N.F. v. Antioch Unified School Dist.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2022
• Docket: 21-15780
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 2 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

N.F., a minor, by and through his guardian No. 21-15780 ad litem Melanie Flyte, D.C. No. 4:18-cv-04731-KAW Plaintiff-Appellant,

v. MEMORANDUM*

ANTIOCH UNIFIED SCHOOL DISTRICT, A Local Educational Agency,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Kandis A. Westmore, Magistrate Judge, Presiding

Argued and Submitted April 13, 2022 San Francisco, California

Before: SILER,** W. FLETCHER, and M. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Petitioner N.F. appeals from the district court’s grant of summary judgment

in favor of the Antioch Unified School District (“AUSD”). We have jurisdiction

under 28 U.S.C. § 1291.

N.F. is an elementary school student who resided at all relevant times in the

boundaries of AUSD. In August 2017, N.F. filed a due process hearing request

with the Office of Administrative Hearings and named AUSD as the respondent.

After ten days of hearings and reviewing the evidence presented, the

Administrative Law Judge (“ALJ”) found in favor of AUSD on all the issues raised

by N.F. N.F. filed an action seeking review of the ALJ’s decision in the Northern

District of California. The district court denied N.F.’s motion for summary

judgment and granted AUSD’s cross-motion for summary judgment. N.F. timely

appealed.

We review the district court’s findings of fact for clear error, and we review

questions of law and mixed questions of fact and law de novo. N.B. v. Hellgate

Elementary Sch. Dist. ex rel. Bd. of Dirs., 541 F.3d 1202, 1207 (9th Cir. 2008).

We accord administrative rulings in Individuals with Disabilities Education Act

(“IDEA”) cases “due weight,” Bd. Of Educ. v. Rowley, 458 U.S. 176, 206 (1982),

with greater deference given where the findings are “thorough and careful,” R.B. ex

2 rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007). The

ALJ’s thorough and careful decision in this case is entitled to substantial deference.

We grant N.F.’s requests for judicial notice of a supplemental document

(Dkt. Entries 13, 35).

1. N.F. contends that AUSD violated IDEA by failing to create records

essential to address his behavioral needs. The district court found that, to the

extent AUSD was required to record behavioral data, the record establishes that it

did. It found that N.F.’s Individualized Education Program (“IEP”) team collected

behavioral data for most of the days that he attended AUSD. That finding was not

clearly erroneous.

2. N.F. contends that AUSD did not sufficiently provide individualized

behavioral services to address his IEP goals and objectives. N.F. has not shown

that AUSD failed to implement his behavior intervention plan (“BIP”) or to

provide sufficient behavioral services. Multiple members of N.F.’s IEP team

testified that they implemented his BIP. The rapid increase in N.F.’s dysregulated

behaviors at the end of 2017 is, standing alone, insufficient evidence to show that

AUSD failed to provide behavioral services. If anything, N.F.’s behaviors

improved significantly while he attended AUSD.

3 3. N.F. contends that AUSD denied him a free appropriate public education

(“FAPE”) by failing to assess him in speech and language prior to May 2016.

IDEA requires local educational agencies to assess children “in all areas of

suspected disability,” 20 U.S.C. § 1414(b)(3)(B), “at least once every 3 years,” id.

§ 1414(a)(2)(B). An assessment must also be conducted if the school district

“determines that the educational or related services needs . . . of the child warrant a

reevaluation,” or “if the child’s parents or teacher requests a reevaluation.” Id.

§ 1414(a)(2)(A).

AUSD fulfilled these requirements. N.F. was assessed in speech and

language in 2014, so AUSD was not required to conduct another assessment until

three years later. As soon as N.F.’s parents requested an updated assessment,

AUSD offered it to them. It commenced the assessment within two months of

receiving N.F.’s parents’ signed consent to the assessment, and further delays in

the assessment were outside of AUSD’s control. Further, N.F. offers no evidence

that AUSD had notice that his educational needs necessitated an earlier speech and

language assessment.

4. N.F. contends that AUSD denied him a FAPE by failing to conduct

another autism assessment after it learned about Dr. Kim Miller’s autism diagnosis.

In spring 2016, Dr. Valerie Lopes, acting on behalf of AUSD, determined that N.F.

4 did not fulfill the California educational criteria for autism. In fall 2016, N.F.’s

parents hired Miller to examine N.F., and Miller diagnosed him with Autism

Spectrum Disorder. On January 1, 2017, Miller signed a written report concluding

that N.F. was on the autism spectrum.

Although Miller’s report was available to N.F.’s parents in January 2017,

they did not inform AUSD of Miller’s diagnosis until October 3, 2017. At the

October 3, 2017, IEP meeting, N.F.’s parents did not request a new evaluation, and

they agreed to review N.F.’s BIP at an annual IEP meeting scheduled for

November. In November and again on December 15, 2017, AUSD attempted to

conduct this annual IEP meeting. N.F.’s parents were unavailable for the

November meeting, and declined to conduct an IEP review at the December

meeting. N.F. was then suspended for multiple days, and, on January 11, 2018,

AUSD filed before the Office of Administrative Hearings a request for an

expedited due process hearing to move N.F. to an interim placement. In February

2018, N.F.’s parents disenrolled him from AUSD. Given this sequence of events,

AUSD did not commit an actionable violation of IDEA by failing to re-assess N.F.

for autism between October 2017, when his parents informed the school district

about Miller’s diagnosis, and February 2018, when N.F. was disenrolled from

AUSD. See Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877,

5 892 (9th Cir. 2001) (conduct that does not result in denial of a FAPE is non-

actionable).

AFFIRMED.