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T.G. v. Baldwin Park Unified School District

August 11, 2010

T.G., BY AND THROUGH HIS GUARDIAN AD LITEM, STELLA G., PLAINTIFF,
v.
BALDWIN PARK UNIFIED SCHOOL DISTRICT; THE CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS, SPECIAL DIVISION, DEFENDANTS.



The opinion of the court was delivered by: Honorable Manuel L. Real United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The parties tried this matter to the Court based upon an administrative record on July 12, 2010. Plaintiff T.G., by and through his Guardian Ad Litem, Stella Gutierrez ["Student"], was represented by Paul H. Kamoroff of Kamoroff & Associates. Defendant Baldwin Park Unified School District ["District"] was represented by Jeff Marderosian of the law offices of Jeff C. Marderosian. Having reviewed the administrative record, considered all prior submissions of the parties, and the arguments of counsel at trial, the Court enters the following Findings of Fact and Conclusions of Law.

I. INTRODUCTION

In late 2008, Student and District were the only parties to consolidated due process case numbers 200808193 and 2008080953 ("Case #1"). One month after the decision in that case became final, Student made demands upon the District that led to Student's filing on July 27, 2009 of a second due process case with the Office of Administrative Hearings ("OAH"). That case was assigned case number 2009070989 ("Case #2"). On July 31, 2009, the District filed a motion to dismiss the due process complaint. On August 10, 2009, Administrative Law Judge ("ALJ") Peter Castillo granted the District's motion to dismiss Student's due process complaint in Case #2 based upon collateral estoppel and res judicata. Student's instant appeal followed.

II. FINDINGS OF FACT

BACKGROUND

1. Student is a seventeen-year old boy who turns eighteen on July 27. AR Ex D-5, 330.

2. Student qualifies for special education services under autism, moderate mental retardation, and language impairment.

AR HT 2008-12-02 157: 1-4.

3. The District by letter dated July 21, 2008 formally offered Student placement for the 2008-2009 school year at Canyon View School ("CVS"), a nonpublic school.

AR D-Ex 38 560-561.

4. CVS serves students who are autistic, emotionally disturbed, and/or other health impaired.

AR HT 2008-12-04 65:5-16.

5. When Mother failed to respond to the offer, on August 1, 2008 the District filed with OAH a due process complaint against Student seeking an order that the District's July 21, 2008 offer constitutes FAPE and should be immediately implemented. The complaint was assigned case number 2008080193.

AR PL 240-257.

6. Student then filed a due process complaint with OAH on August 27, 2008 which was assigned case number 2008080953.

AR PL 4-20.

7. OAH granted Student permission to file an amended due process complaint.

AR PL 57-61.

8. On September 29, 2008, Student filed an amended due process complaint with OAH.

AR PL 65-95.

9. The due process complaints were consolidated by order of OAH ("Case #1").

AR PL 43-44.

10. The sole issue that the District sought to adjudicate in Case #1 was the appropriateness of its July 21, 2008 offer of FAPE to Student including placement at CVS.

AR PL 198.

11. Student in Case #1 made numerous claims that the District committed a denial of FAPE including, but not limited to claims that the District failed to assess Student in all areas of suspected disability, and failure to address Student's unique needs for behavior intervention including a behavior intervention plan, counseling, behavioralist support, behavior assistant support and behavior therapy.

AR PL197-198.

12. The due process hearing took place over six days between November 24 and December 4, 2008, and was presided over by ALJ Suzanne Dugan who took testimony from 19 witnesses.

AR HT.

13. ALJ Dugan admitted 75 exhibits into evidence.

AR D-Ex 1-64, S-Ex A, H, V, GG, KK, LL, MM, P, PP, TT, UU. STUDENT'S APPROPRIATE PLACEMENT CASE #1

14. The District presented evidence that CVS offers an educational program and a full range of related services to children with autism, emotional disorders, mental retardation and with other developmental disabilities, neurological disabilities and sensory issues as explained in its Developmental Resource Program for Students with Autism and Other Developmental Disabilities.

AR SD-Ex 60 695-698.

15. Student sought continued placement at home. AR PL 209:65.

STUDENT'S AGRESSIVE BEHAVIOR CASE #1

16. Student called ten witnesses to testify in Case #1. Seven of those witnesses offered testimony as to Student's aggressive behavior. AR HT 2008-11-24 25-32; AR HT 2008-11-24 56:2-3, 18-25; AR HT 2008-11-25 13:10-25, 14:1-21, 29-38; AR HT 2008-11-25 150:12-25; AR HT 2008-3-12 7:13-25,8; AR HT 2008-12-03 118:23-25, 119:7-22; and AR HT 2008-12-03 171: 16-20 Also see selected quotations ¶¶ 25-31 herein.

17. Patricia Kreyssler (Student's teacher) testified that "you can't physically get involved with him or you're going to get hurt."

AR HT 2008-25-11 31:25 to 32:1.

18. When describing Student's turning over of classroom tables, Kreyssler testified that "(h)e actually gets it off the ground and tosses it...And he'll take the chairs and actually throw them across the room."

AR HT 2008-24-11 32: 4-12.

19. Testifying as to Student Exhibit V, Kreyssler described photographs that she had taken of the classroom with the date on them of January 10, 2008. She testified that Student had flipped over "everything in the room." Additionally, Kreyssler identified a photograph that she had taken of Mother saying: "that's Stella and some of the bruises . . . ."

AR HT 2008-25-11 33:24-25 to 34:1-4, 36:2-5; AR S-Ex V776-779.

20. Sargis Akopyan (Student's recreation coach) described his aggressive behavior as "pinching, hitting, kicking, and digging into your skin with his nails...He pretty ...


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