L.C. v. Laurel School District
Filing
39
MEMORANDUM Signed by Judge Mark A. Kearney on 3/23/2018. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
L.C.
CIVIL ACTION
v.
NO. 17-989
LAUREL SCHOOL DISTRICT
MEMORANDUM
KEARNEY,J.
March 23, 2018
Federal law protects children with defined learning challenges by allowing parents and
school districts to appeal decisions from fact-finding administrative hearing panels to us. We
today address what happens when the parents bringing an appeal of limited issues terminate
parental rights and a volunteer state appointed educational surrogate parent disagrees both with
the hearing panel and with the parents' earlier-filed appeal. The educational surrogate parent
wants to dismiss the child's claims - now close to resolution - for limited relief without
consideration. She cites no harm to the child or loss of time or money to her. We are not bound
by the educational surrogate parent's decision; instead, we must focus on the child's best interest
before we dismiss these pending claims for expanded services on her behalf for no consideration.
We expect the educational surrogate parent will act in the child's best interests and follow the
hearing panel and our Order. While we are concerned with the educational surrogate parent's
possibly uninformed view to date, we will not appoint another guardian ad litem for purposes of
this case absent evidence the educational surrogate parent is not acting in the child's best interest
and without a suitable guardian. We are close to resolving these important issues. Dismissal of
claims now without consideration is not in the child's best interests.
We deny the school
district's motion to dismiss and the cross-motion for appointment of a guardian ad litem in the
accompanying Order.
I.
Relevant facts adduced from briefs and our best interests hearing.
Twelve year old L.C. suffers from idiopathic intracranial hypertension and has significant
fine motor and sensor needs. 1 Child Protective Services removed L.C. and her two siblings from
their biological parent's home at five years old when L.C. could speak just four words: mommy,
daddy, cat, and eat and she suffered from microcephaly, ear infections, dental issues, motor
jerking movements, sleep difficulties, and speech and language delays. 2 L.C. then lived with two
foster families. 3 Child Protective Services removed L.C. from her first foster home because her
biological sister sexually abused another child in the home. 4 The same sister sexually abused
L.C., as well. 5
In 2012, B.C. and A.Z. adopted L.C. 6 L.C.'s adoptive parents enrolled her in Laurel
School District. 7 In 2015, with the guidance of L.C.'s mental health providers, L.C.'s adoptive
parents enrolled her in the Delaware Guidance Services Day Treatment program. 8 The District
and the Day Treatment Program provided L.C. 's education defined in her individualized
education program ("IEP"). At least once every three years, L.C.'s IEP team meet to re-evaluate
L.C. 9 The IEP team most recently met in the Fall 2015. 10 The IEP team performed a cognitive
assessment, an academic achievement test, adaptive skills assessment, and behavioral
assessment. 11 The IEP team summarized L.C.' s results in an evaluation summary report. 12
Two months later, L.C. experienced homicidal ideations resulting in a stay with the
Rockford Center inpatient program for over a month.13 L.C. then moved to Terry Children's
Psychiatric Center and remained there for nearly two months. 14 Upon discharge from the Terry
Children's Psychiatric Center, L.C. returned to the District to complete her school year. 15
2
a. Due Process Hearing Panel's April 21, 2017 Order.
The following school year, L.C.'s adoptive parents expressed concerns about the
evaluation summary report the IEP team relied upon to create her educational plan for the year. 16
L.C. 's adoptive parents requested the District reevaluate L.C. by performing an individualized
educational evaluation ("IEE") at public expense. 17 The District refused to provide an IEE and
then filed a due process complaint in defense of its evaluation summary report. 18
On April 21, 2017, the Due Process Hearing Panel ordered the District fund an
independent psychiatric assessment and independent functional behavioral assessment. 19 The
Hearing Panel also ordered the District to repeat occupational therapy, speech and language, and
°
neuropsychological assessments. 2 Finally, the Hearing Panel ordered L.C.'s adoptive parents to
choose a psychiatric and behavioral specialist to perform the independent assessments from a list
of specialists created by the District. 21
b. L.C. sues the District appealing parts of the Hearing Panel's Order.
Ninety days later, L.C., through her counsel The McAndrews Firm, sued the District
under the Individuals with Disabilities Education Act ("IDEA"). 22 L.C.'s counsel challenged the
Hearing Panel's Order requiring L.C ..to choose from a list of evaluators created by the District
for the psychiatric and functional behavioral assessments and requiring the District "repeat" the
occupational therapy, speech/language, and neuropsychological assessments, rather than provide
for independent assessments. L.C. seeks a wider choice of evaluators - not just those selected by
the District. L.C. also seeks an order requiring the District perform an IEE at public expense.
The District did not appeal the Hearing Panel's April 21, 2017 Order.
3
c. After suit, the adoptive parents terminate rights and the state
appoints fiduciaries to protect L.C.
For reasons immaterial to our issues today, L. C. 's adoptive parents agreed to terminate
their parental rights over L.C. after beginning this case. The state stepped in to protect L.C.
The Family Court terminated B.C. and A.Z.'s parental rights of L.C. upon consent. 23 The
parental rights of L.C. are now vested in the Department of Services for Children, Youth and
Their Families, Division of Family Services.24
During the course of L.C.'s dependency
proceeding, the Family Court appointed Elizabeth Soucek, Esq. as L.C.'s attorney under 13 Del.
C. § 2504(±). 25 Under§ 2504(±) an appointed attorney must follow the duties and rights outlined
in 29 Del C. § 9007A. 26 ' Under§ 9007A, the appointed attorney's scope of representation is
limited to representing "the best interests of the child in all child welfare proceedings. " 27
Attorney Soucek confirmed her limited role in an email communication to both The McAndrews
Firm and the District. 28
Attorney Soucek described herself as L.C.'s "Child Attorney" or
"guardian ad litem."29 Attorney Soucek confirmed she does not represent L.C. in this IDEA
lawsuit. 30 Attorney Soucek believes her representation of L.C. is limited to L.C.'s dependency
proceeding in Family Court. 31
The Delaware Department of Education appointed Linda Lett as an educational surrogate
parent for L.C. 32 Ms. Lett is a retired Maryland teacher volunteering for this important role
during her earned retirement through Delaware's Educational Surrogate Parent Program.
Through the Program, the Department appoints educational surrogate parents to children with
special needs who are in foster care to ensure the children's educational rights under IDEA and
state law are satisfied.
As L.C.'s educational surrogate parent, Ms. Lett is responsible for
representing L.C.'s interests in special education decisions and holds equal rights as a parent in
those decisions. 33
Ms. Lett also has the right and responsibility to provide consent for
4
educational evaluations. 34 She attends meetings with the District to discuss L.C.'s education.
Ms. Lett explained the Program is perfect for her because she enjoys working with children but
does not miss the paperwork required to be completed as an educator. 35
d. L.C. moves for judgment on the Panel's alleged error.
Back in our Court, L.C. through her counsel timely moved for judgment on the
administrative record arguing the Hearing Panel erred in limiting the choice of evaluators for the
mandated assessments and requiring the District repeat certain assessments, rather than provide
for independent evaluations.
During the pendency of L.C.'s motion for judgment based on the administrative record,
the District moved to dismiss. 36 The District argues L.C. lacks standing to pursue her claim
because her adoptive parent's parental rights are terminated. The District argues because Ms.
Lett expressed her desire to discontinue this action, L.C.'s lawyers at the McAndrews Firm may
not prosecute L. C. 's claim.
The District argues Ms. Lett controls the litigation and may
discontinue the action if she believes the litigation is not in the best interests of L.C.
We held a hearing on February 15, 2018 for Ms. Lett to show cause as to whether
dismissing the claim for an expanded list of potential evaluators is in L.C. 's best interest. 37 At
our hearing, the District admitted it does not have an in-house evaluator capable of performing
the neuropsychological assessment. 38 The District plans to consult a private evaluator to perform
the neuropsychological assessment. 39
Ms. Lett told us why she thought the assessments were not necessary. Ms. Lett explained
the testing would be duplicative and not provide the District with new information about L.C. 40
Ms. Lett believes the District is providing L.C. an appropriate education based on its analysis of
sufficient information. 41 Ms. Lett believes L.C. is not demonstrating issues at school which
5
warrant further testing. 42 Ms. Lett also attributed any claimed issues observed in the classroom
to L.C.'s former adoptive parents. 43 Ms. Lett thought L.C.'s former adoptive parents required
"outrageous things" from the District and L.C and created an unsuitable environment for L.C. to
thrive academically. 44
Ms. Lett bases her opinion on her review of L.C.'s limited access
education file, a 10 minute face-to-face meeting with L.C., observations of L.C. in the classroom,
and consultation with L. C.' s IEP team. 45
It became clear at the best interest hearing Ms. Lett did not understand the nature of relief
sought in L.C.'s complaint. Ms. Lett believed the lawsuit related to the merits of whether the
assessments ordered to be completed by the Hearing Panel would take place. 46 She did not know
the Hearing Panel requires the assessments and the District does not challenge the Hearing
Panel's findings. 47 She also did not know the issue raised by L.C.'s motion for judgment is
whether the Hearing Panel erred in defining the available evaluators to perform the certain
assessments. 48 We went to great length to clarify Ms. Lett's confusion.
At the hearing we also heard from Kathie Herel, Coordinator of the Educational
Surrogate Parent Program. Ms. Herel explained she never faced a similar issue we face today
where the Hearing Panel ordered certain tests to be completed and the educational surrogate
disagreed with the findings and seeks discontinuation of a lawsuit challenging certain aspects of
the Hearing Panel's Order. 49 Ms. Herel acknowledged Ms. Lett's and her misunderstanding of
the relief sought in L.C.'s complaint. 50 After we clarified the nature of L.C.'s lawsuit, Ms. Herel
characterized the lawsuit as a "safeguard right that a parent would exercise." 51
Ms. Herel
explained she and Ms. Lett would meet to discuss whether Ms. Lett still seeks to discontinue the
lawsuit given the clarification of relief sought. 52
6
At the conclusion of the hearing where we clarified the Hearing Panel's April 17, 2017
Order under appeal, we directed Ms. Lett to provide her updated position to The McAndrews
Firm. 53 Ms. Lett then told The McAndrews Firm she still wishes to voluntarily dismiss L.C.'s
complaint. 54 Ms. Lett further explained she accepts the Hearing Panel's Order and will work
with the District to ensure all assessments are completed. 55
After receiving Ms. Lett's continuing position, The McAndrews Firm moved for the
appointment of a guardian ad litem. L.C.'s counsel argues Ms. Lett is not pursuing L.C.'s best
interests because Ms. Lett wants to voluntarily dismiss this litigation without offering valid
justification and without consideration from the District.
The McAndrews Firm expresses
concern Ms. Lett will not enforce the Hearing Panel's Order given her position the testing is
unnecessary. The District opposes the appointment of a guardian ad litem. The District argues it
is unnecessary to appoint a guardian because Ms. Lett is acting as L.C.'s representative in this
litigation and has the right to discontinue the lawsuit and Attorney Soucek is already appointed
as a guardian.
II.
Analysis
We must decide only whether dismissing this case, particularly at this late stage with
little or no further involvement from L.C. 's counsel and with no consideration in exchange, is in
L.C.'s best interests and whether we can proceed in this IDEA appeal given Ms. Lett's interest
in discontinuing the appeal.
IDEA provides children with disabilities in participating states an enforceable substantive
right to a free appropriate public education and conditions federal aid on the state's "compliance
with the substantive and procedural goals of [the statute]." 56 "Because Congress was aware that
schools had 'all too often' denied a free and appropriate public education to children with
7
disabilities 'without in any way consulting' the children's parents, [IDEA] also 'establishes
various procedural safeguards that guarantee parents both an opportunity for meaningful input
into all decisions affecting their child's education and the right to seek review of any decisions
they think inappropriate. "' 57
The procedural safeguards include allowing parents to file an
administrative complaint challenging the evaluation of a child or provision of a free appropriate
education and an impartial due process hearing in response to a complaint. 58
We need to ensure Ms. Lett understands the April 17, 2017 Order of the due process
hearing panel is a final decision which, absent our modification, must be followed. A party may
appeal the order. 59 If neither party appeals the hearing panel's order, the order becomes final and
binding on the parties. 60 If appealed, the court may affirm the panel's findings, making the
panel's order final and binding. 61
IDEA's procedural safeguards provide parents a means of enforcing the statute's
substantive requirements. 62 "Congress 'placed every bit as much emphasis' on school districts'
compliance with those procedural safeguards as it did on their compliance with [IDEA's]
substantive standards." 63
Congressional emphasis on procedural safeguards "demonstrates
legislative conviction that adequate compliance with the procedures prescribed would in most
cases assure much if not all of what Congress wished in the way of substantive content. " 64
A. L.C. has standing to pursue her appeal.
The District argues we should dismiss L. C. 's complaint for lack of standing because the
Family Court terminated L.C. 's adoptive parent's parental rights after filing the complaint. The
District argues the McAndrews Firm does not have a client with authority to act on L.C.'s behalf
and the only person with authority, Ms. Lett, wishes to discontinue the case.
8
IDEA allows a parent of a disabled child to file a complaint "with respect to any matter
relating to the identification, evaluation, or educational placement of the child, or the provision
of a free appropriate public education to such a child."65 Under IDEA, a parent is defined as a
biological or adoptive parent or an appointed surrogate parent. 66
Against this backdrop, we must consider what happens to the child's claim when an
appointed surrogate parent abandons arguments for no consideration which could benefit the
child with little or no risk. Federal Rule of Civil Procedure 17(c)(1) provides a general guardian,
a committee, a conservator, or a like fiduciary may sue or defend on behalf of a minor or
incompetent person. 67 Rule 17(c)(2) allows a minor or incompetent who does not have an
appointed representative may sue by a next friend or guardian ad litem. 68 It further provides a
court "must appoint a guardian ad litem - or issue another appropriate order - to protect a minor
or incompetent person who is unrepresented in an action." "Rule 17(c) 'gives a federal court
power to authorize someone other than a lawful representative to sue on behalf of an infant or
incompetent person where that representative is unable, unwilling or refuses to act or has
interests which conflict with those of the infant or incompetent."69 "The minor's best interests
are of paramount importance in deciding whether a Next Friend should be appointed, but the
ultimate 'decision as to whether or not to appoint [a Next Friend or guardian ad litem] rests with
the sound discretion of the district court ... " 70
"District courts have a special duty, derived from [Rule 17] to safeguard the interests of
litigants who are minors." 71 In the context of compromises involving minor plaintiffs, "this
special duty requires a district court to 'conduct its own inquiry to determine whether the
settlements serves the best interests of the minor. "'72 A district court may reject a proposed
compromise found not to be in the minor plaintiffs best interest. 73
9
"[A] court must
independently investigate and evaluate any compromise or settlement of a minor's claim to
assure that the minor's interests are protected, even if the settlement has been recommended or
negotiated by the minor's parent or guardian ad litem." 74
The School District seeks dismissal based solely on Ms. Lett's decision. Relying on
Driessen v. Miami-Dade Cnty. Sch. Bd., 75 the District argues L.C. lacks standing to pursue her
claim because her adoptive parent's parental rights have been terminated. In Driessen, a parent
brought an IDEA suit pro se alleging several IDEA violations. 76 In the complaint, the parent
conceded a court order terminated her parental rights. 77 The court of appeals found the parent
lacked standing to pursue the IDEA claim because she lacked legal guardianship of the children
at issue and affirmed dismissal. 78
Our case is distinguishable from Driessen because Ms. Lett is a parent as defined under
IDEA. Ms. Lett may maintain an action under IDEA as L.C.'s educational surrogate. 79 Both
parties admit Ms. Lett has authority to act on L.C.'s behalf with respect to her educational
rights. 80 Under Fed. R. Civ. P. 17, Ms. Lett may also maintain the action as a fiduciary to L.C.
81
This is not a case where we have no person capable of maintaining the action on L.C.'s behalf.
Ms. Lett, with authority to act on L.C.'s behalf on issues relating to her educational rights under
her appointment, may maintain this action on behalf of L.C. under IDEA and Fed. R. Civ. P.
17(c)(l).
The District argues even if Ms. Lett may maintain the action on behalf of L.C., Ms. Lett
wishes to discontinue the action and we should must allow Ms. Lett to voluntarily dismiss the
complaint.
At our best interest hearing, Ms. Lett expressed her desire to discontinue this
lawsuit. 82 Ms. Lett stated additional psychological and behavioral testing would not be in L.C.'s
best interest. 83 Ms. Lett explained she believed the District is providing L.C. an appropriate
10
education. 84 Ms. Lett expressed the District collected an impressive amount of data and created
L.C.'s education plan on sufficient information. 85 Ms. Lett expressed concern the evaluations
would disrupt L.C.'s education plan and is unnecessary in light of L.C.'s recent performance in
school. 86
Unfortunately, it became clear at the best interest hearing Ms. Lett did not understand the
nature of the relief sought in L.C.' s complaint. She disagrees with the April 17, 2017 Order. But
the District did not appeal. The obligations are set. We explained to Ms. Lett the complaint filed
on L.C.' s behalf does not challenge the determination the evaluations must be completed and the
District does not challenge the Hearing Panel's findings. 87 The testing ordered by the Hearing
Panel will be completed by the District. The case instead centers on who is to provide the
evaluations at issue and from what list of evaluators. We explained whether the testing will be
completed is not at issue. Ms. Lett did not offer sufficient reason to simply allow the District
perform the evaluations at issue, rather than seek independent evaluation.
Even recognizing Ms. Lett's status as L.C. 's parent under IDEA, we may reject her
offered compromise of L.C.'s claim ifthe compromise is not in L.C.'s best interest. 88 Allowing
a parent to compromise a minor's claim in violation of the policies advanced by IDEA would
directly compromise Congress's intent in drafting IDEA and emphasis on procedural
safeguards. 89 Given Ms. Lett's insufficient reasoning for discontinuing this lawsuit and her
underlying misunderstanding of the nature of this lawsuit founding her reasoning, Ms. Lett's
request is not in L.C.'s best interest.
We find no reason to dismiss L.C.'s claim, which seeks greater selection of evaluators for
L.C.'s soon to be scheduled assessments.
Maintaining this lawsuit comes at no expense or
meaningful time commitment to Ms. Lett. Ms. Lett's belief the District is providing L.C. an
11
appropriate education is not an appropriate reason to dismiss this action seeking independent
evaluation of L.C. in certain upcoming assessments. The District and Ms. Lett have not adduced
evidence continuing this litigation would be a disruption or burden to L.C.'s education.
Ms. Lett's concern the lawsuit will interfere with L.C.'s relationship with the District is
unsupported. 90 We cannot imagine the extent of twelve-year old L.C.'s "relationship" with the
District. Ms. Lett should not be overly concerned with the District's view on continuing this
litigation; her obligation is to protect and advance L.C.'s best interests. If Ms. Lett's future
conduct manifests a concern with the District's feelings more than L.C.'s progress, we expect
Ms. Herel will promptly correct the situation or The McAndrews Firm or possibly Attorney
Soucek will seek court intervention. Ms. Lett's role has one focus on L.C.'s progress and does
not involve second guessing the April 17, 2017 Order or quasi-lawyering to dismiss L.C.'s
limited claims without consideration.
We fully expect, and the District has not offered a reason for us to believe otherwise, the
District will not retaliate against L.C. for maintaining this lawsuit. Because Ms. Lett is a parent
under IDEA and may maintain this lawsuit on behalf of L.C. and finding Ms. Lett's request for
voluntary dismissal of the complaint is not in L.C.'s best interest, we deny the District's motion
to dismiss for lack of standing.
B. We deny L.C.'s present motion for appointment of guardian ad litem.
L.C. moves for the appointment of a guardian ad litem. L.C. argues Ms. Lett is not acting
in her best interests as evidenced by Ms. Lett's desire to voluntarily dismiss this lawsuit without
consideration from the District. L.C. argues Fed. R. Civ. P. 17 allows us to appoint a guardian
ad litem when a minor and the minor's current representative face a conflict of interest.
12
Relying on Muse B. v. Upper Darby Sch. Dist., 91 L.C. argues we should appoint guardian
ad litem. But we are not yet at the Muse B. level. In Muse B., the mother of Muse B. raised
concerns about the implementation of a consent decree entered into with the school district,
demanded her consent to the decree be revoked, and alleged her counsel "sold out" her child's
rights. 92 The mother attempted to discharge her counsel, but under governing law at the time, the
mother could not proceed in the IDEA action pro se. 93 After a hearing, the mother consented to
continue the lawsuit with her attorneys. 94
But shortly after, the mother again refused to
communicate and work with her attorneys delaying resolution of her underlying complaints
relating to the consent decree. 95
After a second hearing, the court concluded the mother's
repeated inability to work with counsel harmed her child's interests in pursuing claims
challenging the consent decree deemed meritorious by her counsel. 96 Despite recognizing a
parent's fundamental right to make decisions regarding his or her child's education, the court
appointed an independent guardian ad litem. 97 The court ordered the Clerk of Court to reimburse
the guardian's fees and costs. The court cited the overriding and compelling need under IDEA
of timely resolution of the consent decree implementation dispute. 98 The guardian would consult
with the mother, but retained final authority to resolve all issues regarding the implementation of
the consent decree. 99
The District argues the appointment of guardian ad litem is not required because Ms. Lett
is acting as L.C.'s representative in this lawsuit and has the authority to discontinue the litigation
if she finds it in L.C.'s best interest. We already rejected this argument.
The District also cites the July 20, 2017 Family Court Order appointing Attorney Soucek
as L.C. 's attorney in L.C. 's then pending dependency proceeding. The District argues we should
not appoint a guardian ad litem in light of Attorney Soucek's appointment in Family Court.
13
We easily dispose of the District's argument we do not need a guardian based on
Attorney Soucek's involvement. Attorney Soucek's appointment as L.C.'s child attorney in the
dependency proceeding in Family Court is of no moment in this IDEA action. The Family Court
appointed Attorney Soucek for the limited role of representing L.C. in her dependency
proceeding in state court. 100 Attorney Soucek confirmed her limited role and lack of authority
regarding L.C.'s educational rights and this IDEA action. 101 Ms. Soucek is not L.C. 's guardian
ad litem or attorney in this litigation. To the contrary, the state's later appointment of Ms. Lett
specifically included a role in this IDEA case. We reject the District's argument appoint of
guardian ad litem is unnecessary given Ms. Soucek's appointment.
But L.C.'s counsel's argument for a guardian ad litem is also premature. In concluding
we need not appoint guardian ad litem, we focus on the facts before us today. Unlike in Muse B.,
we do not face a present conflict of interest between L.C. and Ms. Lett to the point Ms. Lett's
continued role as educational surrogate parent would interfere with L.C.'s best interests. As
explained above, Ms. Lett is acting as L.C. 's representative and parent under IDEA and Fed. R.
Civ. P. 17. L.C. has not adduced evidence Ms. Lett's continued role as educational surrogate
parent and fiduciary under IDEA would interfere with the McAndrews Firm's rather limited
prosecution of L.C.'s complaint challenging the Hearing Panel's order. Although we recognize
Ms. Lett's desire to discontinue this litigation is not in L.C.'s best interest, L.C. has not adduced
evidence demonstrating Ms. Lett's continued involvement would be detrimental to L.C. at this
late stage. The McAndrews Firm already filed L.C.'s complaint and motion for judgment on the
administrative record. Following the District's response in opposition to L.C.'s motion, we will
be ready to assess the merits ofL.C.'s claims. 102 The McAndrews Firm completed the necessary
steps to present and support L.C. 's claim for our review.
14
We appreciate The McAndrews Firm's concern of potential issues relating to
enforcement of the Hearing Panel's Order. After our February 15, 2018 hearing, Ms. Lett
explained she accepts the Hearing Panel's Order and will work with the District to ensure all
assessments are completed. Notwithstanding her promise relied upon by us, the McAndrews
Firm speculates Ms. Lett will not actively enforce the Hearing Panel's Order given her stated
position at the best interest hearing none of the testing is necessary or appropriate. This concern
is compounded by the District's statement at the best interest hearing, "It's our position that the
Panel's decision does exist. We would ask her for permission to do those evaluations. I guess if
she refused to consent, then we can't move forward with it, but I don't think that that's the
question for today." 103
Ms. Lett's disagreement with the Hearing Panel's Order may not serve as a basis to
refuse ensuring compliance with the Order. The Hearing Panel's Order is not a recommendation
and is written in mandatory language directing the District perform the assessments ordered. 104
The Hearing Panel's purpose is to determine whether a child is receiving appropriate evaluation
and a free appropriate public education. 105 Acts by a parent (or Ms. Lett) in violation of a
hearing panel's order ensuring these rights may be acts against the child's best interests. We
have no evidence today Ms. Lett will disregard the Hearing Panel or judicial order creating a
conflict of interest in the future. In her most recent communication to The McAndrews Firm
after our best interest hearing, Ms. Lett confirmed she would ensure all assessments ordered by
the Hearing Panel are completed. 106
We deny L.C. 's motion to appoint a guardian ad litem without prejudice to be renewed
should L.C. and The McAndrews Firm believe Ms. Lett's and L.C.'s interests have diverged to
the extent appointment of guardian ad litem is necessary. We trust Ms. Lett will do as she
15
promised and, depending on our Order, work with the District to ensure all assessments are
completed. She must protect L.C. first. Should Ms. Lett refuse to act in compliance with the
Hearing Panel's Order or our Order, such failure to act may present a conflict of interest
sufficient to appoint guardian ad litem as well as other possible judicial sanction for disobeying a
court order. If further grounds arise, the McAndrews Firm can renew a motion for a guardian ad
litem but must propose suitable guardians and whether the proposed guardian will volunteer or
the terms of compensation for the proposed guardian including who will pay the guardian in this
District.
III.
Conclusion
Our accompanying Order is consistent with our limited role: did the Hearing Panel err in
defining who will provide the assessments, not whether these assessments will be scheduled. We
focus our analysis only on the District's motion to dismiss and L.C.'s motion to appoint guardian
ad litem. Today, after extensive briefing, evidence adduced at a fairness hearing and considering
argument from the District, L.C., and Ms. Lett, we deny both motions.
We deny the District's motion to dismiss as Ms. Lett is L.C.'s parent under IDEA and
may maintain an action on her behalf under Fed. R. Civ. P. 17(c). We deny L.C.'s motion for
appointment of guardian ad litem because L.C. has not adduced evidence of a present conflict of
interest between L.C. and Ms. Lett. We deny L.C.'s motion without prejudice to be renewed
should L.C. adduce evidence Ms. Lett is not acting in L.C.'s best interests under Fed. R. Civ. P.
17.
1
ECF Doc. No. 1~15.
2
Id.~~ 14, 15.
16
3
Id.~ 14.
4
Id.~ 16.
5
Id.
6
Id.~ 17.
7
Id.~l8.
8
Id.
9
Id.~ 19.
10
Id.
II
Id.~ 20.
12
Id.
13
Id.~ 23.
14
Id.
is Id.
16
Id.~ 24.
11
Id.
is Id.~ 25.
19
Id.~ 4.
20
Id.~ 5.
21Id.~6.
22
20 U.S.C. § 1400, et seq.
("McAndrews Firm").
23
ECF Doc. No. 25 at p. 7-8.
24
L.C.'s adoptive parents hired McAndrews Law Office, P.C.
Id.
17
25
ECF Doc. No. 38 at p. 7.
26
13 Del. C. § 2504(f).
27
29 Del. C. § 9007A(c)(l).
28
ECF Doc. No. 38 at p. 9.
29
Id.
30
Id.
31
Id.
32
ECF Doc. No. 25 at p. 10-11.
33
Id. at p. 10-11.
34
Id.
35
Transcript of Hearing, February 15, 2018 at p. 31.
36
The District challenges our jurisdiction under Rule 12(b)(l). Rule 12(b)(l) motions fall into
two categories; a facial or factual attack to jurisdiction. A facial attack "challenges subject
matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court
to 'consider the allegations of the complaint as true."' Davis v. Wells Fargo, 824 F.3d 333, 346
(3d Cir. 2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). A
factual challenge "attacks the factual allegations underlying the complaint's assertion of
jurisdiction, either through the filing of an answer or 'otherwise present[ing] competing facts.'"
Id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)). When a
factual challenge is made, there is no presumption of truthfulness attached to the plaintiffs
allegations and the court is free to consider evidence outside the pleadings. Id. (citing Mortensen
v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977)). When a factual challenge is
made, the plaintiff bears the burden of proof jurisdiction exists. Id.
The District makes a factual attack. The District challenges L.C. 's allegations in the complaint
B.C. and A.Z. are L.C.'s parents and argues the post-filing termination of the L.C.'s adoptive
parent's parental rights renders L.C. without standing to pursue her claims.
The District also moves for a stay on the briefing schedule on L.C.'s motion for judgment on the
administrative record until resolution of its motion to dismiss. We extended the District's time to
respond in opposition to L.C.'s motion for judgment to April 12, 2018. ECF Doc. No. 37. In
addition to the several weeks since the McAndrews Firm's January 19, 2018 motion for
18
judgment, the District still has just under three weeks from today's Order to prepare its
opposition. We deny the District's motion for a further stay.
37
Due to illness, she could not travel to the courtroom but with counsels' consent, we heard
from Ms. Lett by telephone.
38
Transcript of Hearing, February 15, 2018 at pp. 84-86.
39
Id.
40
Id. at pp. 36-38.
41
Id. at pp. 37.
42
Id. at pp. 37-38.
43
Id. at p. 38.
44
Id.
45
Id. at pp. 31-32, 53-57.
46
Id. at pp. 61-66.
47
Id.
48
Id.
49
Id. at p. 77.
50
Id. at p.78.
51
Id. at p.78.
52
Id. at pp. 80-81.
53
Id. at pp. 88-89.
54
ECF Doc. No. 34-1.
55
Id.
56
HE. v. Walter D. Palmer Leadership Learning Partners Charter Sch., 873 F.3d 406, 408 (3d
Cir. 2017) (quoting Honig v. Doe, 484 U.S. 305, 310 (1988)).
19
57
Id. (citing Honig, 484 U.S. at 311 ).
58
Id.; 20 U.S.C. § 1415(b), (f).
59
20 U.S.C. § 1415(i)(l)(A); see also D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d
Cir. 2014).
60
Id.
61
See 20 U.S.C. § 1415(i)(2)(C)(iii).
62
See HE., 873 F.3d at 408 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 205 (1982)).
63
Id. (quoting Rowley, 458 U.S. at 205-06).
64
Id. (quoting Rowley, 458 U.S. at 206).
65
Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009) (quoting 20
U.S.C. § 1415(b)(6)).
66
34 C.F.R. § 300.30(a)(l), (5).
67
Fed. R. Civ. P. 17(c)(l).
68
Fed. R. Civ. P. 17(c)(2).
69
Sam M v. Carcieri, 608 F.3d 77, 85 (1st Cir. 2010) (quoting Ad Hoc Comm. of Concerned
Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d Cir. 1989)).
70
Id. (citation omitted).
71
Robiduox v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011).
72
Id. (citation omitted); In re $139,000 in Interpleaded Funds, No. 16-05092, 2017 WL 700148,
*2 (W.D. Ark. Feb. 22, 2017) (collecting cases where district court found duty to safe guard
minor's interests in compromises of litigation under Rule 17); see also Nice v. Centennial Area
Sch. Dist., 98 F. Supp. 2d 665, 667 (E.D. Pa. Jun. 1, 2000) ("The court has an inherent duty to
protect the interests of minors and incompetents who appear before it. As part of that duty, the
court must determine the fairness of any settlement agreement ... in a suit brought on behalf of a
minor or incompetent.") (internal citation omitted). In resolving matters involving minor
plaintiffs, district courts typically rely on a local rule requiring court approval of settlement or
voluntary dismissal of the minor's complaint. We cite to outside authority because our District
does not presently have this local rule.
20
73
See e.g., Cooper v. Triwest Healthcare Alliance Corp., No. 11-2965, 2014 WL 11878352, at
*2 (S.D. Cal. Oct. 9, 2014) (rejecting unopposed motion for approval of settlement where
settlement "does nothing to protect [minor's] interests").
74
Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir. 1983) (internal citations omitted).
75
520 F. Appx. 912 (11th Cir. 2013).
76
Id.
77
Id.
78
Id.
79
The Department's appointment papers specifically identify Ms. Lett's authority to act as L.C. 's
parent under IDEA. ECF Doc. No. 25 at p. 11.
80
ECF Doc. No. 26 ,-r 10; ECF Doc. No. 38 p. 1.
81
See Fed. R. Civ. P. 17(c)(l).
82
Transcript of Hearing, February 15, 2018 at p. 75.
83
Id. at p. 49.
84
Id. at p. 37.
85
Id.
86
Id. at p. 49.
87
Id. at p. 62-63.
88
See Salmeron, 724 F.2d at 1364.
89
See HE., 873 F.3d at 408.
90
In their brief filed under our February 22, 2018 Order, the District claims Ms. Lett wishes to
discontinue the action in part because she wants to maintain a harmonious relationship between
L.C. and the District. ECF Doc. No. 34 at pp. 3-4.
91
No. 06-343, 2007 WL 2973709 (E.D. Pa. Feb. 14, 2007).
92
Id. at *l.
21
93
Id. at *1-2.
94
Id. at *2.
95
Id. at *2.
96
Id. at *3.
97
Id. at *4.
98
Id.
99
Id. at *4-5.
ioo ECF Doc. No. 38 at p. 7.
101
Id. at p. 9.
102
The District's response is due April 12, 2018.
103
Transcript of Hearing, February 15, 2018 at p. 62-63.
104
ECF Doc. No. 7-1 at pp. 7-10.
105
See HE., 873 F.3d at 408.
106
ECF Doc. No. 34-1.
22
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