Cody and New Bedford Public Schools – BSEA # 09-3103



<br /> Cody and New Bedford Public Schools – BSEA # 09-3103<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re Cody1 and New Bedford Public Schools

BSEA# 09-3103

RULING ON MOTIONS TO DISMISS THIS APPEAL

This ruling is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. § 1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.

A motion session was held on March 3, 2011 during which the parties offered oral argument to supplement their written documentation/exhibits and written arguments previously submitted.

BACKGROUND

On November 13, 2008 Parent filed for a BSEA Hearing against the New Bedford Public Schools (NBPS) and the Massachusetts Department of Children and Families (DCF) which had custody of Cody pursuant to a Child In Need of Services (CHINS) petition. Cody had been unilaterally placed by DCF at St. Vincent’s day school and residential program (St. Vincent’s) from August 2006 to November 2008. On December 4, 2008 Parent, NBPS and DCF reached a written agreement: 1) to put all other issues in abeyance; 2) to submit an agreed Statement of Facts (SOF); and to submit respective Motions For Summary Judgment (MSJ) solely on the issue of Cody’s placement pending administrative appeal (stay put rights); and 3) to orally argue their MSJs on December 18, 2008.

On February 9, 2009 the Hearing Officer DENIED Parent’s MSJ and GRANTED NBPS’ MSJ. The Hearing Officer concluded that Cody’s receipt of an education at St. Vincent’s while residing there pursuant to a custodial, non-educational placement by DCF did not confer upon him any stay put rights or placement pending appeal rights to continue attending St. Vincent’s pending this BSEA appeal. The Hearing Officer also concluded that Cody’s education placement pending this BSEA appeal was his last agreed upon Individual Educational Plan (IEP) proposed by NBPS and accepted by Parent. The stipulated SOF and the entire Ruling on Motions for Summary Judgment dated February 9, 2009 is hereby incorporated by reference into this Ruling on Motions To Dismiss This Appeal.

In March 2009 Parent appealed the Rulings On Motions For Summary Judgment to Massachusetts Superior Court. On March 31, 2009 the BSEA scheduled an evidentiary hearing on the merits of Parent’s substantive claim for May 14-15, 2009. On April 30, 2009 Parent agreed to place Cody, pursuant to an IEP proposed by NBPS, at Westside School (Westside), a substantially separate therapeutic placement within NBPS. This IEP covered the period November 26, 2008 through November 25, 2009. Parent consented to this IEP “on a temporary basis until I have information to establish that Westside provides (Cody) with FAPE. The interim placement includes the summer program.” (See S-4) On May 6, 2009 all parties agreed and the BSEA issued an order, placing the BSEA proceedings off calendar until September 2009. On August 31, 2009 the BSEA issued an Order to Show Cause, stating that the case would be dismissed without prejudice unless the BSEA was informed within ten days that the case was still active. On September 3, 2009 Parent’s attorney submitted a letter to the BSEA stating that Cody was still attending a trial placement, more time was necessary, and that the case should remain active and not be dismissed at that time (S-5).

In January 2010, NBPS proposed a second IEP covering the period January 15, 2010 to January 15, 2011, placing Cody at Trinity Academy (formerly Westside School). Parent again consented to this placement on March 1, 2010 stating: “But it is still a trial period placement. We are still assessing this”. (S-6). On May 10, 2010 pursuant to a voluntary placement agreement with Parent, DCF again removed Cody from his home and placed him at a residential placement at NFI Riverside School (Riverside) in Lowell, MA. Cody has remained at Riverside under a Cost Sharing Agreement between NBPS and DCF since that time. (See also S-6.)

From September 2009 to October 2010 Parent took no action regarding the BSEA appeal. Similarly, the BSEA took no further action regarding dismissal of the BSEA appeal because of Parent’s still pending interlocutory appeal to Massachusetts Superior Court and BSEA’s desire not to influence any possible court ruling due to dismissal of the original BSEA appeal. (See Memo To File of Reece Erlichman, BSEA Director.) On October 14, 2010 Parent’s attorney wrote to the BSEA to confirm that the BSEA appeal was still pending, that Parent’s “intent was to keep the case active as the temporary trial placement was being assessed, and because other matters remained outstanding such as the pending Superior Court Action appealing the BSEA’s Summary Judgment ruling on placement pending appeal.” Parent’s attorney continued in her October 14, 2010 letter:

Please accept the current letter as a further update and continued request to maintain the case as active and open. The parties are still litigating the stay put issue on appeal and Parent remains committed to a BSEA trial to adjudicate the underlying merits of the case, namely what ultimate placement is appropriate for the student. Emphasis added. (S-7)

On October 18, 2010 the BSEA issued another Order to Show Cause. On October 21, 2010 Parent’s attorney wrote to the BSEA:

Today’s letter further confirms that Parent’s desire to maintain the case active and open. The parties are litigating the appeal of the BSEA’s stay put decision in Superior Court and hope to argue summary judgment motions in the near future. Since the BSEA matter was bifurcated, the Parent’s intent is still to have the merits of the underlying case adjudicated at the BSEA, but wishes to first resolve the matter of the student’s stay put rights. (S-8)

In November 2010 the BSEA Hearing Officer scheduled a pre-hearing conference call which ultimately took place on December 9, 2010 during which it was ascertained that a Superior Court hearing on Parent’s court appeal was scheduled for March 2, 2011. The parties agreed that NBPS and DCF would file motions to dismiss the BSEA appeal and Parent would file a response after receipt of both NBPS and DCF dismissal motions. NBPS filed its Motion to Dismiss (MTD) with attached exhibits on January 11, 2011. DCF filed its MTD on February 1, 2011. Parent filed her Opposition to both MTDs, with attached exhibits on February 22, 2011. The Hearing Officer scheduled the hearing on the MTDs to take place telephonically on March 3, 2011 – one day after the Superior Court hearing on Parent’s Appeal of the BSEA Ruling.

STATEMENT OF POSITIONS

NBPS POSITION

NBPS moves to dismiss Parent’s BSEA appeal. NBPS’ position is that it is Parent’s obligation to prosecute this appeal and more than two years have passed since Parent filed her BSEA hearing request without any action from Parent to proceed with the prosecution of this case before the BSEA. In the interim, Parent has accepted two IEPs and placements. In light of such circumstances dismissal with prejudice is warranted. NBPS cites Hearing Rules for Special Education Appeals Rule XVIII(B), stating that a party may move for dismissal where the opposing party has failed to prosecute or proceed with the case. NBPS also cites BSEA Rule XVIII(D) which provides that:

A case that has not been re-scheduled, withdrawn, or requested to be scheduled by either party for a period of one year from the original request for hearing shall be dismissed with prejudice.

Finally NBPS argues that Parent has no intention of pursuing the BSEA appeal and the expressed intent to pursue the matter only after the Superior Court action is decided shows that Parent’s only interest in keeping the BSEA matter open is to defeat NBPS’ mootness argument in the Superior Court appeal.

DCF POSITION

DCF also moves to dismiss Parent’s BSEA appeal. DCF argues that Parent’s BSEA Hearing Request, filed in November 2008, requested that the BSEA compel Cody’s placement at St. Vincent’s. DCF argues that even if such request was proper in 2008, more recent events, including Parent’s acceptance of two subsequent IEPs (for Westside/Trinity) have rendered Parent’s original claims moot. DCF argues that Parent, via her voluntary placement agreement with DCF to have Cody residentially placed, has accepted Cody’s DCF custodial placement of Cody at Riverside, and that NBPS is cost-sharing DCF’s Riverside placement (DCF is funding the non-educational costs of Riverside and NBPS is funding the education costs of Riverside) (S-6).

DCF further argues that after Cody’s removal from St. Vincent’s, he was returned home to live with Parent in November 2008. In October 2009 Cody was returned to Parent’s custody and Parent consented to the court dismissal of the CHINS Petition. The CHINS Petition was the vehicle under which DCF had custody of Cody and thereby both the authority and responsibility to place Cody in residential care. By consenting to the dismissal of the CHINS Petition and accepting a return of Cody to her legal custody in October 2009, Parent mooted her original claim against DCF which could not be ordered to make any residential placement for a child who was neither in DCF’s care or custody. DCF argues that Cody’s subsequent return to DCF’s care and custody via a voluntary placement in May 2010 so that he could again be residentially placed was a new placement in residential care. This new placement could give rise to a new hearing request concerning the new placement by DCF at Riverside, but cannot revive the previously mooted issues regarding St. Vincent’s as raised in the original BSEA Hearing Request.

PARENT’S POSITION

Parent opposes both NBPSs’ and DCF’s MTDs the BSEA appeal. Parent argues that the Hearing Officer’s stay-put ruling does not have a preclusive effect on Parent’s remaining claims which allege a constellation of facts that, in totality, show that Cody has been denied FAFE. Parent argues that given the history and circumstances of this case (See BACKGROUND , above) she is not properly subject to dismissal for failure to prosecute and that Parent has done nothing to warrant sanctions under Rule XVIII(B) or (D). Parent argues: 1) that she has not accepted any IEP from NBPS for Cody’s placement at Riverside; 2) that she has no authority over DCF’s placement of Cody at Riverside; 3) that she did not accept Cody’s placement at Riverside; and 4) that she did not fully accept the Westside/Trinity placements for Cody. Therefore, Parent argues that she has not waived any of her claims.

RULING

Based upon the Ruling On Motions For Summary Judgment; the exhibits submitted by NBPS and Parents; the written arguments submitted by the parties; the oral arguments offered by the parties during the motion session; a review of the administrative record of this case; and a review of the applicable law; NBPS, Motion to Dismiss This Appeal is GRANTED and DCF’s Motion to Dismiss This Appeal is GRANTED .

My analysis follows.

On March 29, 2011 in Superior Court Action NO. 2009-1050-B, Justice Linda Giles entered her decision regarding Parent’s appeal of the BSEA Decision On Motion For Summary Judgment. Justice Giles determined that Parent was not entitled to any of the relief which she sought. The Superior Court DENIED Parent’s Motion for Summary Judgment; 2) ALLOWED NBPS’ Motion for Summary Judgment; 3) ALLOWED DCF’s Motion to Dismiss; and 4) DISMISSED Parent’s Court Complaint.

The Superior Court concluded that the BSEA’s decision that the NBPS was Cody’s “stay put” placement pending appeal was correct for the reasons articulated by the BSEA in its Rulings on Motion For Summary Judgment. The Court also concluded that the matter had become moot, thereby rendering any declaratory judgment merely hypothetical because there was no pending case before the BSEA.2 However, the Court further concluded:

Furthermore, in April 2009 the plaintiff agreed to place the Student at Trinity. Then, on May 3, 2010, the DCF assumed custody of the Student and placed him, also with plaintiff’s consent, in a residential facility, Riverside, that offers residential services. Therefore, there is no longer any actual controversy regarding the Student’s educational placement, especially in view of the fact that his best interests may have changed dramatically in the two and a half years since his removal from St. Vincent’s. In addition, there is no reason to believe that the issues presented here would evade traditional appellate review in the future. S.C.A. No. 2009-1050-B p. 5-6.

The Court also concluded that:

The BSEA hearing officer had no authority to order the DCF to hold a fair hearing as the DCF’s regulations do not provide for a right to contest a specific placement decision made by the agency for a child in its custody. S.C.A. No. 2009-1050-B p 6-7.

I now turn to the relief sought in Parent’s original BSEA Hearing Request, filed November 14, 2008. Essentially parent : 1) sought to compel NBPS and DCF to maintain Cody’s residential placement at St. Vincent’s; and 2) sought NBPS to provide Cody with a free and appropriate public education (FAPE), requesting that Cody remain to be educated at St. Vincent’s Day Program. Parent’s Hearing Request stated that all parties agreed that Cody no longer required residential services as part of his program and could live at home. (See S-2.)

BSEA’s Ruling On Motions For Summary Judgment has already dealt with Issue #1, finding that Cody was not entitled to placement pending appeal/stay-put rights at St. Vincent’s. The Superior Court Decision, cited above, upholds the BSEA Ruling. Thus Issue #1 has been fully adjudicated and is now moot.

As stated under BACKGROUND , above, Parent then accepted two successive IEPs/placements for Cody at Westside/Trinity covering November 2008 through January 2011. Parent characterized the first IEP as a temporary placement. However, Cody was educated under this IEP/placement until it expired, and Parent never rejected it, revoked her acceptance of it, or requested to proceed to hearing regarding it. Parent characterized the second IEP as a trial placement. Two months later, Cody was returned to DCF custody. This second IEP expired in January 2011. Similar to the first IEP, during the life of the second IEP it was never rejected, consent revoked, nor was there any request to proceed to hearing regarding this IEP either.

In summary, Issue #2 of Parent’s 2008 Hearing Request, requested that Cody be educated as a day student at St. Vincent’s and funded by NBPS.3 The Hearing Request did not address Cody’s two subsequent IEPs/placements at Westside/Trinity. Parent accepted those two subsequent IEPs/placement. Parent has never amended her Hearing Request to include the Westside/Trinity IEPs/placements. The Westside/Trinity IEPs/placements have now both expired. Two and a half years have passed. Parent has again voluntarily relinquished custody of Cody to DCF. DCF has placed Cody residentially at Riverside and NBPS is funding the educational costs of such placement. Parent has not amended the Hearing Request to include Cody’s placement at Riverside. There are, quite simply, no issues for the BSEA to adjudicate. I conclude there is no current case or controversy and that all issues have become moot. (See also Superior Court Ruling, above.)

Both the courts and the BSEA have repeated held that Hearing Officers are precluded from re-visiting/re-opening accepted IEPs that have expired, where Parents have chosen to accept the IEP or IEPs and Parents have not rejected the IEPs during the term of such IEPs. See Chris A. v Stow Public Schools 16 EHLR 1304 (MA 1990), affirmed on appeal Amann v Stow School System 982 F. 2d 644 at 651 (1992). See also Burlington v Department of Education 471 U.S. 359 at 373 (1985); Amherst-Pelham Regional School District v Department of Education 376 Mass 480 at 483 (1978); Manchester School District v Christopher B. 19 IDELR 143 at 147 (DNH); In re: Marblehead Public Schools 8 MSER 176 at 180 (2002); In re: Fairhaven Public Schools 12 MSER 95 (2006); In re Hopkinton Public Schools 13 MSER 234 (2007); and In re: Hampden-Wilbraham Regional School District 14 MSER 290 (2008), affirmed an appeal. Joseph Doe v Hampden-Wilbraham Regional School District et al. U.S. District Court-Massachusetts, Civil Action No. 08 cv 12094-NG (2010).

Further, there are no specific facts/issues from the original, unamended Hearing Request, filed 2 ½ years ago, that bear any relationship to the current situation, that impact upon Cody’s current situation, or that impact upon Cody’s current receipt of FAPE. DCF was unilaterally funding Cody’s placement at St. Vincent’s then. DCF/NBPS are cost sharing Cody’s placement at Riverside now. Cody had been out of NBPS and at St. Vincent’s for over two years then. Cody has since been returned to Parent’s custody and been educated for one and a half years within NBPS before again being voluntarily placed with DCF for residential/custodial purposes. Cody no longer required residential services as part of his program and could live at home then. Cody has now again been voluntarily placed with DCF which has custodial/residentially placed him at Riverside. Therefore, any adjudication with respect to the facts/issues/situation existing in 2008 would do nothing to impact Cody’s situation today. (See also Superior Court’s Ruling, above.)

Additionally, the court has ruled and the Hearing Officer concurs, that the BSEA has no authority to order DCF to hold a fair hearing under DCF regulations because DCF regulations do not provide for a right to a DCF fair hearing to contest a specific placement decision made by DCF for a student in its custody. (See Superior Court Ruling, above.)

Clearly, if Parent has a current issue regarding Cody’s current educational placement, she may request a new BSEA hearing. However, I note that the BSEA has no authority to order DCF to place a student in its custody in a specific residential placement, since DCF makes such placements for custodial reasons within its purview, not for educational reasons, which are within the purview of the school district and BSEA.

ORDER

1. NBPS’ Motion To Dismiss This Appeal is GRANTED .

2. DCF’s Motion To Dismiss This Appeal is GRANTED .

3. BSEA #09-3103 is DISMISSED WITH PREJUDICE .

By the Hearing Officer,

___________________________

Dated: May 11, 2011

Raymond Oliver


1

Cody is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.


2

The case had remained open at the BSEA to prevent this very thing from happening.


3

However, it must be noted that the major focus of Parent’s Hearing Request was the placement pending appeal issue and continued funding by NBPS and DCF of Cody’s residential placement at St. Vincent’s.


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