed with the District that Joseph could achieve the goals of the individualized education plan through alternative communications, ongoing practice at home with his mother and ongoing adaptive physical education. Because we accord the Hearing Officer’s findings due weight and the evidence.does not conclusively demonstrate related therapy services are necessary to ensure Joseph receives “some educational benefit,” we agree that there was no substantive violation of the Individuals with Disabilities Education Act. Rowley, 458 U.S. at 198-201, 102 S.Ct. 3034.

Ill

Compensatory education services can be awarded as appropriate equitable relief. 20 U.S.C. § 1415(i)(2)(B)(iii) (“shall grant such relief as the court determines appropriate”); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1496-97 (9th Cir.1994). “Appropriate relief is relief designed to ensure the student is appropriately educated within the meaning of the Individuals with Disabilities Education Act.” Parents of Student W., 31 F.3d at 1497. The courts have discretion on how to craft the relief and “[t]here is no obligation to provide a day-for-day compensation for time missed.” Id. We review the Hearing Officer’s and the district court’s award of compensatory education services for abuse of discretion. Id. at 1496.

After balancing the parties’ conduct, the Hearing Officer concluded that while it was appropriate for Joseph to receive compensatory education it would be speculative to award services directly to Joseph. The testimony was unclear whether Joseph would benefit from direct compensatory education. The Hearing Officer decided to direct that the services be made available to Joseph’s special education teacher in the amount of thirty minutes per week for the remainder of the 2002-2003 school year and to his Anaheim Union High School District teacher for the 2002-2003 extended school year. The Hearing Officer ordered that the services address the implementation of the individualized education plan’s self-help goals and objectives. The district court affirmed the relief as ordered for Joseph’s unique needs and the District’s conduct.

The award was designed to compensate Joseph for the District’s violations by better training his teachers to meet Joseph’s particular needs. The Individuals with Disabilities Education Act does not require compensatory education services to be awarded directly to the student. The Hearing Officer and the district court did not abuse their discretion when they awarded compensatory education services to Joseph in the form of individualized instruction for Joseph’s teachers that addressed the implementation of the individualized education plan’s self-help goals and objectives.

IV

“[T]he court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.” 20 U.S.C. § 1415(i)(3)(B). Because the determination on an award of attorney’s fees is solely with the district court, we review for abuse of discretion. Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. 374 F.3d 857, 861 (9th Cir.2004).

The district court did not abuse its discretion by finding that the District prevailed on “all significant issues” and the Appellants prevailed only “on some minor issues.” Though Appellants obtained some relief (a finding of denial of a free and appropriate public education for one extended school year and one period of less than three months, limited compensatory services awarded directly to the teachers, supplemented self-help goals and requiring the District to conduct a new functional behavior assessment and implement a behavior intervention plan), the District prevailed on all procedural violations issues and the larger substantive free and appropriate public education issue (the proposed individualized education plan of November 2002). The district court did not abuse its discretion by determining the Appellants’ relief was de minimis. See Shapiro, 374 F.3d at 865 (citing Parents of Student W., 31 F.3d at 1498). Though the district court might have been within its discretion to award Appellants attorney’s fees, we cannot say the district court abused its discretion in not awarding fees.

AFFIRMED.

1 . All references and citations to the Individuals with Disabilities Education Act refer to the statute as in force at the time period in dispute (2001-2002).

2 . Appellants later settled with the Magnolia District.

3 . Even if we disagreed with the Hearing Officer and assumed without deciding that it was feasible (i.e., not detrimental to the assessment’s validity) to give verbal cues in Korean, this limited portion of the psychological assessment would be the only evidence of procedural error. Such a procedural violation entitles Joseph to relief only if Appellants show it caused Joseph prejudice. See Target Range, 960 F.2d at 1484. Appellants offer no evidence that Joseph did not understand the cues given. There is no evidence that the results of the psychological assessment caused Joseph to be denied a suitable educational opportunity.