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G.M., A Minor, By and Through His Guardians Ad Litem, Kevin v. Drycreek Joint Elementary School District

September 7, 2012

G.M., A MINOR, BY AND THROUGH HIS GUARDIANS AD LITEM, KEVIN MARCHESE AND LYNDI MARCHESE; KEVIN MARCHESE, AN INDIVIDUAL, AND LYNDI MARCHESE, AN
INDIVIDUAL,
PLAINTIFFS,
v.
DRYCREEK JOINT ELEMENTARY SCHOOL DISTRICT,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER

Defendant Drycreek Joint Elementary School District ("District") moves for summary judgment on each claim in Plaintiffs' complaint. Plaintiffs' claims concern Plaintiff G.M.'s ("Student's") education while he was enrolled in the District. Plaintiffs Kevin Marchese and Lyndi Marchese (collectively "Parents"), and Student (collectively "Plaintiffs") filed an opposition brief.

Plaintiffs' first claim is an appeal of the California Office of Administrative Hearings ("OAH") administrative due process decision, filed under the Individuals with Disabilities Education Improvement Act ("IDEIA"). "A district court may review state administrative decisions under the [IDEIA] by means of a motion for summary judgment." Sarah Z. v. Menlo Park City Sch. Dist., No. C 06-4098, 2007 WL 1574569, at *3 (N.D. Cal. May 30, 2007) (citing Capistrano Unified Sch. Dist. v. Wartenberg ("Capistrano"), 59 F.3d 884, 891-92 (9th Cir. 1995)). However, "[w]hile called a 'motion for summary judgment[,]' . . . the procedure is, in substance, an appeal from an administrative determination, not a summary judgment." W.A. v. Patterson Joint Unified Sch. Dist. ("Patterson"), No. CV F 10--1317, 2011 WL 2925393, at *8 (E.D. Cal. July 18, 2011). Since Plaintiffs' remaining claims are independent from their administrative appeal under the IDEIA, the traditional summary judgment standard applicable to Federal Rule of Civil Procedure ("Rule") 56 motions governs that portion of District's motion.

I. APPEAL OF ADMINISTRATIVE DUE PROCESS DECISION

A. Standard of Review Under the IDEIA

"When a party challenges . . . an IDEIA due process hearing, the reviewing court receives the administrative record, hears any additional evidence, and bases its decision on the preponderance of the evidence." J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist. ("Fresno"), 626 F.3d 431, 438 (9th Cir. 2010) (internal quotation marks and alteration in original omitted) (citing 20 U.S.C. § 1415(i)(2)(B)). "Based on this standard, 'complete de novo review of the administrative proceeding is inappropriate.'" Id. (quoting Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 817 (9th Cir. 2007)). "As the party seeking relief in this Court, Student bears the burden of demonstrating that the [Administrative Law Judge's ('ALJ's')] decision should be reversed . . . [and] bears the burden of persuasion on each claim challenged." Id. (citing Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994)).

"In review of an [IDEIA] due process hearing, courts give 'less deference than is conventional in review of other agency actions.'" Id. (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993)).

How much deference to give state educational agencies, however, is a matter for the discretion of the courts[.] . . . The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After consideration, the court is free to accept or reject the findings in part or in whole.

Gregory K. V. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (emphasis in original; internal quotation marks and citation omitted).

"'[D]ue weight' must be given to the administrative decision below and . . . courts must not 'substitute their own notions of sound educational policy for those of the school authorities which they review.'" Van Duyn, 502 F.3d at 817 (quoting Bd. of Educ., Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley ("Rowley"), 458 U.S. 176, 206 (1982)). Further, the "Court gives deference to an ALJ's decision when it evinces his [or her] careful, impartial consideration of all the evidence and demonstrates his [or her] sensitivity to the complexity of the issues presented." Fresno, 626 F.3d at 438 (internal quotation marks, alterations in original, and citations omitted).

"A district court should accept the ALJ's credibility determinations unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion." K.S. ex rel. P.S. v. Fremont Unified Sch. Dist. ("Fremont"), 545 F. Supp. 2d 995, 1003 (N.D. Cal. 2008) (internal quotation marks and citation omitted). Further, "'[b]ecause [IDEIA] eligibility determinations are fact-intensive,' the Court 'reviews findings of fact for clear error, even if those findings are based on the administrative record.'" Patterson, 2011 WL 2925393, at *8.

B. Background

1. Statutory Framework

"The [IDEIA] is a comprehensive educational scheme, conferring on disabled students a substantive right to public education." Fresno, 626 F.3d at 432 (internal quotation marks and citation omitted). "The [IDEIA] ensures that 'all children with disabilities have available to them a free appropriate public education [("FAPE")] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.'" Id. (quoting 20 U.S.C. § 1400(d)(1)(A)). Under the IDEIA, a FAPE is defined as: special education and services that-(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the school standards of the State educational agency; (C) include an appropriate preschool, elementary school or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program [("IEP")] required under section 1414(d) of this title.

20 U.S.C. § 1401(9). "To provide a FAPE in compliance with the [IDEIA], a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education and services, conduct and implement an IEP, and determine an appropriate educational placement of the student." Fresno, 626 F.3d at 432 (citing 20 U.S.C. § 1414).

"Student's FAPE must be 'tailored to [his] unique needs . . . by means of an . . . IEP.'" Id. (quoting Rowley, 458 at 206). An IEP "is crafted by an IEP team made up of the parents, at least one regular education and one special education teacher of [the student], a representative of the local educational agency, and, at the discretion of the district or the parent, others knowledgeable about the [student]." E.P. v. San Ramon Valley Unified Sch. Dist., No. C05-01390, 2007 WL 1795747, at *1 (N.D. Cal. June 21, 2007) (citing 20 U.S.C. § 1414(d)(1)(B)). "An IEP team must set forth the IEP in a writing comprised of a 'statement of annual goals and short-term instructional objectives; a statement of the specific educational services to be provided and the extent to which the child can participate in regular education programs; and objective criteria for measuring the student's progress.'" Id. (quoting Ojai, 4 F.3d at 1469); 20 U.S.C. § 1414(d)(1)(A).

Violations of the [IDEIA] may arise in two situations. First, a school district, in creating and implementing the IEP, can run afoul of the Act's procedural requirements. Second, a school district can be liable for a substantive violation by drafting an IEP that is not reasonably calculated to enable the child to receive educational benefits.

Fresno, 626 F.3d at 432 (internal citations omitted). Here, Plaintiffs allege both procedural and substantive violations of the IDEIA.

2. Factual Background

The following uncontroverted facts are taken from the ALJ's Decision, the administrative record, and testimony from the administrative due process hearing. At all relevant times, Student resided with Parents in the District. (ALJ Decision ¶ 1 (findings).) "Student [has] receive[d] special education and related services because of a specific learning disorder (dyslexia)" since the first grade. Id.; Barbaria Test., Hr'g Trans. 93:16-18, Nov. 30, 2009. "He has deficits in reading, writing, math, and working memory." (ALJ Decision ¶ 1 (findings).)

"[Parents and District] were unable to agree on an IEP for Student for his sixth grade year ([2008-2009]), so [P]arents filed a request for [a] due process hearing" in 2008. Id. ¶ 2. "In October 2008, the matter was settled by a written agreement [('2008 Settlement Agreement'), which] placed Student, for his sixth grade year, with an outside reading tutor[, Suzanne Coutchie ('Coutchie'),] for three hours a day at District expense, and in physical education (['P.E.']) for one hour a day at . . . District's Creekview Ranch Middle School." Id. From August 2008 until the ALJ rendered his Decision in this matter, "Student's school day . . . consisted of being driven to [Coutchie's] home in Davis for three hours of reading tutoring, and then to school for one hour of [P.E.]" Id. ¶ 10.

"District employees last assessed Student['s academic abilities] in spring 2008 for his triennial review." Id. ¶ 5. "In April 2009, . . . District proposed an assessment plan to Parents, and sought [their] permission for academic reassessments of Student[.]" Id. "The day after [Parents] received the April 2009 assessment plan, [Lyndi Marchese] discussed it with [Coutchie], who proposed to do the assessments herself." Id. ¶ 6. Parents consented and Coutchie "conducted academic assessments of Student in late April and early May 2009." Id. ¶¶ 5 & 7. "Coutchie billed . . . District for the assessments, but [billed them] as ordinary instructional time, not as time for assessments, and . . . District paid the bill, not knowing it was for assessments." Id. ¶ 6. "District did not learn that it had paid [Coutchie] for her assessments until the [administrative due process] hearing." Id. "After [Coutchie] conducted these assessments, [she], Parents, and . . . [Student's advocate in the administrative due process proceedings, Michael Rosenberg ("Rosenberg"),] had many subsequent contacts with District staff, but did not reveal the existence or the results of [Coutchie's] assessments to . . . District . . . until late August 2009, when [Coutchie] produced them in response to a subpoena duces tecum[.]" Id. ¶ 7.

"[T]he [2009-2010] school year [was scheduled to begin] on August 10, 2009[.]" Id. ¶ 50. "District convened Student's regularly scheduled annual IEP meeting on May 28, 2009." Id. ¶ 22. The following individuals attended the May 28, 2009 IEP meeting: Parents; Coutchie; Rosenberg; District's Director of Special Education, Lynn Barbaria ("Barbaria"); a resource specialist teacher in the District, Megan Williams; District's then-legal counsel, Jacqueline McHaney; and four other District staff members. (A.R. 1214.) "[A]t the end of the May 28, 2009 meeting, [District] promised to deliver a written IEP offer to [Rosenberg] on June 5, 2009[.]" (ALJ Decision ¶ 37 (findings).) However, District failed to deliver an IEP offer to Rosenberg by June 5, 2009, and Plaintiffs filed their administrative due process complaint on June 11, 2009. Id. at p.1.

"On July 2, 2009, [District] began to make a series of requests of Parents that they identify dates on which they would be available for an IEP meeting to make [District's IEP] offer final." Id. ¶ 43. "Neither Parents nor [Rosenberg] responded to those requests." Id. "On July 27, 2009, [Barbaria] mailed a draft IEP to Parents, along with a new assessment proposal." Id. ¶ 44. On July 30, 2009, Barbaria sent written notice to Parents that another IEP meeting was scheduled for the following Wednesday, August 5, 2009. Id. ¶ 45.

"On Tuesday, August 4, 2009, Parents . . . [sent a letter to District stating] they would not attend the August 5 meeting." Id. ¶ 46. Parents also stated "the most important reason they would not attend the August 5 meeting was that [they] . . . were in litigation" with District. Id. ¶ 66. "[Parents] argued [in the letter] that open discussion would be impossible; that the meeting would have an impact on the litigation; and that they '[would] be denied due process rights and sustain harm if [District] attempt[ed] to scheduled an IEP meeting while due process litigation [was] pending.'" Id.

District staff held the August 5, 2009 IEP meeting without Parents or Coutchie. (Barbaria Test., Hr'g Trans. 171:18-172:18, Nov. 30, 2009.) Barbaria sent a letter and a draft IEP offer to Parents following the meeting. Id. at 187:7-17. "[Subsequently, District] decided to hold another IEP meeting that Parents could attend." (ALJ Decision ¶ 51 (findings).) "On August 14, [District] sent Parents a notice of an IEP meeting [scheduled for] August 28." Id. "Parents, [Rosenberg], and [Coutchie] attended, as did all District staff required by the statute." Id. At the August 28, 2009 IEP meeting, "Parents refused to discuss the details of . . . District's [IEP] offer, stating that they believed such a discussion was inappropriate while the matter was in litigation." Id. ¶ 55.

"The IEP offer that emerged from the August 28, 2009 IEP meeting would have placed Student . . . at [District's] Silverado Middle School for his seventh grade year [(2009-2010)]." Id. ¶ 71. "The offered program consisted of: two periods a day of one-to-one language arts instruction with a District special education teacher trained and experienced in addressing significant reading deficits, including dyslexia; two periods a day of small group math instruction . . . ; one period a day of sixth grade science in a general education class with the support of an instructional assistant . . . ; one period a day of [P.E.]; one Advisory period a day; ten 30-minute sessions a year of speech and language therapy to address social skills; ten 30-minute consultations a year by an occupational therapist to support keyboarding instruction; and an extended school year." Id.; Admin. R. ("A.R.") 1211.

"The offer included an extensive list of accommodations and modifications." (ALJ Decision ¶ 72 (findings); A.R. 1188-1216.) "It also included use of, and training for, a Kurzweil 300, a computer device for people with dyslexia and other reading deficits that simultaneously highlights text from scanned books or electronic text and reads it aloud using synthetic speech." (ALJ Decision ¶ 72 (findings); A.R. 1188-1216.) "The IEP offer proposed that Student's reading teacher, Lesley Ludwig, would consult with Dr. [Lela Catherine] Cristo [("Cristo"), who conducts educational assessments for District,] in the development of the specifics of Student's reading program as soon as his present performance and limitations could be determined" through more current assessments. Id. ¶ 73. "It also offered monthly IEP team meetings to monitor Student's progress." Id.

2. Administrative Due Process Hearing and Decision

Plaintiffs filed a request for a due process hearing on June 12, 2009 in OAH Case No. 2009060940. (A.R. 1-7.) District filed a request for a due process hearing on July 31, 2009 in OAH Case No. 2009071109, which was consolidated with OAH case No. 2009060940. Id. at 151-53. ALJ Charles Marson ("the ALJ") conducted an administrative due process hearing on November 30 and December 1, 2, 8, 9, and 10, 2009. The ALJ ruled on the following issues in his February 18, 2010 Decision ("Decision"):

Student's Issues (OAH Case No. 2009060940):

1) Whether [District] failed to accord Parents meaningful participation in the IEP process at and after the May 28, 2009 IEP meeting because it failed to deliver a written IEP offer by June 5, 2009, as it had promised, or by a reasonable time thereafter;

2) Whether [District] failed to accord Parents meaningful participation in the IEP process at the May 28, 2009 IEP meeting because several members of the IEP team were unfamiliar with Student; and

3) Whether [District] denied Student a FAPE by failing to make a timely offer of a [FAPE] for the . . . 2009-2010 [school year].

District's Issues (OAH Case No. 2009071109):

1) Whether [District] may assess Student in accordance with the assessment plan and related correspondence presented to Parents on or about April 2009 and July 2009; and

2) Whether [District's] most recent IEP offer constituted an offer of a FAPE for Student for the . . . 2009-2010 [school year].

(ALJ's Decision p. 2.) The ALJ found in favor of District on all issues. Id. ¶¶ 5, 21-23 & 31-34 (conclusions). In addition, the ALJ granted in part and denied in part District's motion for attorneys' fees against Kevin Marchese. Id. at p.50.

C. Discussion

The Court has reviewed the entire record, which includes the administrative record, the hearing transcripts, and the parties' arguments and authorities. Neither party requested to present additional evidence concerning the administrative appeal.

The ALJ rendered his 51-page Decision following a six-day hearing in which he actively participated. During the hearing, the ALJ sought clarification and follow-up responses from the witnesses. The ALJ accurately and completely described in his Decision the relevant witness testimony and other evidence in the administrative record. In addition, the ALJ discussed the qualifications of the witnesses on whom he relied, explained the facts supporting his credibility determinations, applied the relevant law, and thoroughly explained his legal conclusions. Therefore, the Court finds the ALJ's Decision to be thorough, well-reasoned, and entitled to substantial deference.

1. ALJ's Alleged Procedural Errors

a. Failure to Consider California Department of Education ("CDE") Compliance Reports Concerning Procedural Violations

Plaintiffs allege in their First Amended Complaint ("FAC") that the ALJ "fail[ed] to consider and accept . . . the findings of numerous CDE compliance [reports] which demonstrated the CDE's recognition of ongoing systemic and individual violations by [District] against Student and his family." (FAC ¶ 74(R).)

The administrative record contains three CDE compliance reports. The CDE found in its September 22, 2009 compliance report that District violated California Education Code sections 56502(d)(2) and 56501.5(a)(1) by failing to respond to Parents' administrative due process complaint within ten days and failing to hold a resolution session within fifteen days. (A.R. 960-70.) Similarly, the ALJ found that "Federal and State law required that, within ten days of receiving a due process complaint, a district must 'send to a parent' a 'response' to the complaint[,] . . . [but] District did not send Parents a response to their June 11, 2009, complaint until July 28, 2009." (ALJ Decision ¶¶ 158-59 (findings).) Since the ALJ's finding was consistent with the CDE's compliance report, Plaintiffs have not demonstrated that the ALJ erred.

The CDE found in its October 9, 2009 compliance report that District violated federal regulations by "[f]ail[ing] to continue [Student's] current placement [for P.E.] during the pendency of [the] administrative . . . due process proceeding." (A.R. 971-79.) However, Student's P.E. placement from the 2008 Settlement Agreement was not at issue in the administrative due process proceedings. Therefore, Plaintiffs have not demonstrated the ALJ erred by failing to consider the October 9, 2009 CDE compliance report.

The CDE found in its November 9, 2009 compliance report that District violated the California Education Code and federal regulations concerning the August 5, 2009 IEP meeting by failing to "ensure [Parents the] right to present information to the IEP team"; "ensure [Parents were] fully informed of all information"; "notify [P]arents of IEP team meeting early enough to ensure that they will have an opportunity to attend"; and "include all required team members in the IEP meeting[.]" (A.R. 980-1008.) The ALJ concluded in his Decision that District committed the same violations and stated he "independently agree[d] with [the CDE's] findings." (ALJ Decision ¶ 31 (conclusions); id. at p.12 n.4.) Therefore, Plaintiffs have not demonstrated the ALJ erred.

b. Alleged Violation of ALJ's "Standing Order"

Plaintiffs argue that "without a stipulation [to amend its due process complaint from Plaintiffs], [District] could not bring[,] nor could the [ALJ] consider[,] the 'new' issues pertaining to the contrived August 28, 2009 IEP meeting and the necessarily unlawful offer of FAPE generated thereon, since it was a new issue barred by the [ALJ's 'standing order'] and the [IDEIA]." (Opp'n 21-22; FAC ¶¶ 74(D)-(E) & (G).)

The ALJ's "standing order" states in relevant part: Issues: The hearing shall be limited to the issues raised in the due process complaint notice. You will not be permitted to raise other issues unless the other party . . . agrees.

(A.R. 146.)

The evidence in the administrative record demonstrates that District first included the August 28, 2009 IEP meeting in its "Issue No. 2" when it filed its Second Amended Pre-Hearing Conference Statement on November 18, 2009. (See A.R. 573 (District's Second Amended Pre-Hearing Conference Statement); id. at 244 (District's August 18, 2009 amended due process complaint).) The ALJ incorporated the August 28, 2009 IEP meeting into his statement of District's Issue No. 2 in his Order Following Pre-Hearing Conference filed on November 24, 2009. Id. at 608.

However, Plaintiffs did not object to District's addition of the August 28, 2009 IEP meeting to its Issue No. 2 before or during the pre-hearing conference on November 23, 2009; in their motions in limine dated November 25, 27, and 29, 2009; or during the first day of the administrative due process hearing, during which District's counsel described the August 28, 2009 IEP meeting in her opening statement and two witnesses testified in detail about what occurred at that meeting. (See Hr'g Trans. Nov. 23, 2009 (transcript of pre-hearing conference); A.R. 617-54 & 666-69 (Plaintiffs' motions in limine); Hr'g Trans. 28:11-29:7 (District's opening statement); Barbaria Test., Hr'g Trans. 173:21-181:14, 193:8-209:9, Nov. 30, 2009; Williams Test., Hr'g Trans. 236:2-239:4, Nov. 30, 2009.)

Plaintiffs first objected to the introduction of evidence concerning the August 28, 2009 meeting on the second day of the administrative due process hearing. (Hr'g Trans. 8:2-11:10, Dec. 1, 2009.) After hearing oral argument regarding Plaintiffs' objection, the ALJ stated, in relevant part:

I'm going to amend the statement at issue . . . . In my view, that does not change the issue. . . .

It will now read, "whether the District's most recent IEP offer constituted an offer of FAPE to Student for the school year 2009-2010." . . . [N]ot only is it my memory that [Plaintiffs] did not object to this at the pre-hearing conference, but we had considerable evidence yesterday . . . to which [Plaintiffs] could have objected on this ground and did not.

(Hr'g Trans. 18:13-21, 19:3-12, Dec. 1, 2009.) The ALJ upheld this ruling when he rendered his Decision. (See ALJ Decision 36 n.10 (denying Plaintiffs' motion for reconsideration concerning his ruling from the bench).)

The California Code of Regulations, which implements the IDEIA's procedural safeguards concerning administrative due process hearings, prescribes in relevant part:

The hearings conducted pursuant to this section shall not be conducted according to the technical rules of evidence and those related to witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.

Cal. Code. Regs., tit. 5, § 3082(b). In addition, the IDEIA permits amendment of a due process complaint with the ALJ's permission or consent of the opposing party. 20 U.S.C. § 1415(c)(2)(E).

Plaintiffs have not demonstrated that the ALJ exceeded his authority under the California Code of Regulations or the IDEIA by amending District's Issue No. 2 to reflect the August 28, 2009 IEP meeting. The evidence demonstrates that the August 28, 2009 IEP meeting was relevant to the issue of whether District violated the IDEIA by failing to develop an IEP that would provide Student with a FAPE for the 2009-2010 school year. Therefore, Plaintiffs have not demonstrated the ALJ erred by allowing the introduction of testimony and evidence concerning the August 28, 2009 IEP meeting.

Further, Plaintiffs do not argue they were prejudiced by the introduction of evidence concerning this issue; nor would the record support such an argument, since Plaintiffs did not timely object to the introduction of evidence concerning the August 28, 2009 IEP meeting and Plaintiffs' witnesses testified extensively regarding the appropriateness of the IEP generated at the August 28, 2009 meeting. (See Coutchie Test., Hr'g Trans. 63:15-94:22 & 126:12-131:22, Dec. 8, 2009; Torgesen Test., Hr'g Trans. 61:2-82:18 & 111:10-119:10, Dec. 9, 2009.)

c. Plaintiffs' Requests for Default Judgment

Plaintiffs argue District "should have been precluded from submitting a defense in the administrative case" and the ALJ should have entered default judgment against District because District failed to respond to Plaintiffs' June 11, 2009 due process complaint within ten days. (Opp'n 12-18.) The ALJ referred to this argument in his Decision as the "sudden death argument," because "Parents argued . . . that [District's] delay in filing a response meant 'sudden death' to [District's] position in any litigation concerning Student before OAH." (ALJ Decision ¶ 159 (findings).)

Under the IDEIA, a district that receives a copy of a due process complaint must, "within 10 days of receiving the complaint, send to the parent a response that shall include . . . an explanation of why the agency proposed or refused to take the action raised in the complaint; . . . a description of other options that the IEP Team considered and the reasons why those options were rejected; . . . a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and . . . a description of the factors that are relevant to the agency's proposal or refusal." 20 U.S.C. § 1415(c)(2)(B).

The ALJ rejected the "sudden death argument" for the following reasons:

a) A statute that says "send to the parent" does not mean "file." Since the statute only requires a response to a parent if a prior written notice has not been sent, its apparent purpose is to ensure that parent is informed, not that litigation is furthered.

b) An answer serves a central role in civil litigation and is required by statute, court rule, and decisional law, which authorize dismissal if an answer is not filed. The response to a parent plays no role in due process litigation, ...


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