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Horen v. Board of Education of City of Toledo Public School District

United States District Court, Sixth Circuit

May 31, 2013

Glenn S. Horen, etc., Plaintiff,
v.
Board of Education of the City of Toledo Public School District, et al., Defendants.

ORDER

JAMES G. CARR, District Judge.

This is one of a series of cases brought on behalf of DH, a multi-handicapped child (now fourteen years of age) in which her parents, suing pro se, [1] assert that defendant Board of Education of the City of Toledo Public Schools (TPS) has since 2006 deprived their daughter of the free appropriate education (FAPE) to which she is entitled under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. ยง 1400, et. seq., and for violations of other federal and state statutes.

Pending are plaintiff's motion for partial summary judgment (Doc. 28) and defendants' motion for summary judgment (Doc. 33).[2] For the reasons that follow, I deny plaintiff's motion and grant defendants' motion.

Background

There are essentially two issues in this case on which all else depends. First, why has DH not been enrolled in TPS since the end of the 2005-06 school year. Second, whether her placement in EduCare, a child care/education center owned by the University of Toledo and used by TPS for placement of children with disabilities, was an appropriate placement for DH as of the start of the 2006-07 school year.

I find that, on the basis of undisputed (or insufficiently disputed) material facts that DH's parents are solely responsible for DH's failure to attend school. I also find that, as of the beginning of the 2006-07 school term, EduCare was an appropriate placement.[3]

DH attended EduCare as a pre-school pupil beginning with the 2001-02 school year. As of the 2003-04 school year, DH was, in accordance with her Individual Education Plans (IEPs) in a self-contained classroom for pupils with multiple disabilities at EduCare. She attended that facility from then through the 2005-06 term.

Before the start of the 2006-07 school year, TPS decided to transfer DH to Larchmont Elementary School. Her parents opposed that transfer. On August 30, 2006, they filed their first due process administrative complaint against TPS, seeking to have their daughter remain at EduCare, rather than being assigned to Larchmont.

On receiving the complaint, defendant Thom Billau, then Director of Student Services for TPS, notified the parents he was holding places open for DH at both EduCare and Larchmont. (Ex. 049029).[4] In other words, as of that date, had the parents been willing to do so, DH could have been re-enrolled in EduCare.[5]

The parents did not enroll DH in EduCare. Unquestionably, they would have been able to do so in August, 2006. Although, as discussed below, TPS notified the parents on August 13, 2008, that DH had been withdrawn retroactively from TPS as of August 29, 2006, the record makes manifestly clear that the parents could have returned DH to EduCare as a pupil in good standing at the beginning of the 2006-07 school term.

Initial Hearing Officer (IHO) Sprenger, following a hearing on the parents' administrative complaint, issued an order stating, inter alia; that:

5 The least restrictive environment for the student's educational instruction is the Educare Center. Once the student is back in school, the parents and the IEP team will call an interim meeting to determine the present levels of performance of the student and short term objectives until such time the consolidated meeting above meets and develops a new IEP.
6. The student shall be placed in the MH classroom of Mary [sic] Martin or whoever is teaching her class when the student returns to school. The age of the students in the classroom will comply with OAC XXXX-XX-XX(G)(3)(e)(i).

(Ex. M, p. 61).

On appeal to this court, I upheld the Administrative Order. Bd. of Educ.of the Toledo City Sch. Dist. v. Horen, 2010 WL 3522373, *29 (N.D. Ohio), aff'd, 10-4238 (6th Cir. May 26, 2011) ( Horen II ). In the meantime, the parents did not comply with the placement at EduCare that the IHO had ordered.

Contrary to plaintiff's contention in this case (which are that TPS had withdrawn DH as of August 29, 2006), the record shows repeated efforts by the District to have her returned to EduCare. On February 16, 2007, TPS wrote to the parents, calling their attention to the failure to return DH to school. The letter asked, "Please advise whether [DH] will resume attending school at Educare, and if so, when that will occur." In addition, the letter notified the parents:

At this point, as the child is not attending school at TPS, and TPS has neither been informed that she is attending another school nor received any paperwork indicating that she is being homeschooled, she is considered truant under Board Policy JEDA (a copy will be provided if you request). The District does not desire to pursue truancy measures, but must know whether [DH] is being educated. Please advise if you have made alternate arrangements for her education or when she will begin attending school in the placement ordered by the IHO.

(Tr. 557-58; Ex. 0, TOO102).

Instead of complying either with the IHO's order or the District's request to return DH to school, the parents sent an e-mail asserting that TPS was threatening them with truancy proceedings, DH was not being home-schooled, and she was being denied an FAPE. The parents also stated, however, that they looked forward to an interim IEP meeting. (Ex. 0, TOOI03-105).

On February 19, 2007, TPS e-mailed the parents, asking them to return DH to school so that staff could assess her present levels of performance before convening the interim IEP meeting. (Tr. 558-559; Ex. 0, TOO106). In response, the parents said DH would not return to school without a current IEP. They claimed they had safety concerns, but they did not describe what those concerns were. (Exh. O, T00112).

The parents thereby created a Catch-22 situation: they would not return their daughter even for a performance evaluation, which, in turn, would facilitate the effectiveness of the interim IEP meeting - but they also asserted they would not return her without an IEP.

In making this demand, the parents were ignoring and preventing accomplishment of the purpose of an IEP as highlighted in several cases. See, e.g., D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir.2010) (citations omitted) (emphasis supplied) ("An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services.").

This was the first in a series of situations in which the parents, in response to TPS offers to assist in formulating in IEP, would respond with inappropriate demands that the District could not meet.

On February 20-21, 2007, TPS, trying to comply with the IHO order, proposed:

1. [DH] will attend school pursuant to the IRO's order on Wednesday and/or Thursday, February 21st and/or 22nd, so that school personnel may ascertain her present levels of performance.
2. In order to respond to your concerns regarding her safety prior to the development of the interim IEP, during the period of attendance described above, either parent or another caregiver designated by you may remain in school to monitor and observe [DH].
3. Following the attendance described above, TPS will convene an IEP team meeting on Friday, February 23rd, at 2:30 p.m.[a time the parents had suggested for an IEP meeting] for the purpose of developing an interim IEP. If there are any persons other that TPS personnel and yourselves that you would like to be invited to that meeting, please advise.

(Tr. 560; Ex. 0, TOO114-115).

The parents instead offered to bring DH to school on March 2, 2007, with an IEP meeting immediately to follow that afternoon. TPS agreed. (Tr. 560-62; Ex. 0, TOO116, T00120-121). However, when they appeared with their daughter, the parents refused to proceed because TPS's attorney would be attending the IEP meeting. (Tr. 562-68; Ex. 0, T00140-143). Plaintiff also stated he had refused to allow staff to evaluate DH the previous day because TPS's attorney was not present. (Id.).

There ensued a fruitless series of TPS attempts - each and every one that the parents frustrated in one way or another - to have an IEP meeting. The District scheduled IEP meetings on dates that the parents either selected or agreed to for April 24, May 31, and June 19, 2007. (Tr. 569-573; Ex. N, p. 4-5; Ex.0, TOOI76, T00185, T00191, T00195, T00203-205, T00209-210). Before each scheduled session, the parents made demands as preconditions with which TPS was not required to comply under IDEA. Among these was their renewed insistence that they would not engage in an IEP session unless permitted to record the meeting. Due to restrictions in the District's collective bargaining agreement with the Teachers Union, it could not allow recording to occur.

Because of the repeated cancellations resulting from the parents' unfulfillable demands, the District sent a letter on June 21, 2007, asking whether they would participate - or continue to refuse to participate - in an IEP meeting without tape recording and with the TPS attorney present. (Ex. 0, T00246-248; Tr. 573-74). The parents did not respond.

Given the parents' refusal to cooperate in the District's efforts to have DH return to the EduCare placement, to which the parents had not previously objected, and as the IHO had ordered, in July, 2007, the District filed an administrative due process complaint in Case No. 1992-2007. (Tr. 548-550; Ex. 0, T00001-00006).[6]

On October 10, 2007, while this complaint was pending with the ODE, TPS sent the parents a draft proposed IEP for DH (Tr. 449-453; Ex. G, S00233-238). TPS asked the parents to update the District as to DH's then current levels of performance and provide any recent reports from therapists regarding DH (Ex. G, S00233-238). The parents left this letter unclaimed. (Ex. G, S00243).[7]

By letter dated October 22, 2007, the parents asked for an IEP meeting on October 30, or November 1, 2007. (Ex. H, S00258; Tr. 844). In response, the District sent a Parent Invitation for a meeting on November 1. (Ex. H, S00259; Tr. 845). The purpose of the meeting, the invitation stated, was to develop an interim IEP in accordance with the IHO's orders in Case 1872-2006. ( Id. ).

The parents responded in an e-mail with a complaint that the invitation was deficient because it did not state that the meeting was being convened at their request. (Ex. H, S00260; Tr. 849-850). Whereupon defendant Billau sent a revised invitation with that change. (Ex. H, S00264; Tr. 851). Billau told DH's teacher, Ms. Martin, of the scheduled IEP meeting. Ms. Martin, in turn, notified DH's services providers. (Ex. H, S00262;Tr. 851-852).

This meeting, too, did not go forward. That was so because on Sunday night, October 28, 2007, plaintiff e-mailed Billau demanding that before the November 1st meeting, TPS provide the parents with DH s "educational information as well as charter, licensing and/or contract information about her stay-put placement, Educare." (Ex. H, S00261; Tr. 851).[8]

Plaintiff went to Billau's office on October 31st. Billau offered him DH's education record, but plaintiff declined to view it. (Tr. 594-596). Instead he left, and the parents cancelled the IEP meeting. (Tr. 593; Ex. H, S00265). Instead of participating in an IEP meeting on November 1st, plaintiff e-mailed Billau, TPS Board members, and TPS Superintendent Foley stating: "We will not be appearing for any meetings with TPS until such time as we have been assured that TPS will fully comply with the IDEA and Ohio law as well as provide us all the requested records at its own cost." (Ex. H, S00265).

This is not a demand that TPS could meet, given the fact that the parents consider themselves - not the ODE or courts - the final arbiter of what constitutes full compliance with the IDEA. That this is so is apparent from their next communication with the District. On November 7th, the parents responded to the October 7th draft IEP and request to meet by restating their refusal to participate in an IEP meeting unless they were allowed to tape record and exclude TPS's attorney. (Tr. 454-455; Ex. G, p. S00257).[9]

About six months later, on April 7, 2008, the parents filed the due process complaint, which is the subject, in part, of this proceeding, Case XXXX-XXXX. After the parents had amended their complaint, they appealed an adverse decision by the IHO to the SLRO. The SLRO remanded to the IHO for a hearing and findings to determine specified issues regarding the 2007-08 school year:

1. Whether TPS failed to conduct annual IEP meetings.
2. Whether TPS failed to provide IEPs to DH.
3. Whether TPS failed to participate in IEP meetings.
4. Whether TPS failed to provide to the Horens the information that a school is obligated by the IDEA and Ohio's operating standards to provide to parents to insure that parents are afforded an opportunity to participate in an IEP meeting.
5. Whether TPS failed to have required persons present at resolution sessions.

(IRO Davis Decision, 8/5/2011, p. 2-3)

This began another period of delay on the part of the parents.

The IHO set a prehearing conference for September 3, 2009. The parents sought leave to file a motion to disqualify TPS's counsel, which the IHO denied. ( Id. at 3).

At a second prehearing conference on December 16, 2009, the IHO scheduled a hearing for March 19, 2010, with a disclosure conference to occur on March 4, 2010. At the March 4th conference, plaintiff stated he was, due to work commitments, only available for hearings on weekends. ( Id. ). The IHO reset the hearing for May 8, 2010, with a disclosure conference scheduled for April 29, 2010. ( Id. at 5).

On April 22, 2010, the IHO received a letter from the parents stating that, due to urgent family issues, they would not be available until June, 2010. The IHO reset the hearing for August 28, 2010, with a prehearing disclosure conference on August 12, 2010. ( Id. ).

Due to the parents' claim of urgent family medical issues, the August 28th hearing became a disclosure conference. The IHO reset the hearing for October 9 and 23, 2010, with a disclosure conference on October 2nd. On the date of the disclosure conference, the parents, contrary to the IHO's order, failed to bring their exhibits. As a result, in place of a hearing, the parties treated the October 9th date as a disclosure conference. ( Id. ).

The hearing to address the issues remanded from the SLRO began on October 23, 2010. Because the hearing could not be concluded that day, the IHO agreed to resume on a Saturday in November. The parents stated they were only available Thanksgiving weekend. This was not acceptable to the IHO, who set December 4, 2010, for resuming. The hearing resumed on that date and also on January 8, February 5, and March 5, 2011. After the last hearing date, the IHO told the parents she not was available for any Saturdays in April. The IHO agreed to make herself available to complete the hearing on March 19, 2011. ( Id. ).

On March 18th, one day before the date for the final hearing, the parents notified the IHO of another family emergency which made them unavailable for the March 19th hearing. Despite her earlier statement that she was not available on Saturdays in April, the IHO agreed to conclude the hearing on April 30, 2011. ( Id. ).

The hearing on April 30th ended early due to another family emergency. The IHO told the parents that the next hearing date would have to be on a weekday. At a May 3, 2011, prehearing conference, the parties agreed on a June 3, 2011, concluding date. ( Id. ).

However, in the late evening of June 2, 2011, the parents delivered an "Affidavit of Petitioners' Motion to ODE, " which stated that they were only available for hearing on weekends or Friday evenings. ( Id. ) The IHO denied the motion and concluded the hearing on June 3, 2011, without the parents' participation. ( Id. ).

Following post-hearing briefing, the IHO issued her decision on August 5, 2011. In response to the five remanded issues, the IHO ruled:

1. TPS convened several IEP meetings for the purpose of preparing an IEP for DH, but the Horens impeded those meetings by their failure to participate unless they could tape-record and bar the attendance of TPS's attorney.
2. TPS did not provide any IEPs for DH, but the Horens' refusal to participate in the meetings, provide the evaluations ordered by IRQ Sprenger and SLRO Bohlen, cooperate with the reevaluations ordered, and return DH to school, prevented the development of the IEPs.
3. TPS did not participate in IEP meetings, but was prevented from doing so because of a TPS policy that tape-recording of IEP meetings was only permitted by agreement of the teachers and the Horens would not agree to proceed with the meetings unless they could tape-record.
4. TPS did not provide the most recent version of "Whose IDEA is This" to the Horens, but the Horens failed to demonstrate that this impeded DH's right to FAPE; significantly impeded their opportunity to participate in the decisionmaking process; or caused a deprivation of education benefits.
5. TPS had the required persons present at the November 14, 2007 resolution session. TPS did not have the required persons present at the May 8, 2008 resolution session, but the Horens failed to demonstrate that this impeded DH's right to FAPE; significantly impeded their opportunity to participate in the decision-making process; or caused a deprivation of education benefits.

( Id. at 25-27).

For these reasons, the IHO found TPS not liable for a lack of a FAPE for DH. ( Id. at 31). On December 2, 2011, the SLRO affirmed the IHO's decision. (Id.).

In this case, the parents have appealed the SLRO's decision. They have, as well, brought additional claims against TPS and Billau. Defendants move for, and for the following reasons are entitled to summary judgment on all of the remaining claims.[10] Doing so, I also deny plaintiff's motions for partial summary judgment, to consolidate, and for leave to amend the complaint.

Discussion

1. Appeal of SLRO's Decision Affirming the IHO's Decision

Standard of Review

The standard of review for both procedural and substantive issues in an appeal from and administrative determination under IDEA is a "modified de novo review." Burilovich v. Bd. of Educ. of Lincoln Consolo Schools, 208 F.3d 560, 567 (6th Cir. 2000). As stated in that case:

In a case involving a motion for summary judgment, the court should still apply modified de novo review, but must ensure that there are no genuine issues regarding the facts essential to the hearing officer's decision. See [Doe v.] Metropolitan Nashville Pub. Sch., 133 F.3d [384, ] 387 [6th Cir. 1998)]. In rendering its decision, the court may still rely upon the hearing officer's presumed educational expertise, as long as the material facts underlying the officer's determination are not in dispute.

Id.

Before beginning my issue-by-issue review of the SLRO's decision in light of this standard, I emphasize that the pertinent events and the course they took are not in dispute. Contrary to the contention which makes up the bulk of both his motion for partial summary judgment and opposition to the defendants' motion for summary judgment, TPS did not withdraw their daughter on August 27, 2006, and thereby preclude her from the benefits of the IDEA.

Instead, she remained a pupil - albeit one who was not in attendance, until the District sent a letter to the parents on August 13, 2008, that DH had been withdrawn effective August 28, 2006. (Doc. 33-4, at 3).[11]

Likewise, the record which TPS has produced with regard to the status, good standing, and qualifications of EduCare to act as a suitable placement for DH is not, contrary to the plaintiff's suppositions and assertions, in dispute.

Plaintiff has not otherwise contested any of the material facts, as summarized in the preceding section. Consequently, this case is ready for consideration on summary judgment.[12]

i. The Parents Impeded the IEP Process

The SLRO found:

1. TPS convened several IEP meetings for the purpose of preparing an IEP for DH, but the Horens impeded those meetings by their failure to participate unless they could tape-record and bar the attendance of TPS's attorney.
2. TPS administratively withdrew D.H. from the district in 2008 due to nonattendance.
3. The effective date of D.H.'s withdrawal was made retroactive to August 29, 2006, which was the beginning of the 2006-2007 school year. Attached as Exhibit A is a true and accurate copy of the letter I sent to D.H.'s parents, dated August 13, 2008, informing them of D.H.'s withdrawal. The date of August ...

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