Education, Department of, State of Hawaii v. L. et al
Filing
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ORDER AFFIRMING IN PART AND REMANDING DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER re 1 . Signed by JUDGE DERRICK K. WATSON on 12/15/2014. ~ The Court affirms the AHO's decision to hold an additional evidentiary hear ing on remand and to deny the DOE's motion to recuse the AHO from the remand proceedings. The Court now remands to the AHO for further explanation of the AHO's December 27, 2013 credibility findings and conclusions with respect to a buse witnesses, including, but not limited to, Balinben, Izumigawa, and Boteilho. The AHO must enumerate specific reasons based on the evidence in the record to support her credibility assessments. (ecs, )CERTIFIC ATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
In the Matter of
CIVIL NO. 14-00034 DKW-RLP
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
ORDER AFFIRMING IN PART
AND REMANDING DECISION OF
THE ADMINISTRATIVE
HEARINGS OFFICER
Plaintiff,
vs.
RIA L., by and through her Parent,
RITA L.,
Defendants.
ORDER AFFIRMING IN PART AND REMANDING DECISION OF THE
ADMINISTRATIVE HEARINGS OFFICER
This is the second appeal in Ria L.’s (“Student”) case. At the conclusion of
the first appeal to this Court, Judge Ezra issued an Order Vacating and Remanding
Decision of the Administrative Hearings Officer (“AHO”), instructing the State to
determine whether the allegations of abuse of Student resulted in the denial of a
free appropriate public education (“FAPE”). DOE v. Ria L., et al., CV No. 1200007 HG-KSC, Dkt. No. 27 (D. Haw. July 31, 2012). On December 27, 2013,
the AHO found in the affirmative, issuing Findings of Fact, Conclusions of Law
and Decision (“Decision”), which held, among other things, that Student was
abused and that such abuse resulted in the denial of FAPE. The Department of
Education, State of Hawai‘i (“DOE”) now appeals that December 27, 2013
Decision. The Court affirms the AHO’s determination that it was permissible to
take additional evidence on remand and affirms the AHO’s decision denying the
State’s recusal request. However, because the AHO’s key underlying
determinations of credibility are conclusory and provide no rationale or
explanation for this Court to meaningfully review on appeal, the Court remands
again with instructions to elaborate and enumerate specific reasons, based on
evidence in the record, supporting the AHO’s credibility assessments.
BACKGROUND
This is an appeal of the AHO’s decision on remand following District Judge
Ezra’s July 31, 2012 order (“Remand Order”). DOE v. Ria L., et al., CV No. 1200007 HG-KSC, Dkt. No. 27 (D. Haw. July 31, 2012). The extensive factual
history prior to Judge Ezra’s remand and this appeal can be found in that Remand
Order and is not repeated here.
Student was 11 years old at the time of the AHO’s decision on remand.
Since February 2008, she has been eligible to receive special education and related
services pursuant to the IDEA under the category of intellectual disability
(formerly known as mental retardation). Student attended Kipapa Elementary
School (“Home School”) for preschool, kindergarten, and grades 1 and 2, up until
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February 2011 when Parent removed Student from the Home School, and Student
began attending Autism Behavior Consulting Group, Inc. Approximately one
month later, Student, through her Parent, requested an administrative hearing,
alleging that the DOE violated the IDEA by denying her FAPE. Parent made
numerous allegations that were disposed of by Judge Ezra and are not at issue here.
Relevant here, Parent alleged that Student had been subject to physical, verbal, and
psychological abuse and punitive discipline in the classroom at the Home School.
Following a six-day administrative hearing, the Hearings Officer found that
procedural and substantive errors in Student’s 2009 and 2010 Individualized
Education Programs (“IEP”) amounted to a denial of FAPE. The DOE appealed
the administrative decision. On July 31, 2012, Judge Ezra concluded that the 2009
and 2010 IEPs did not deny Student FAPE and thus vacated the AHO’s decision to
that effect. Judge Ezra also remanded for a determination on the allegations of
abuse—
Based on the AHO’s decision, it appears that the AHO declined to
address the abuse allegations in light of her determination that Ria
was denied a FAPE on other grounds. Therefore, the Court
REMANDS this case to the AHO for the limited purpose of
addressing: (1) whether the allegations of abuse in the due process
hearing request resulted in the denial of FAPE, and (2) if so, the
appropriate remedy for such denial.
Remand Order at 45.
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On remand, the AHO denied the DOE’s motion to determine the issues on
remand on the existing record, and instead, held a further evidentiary hearing.1 At
the additional evidentiary hearing, Barbara Balinben, the Home School
paraprofessional trainer, testified for the first time.2 Balinben testified that the
special education teacher, Sheila Izumigawa, and the educational assistant, Kim
Boteilho, restrained Student and force fed her because Student had an eating
problem and would not eat. Balinben further testified that Student was force fed to
the point of vomiting, and that Student was forced to vomit into her own shirt and
then forced to wear that shirt through the remainder of the school day. Balinben
also testified that this force-feeding and vomiting occurred on a regular basis.
Decision at 12–16.
1
During the additional proceedings on remand, the DOE also moved to recuse the AHO, which
the AHO denied. Decision at 5.
2
As Judge Ezra noted, in the initial 6-day administrative hearing,
The AHO heard testimony from the following witnesses: (1) Sheila Izumigawa,
Ria’s Special Education teacher for the 2009-2010 and 2010-2011 school years,
(2) Gayle Ishikawa, the District Education Specialist for the Central Oahu School
District, (3) Kim Boteilho, the Home School Educational Assistant, (4) Lynn Lee,
the Home School Student Services Coordinator, (5) Amy Weisch, the CEO of
Autism Behavior Consulting Group and behavior analyst who assessed Ria in
February 2011, (6) Karen Tyson, a Licensed Clinical Psychologist who performed
a neuropsychological evaluation of Ria in May 2011, (7) Rita Lopez, Ria’s
mother, (8) Kim Machida, the DOE Psychological Examiner, (9) Dawn FukuiMayeda, the DOE Speech Language Pathologist, (10) Julie Broussard Suenaga,
Ria’s General Education Teacher for the 2010-2011 school year, and (11) Joseph
Acklin, a Licensed Psychologist and Supervisor of School Psychologists and
Psychological Examiners for the Central Oahu School District.
Remand Order at 9–10. Ms. Balinben did not testify in the 6-day administrative hearing.
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Izumigawa and Boteilho did not testify at the additional evidentiary hearing
on remand, but they did testify as part of the prior 6-day administrative hearing. In
that previous testimony, both Izumigawa and Boteilho denied the allegations of
force-feeding. While Izumigawa and Boteilho confirmed that Student often
refused to eat, and sometimes vomited, they plainly denied any allegations of
force-feeding or other mistreatment by themselves or anyone else interacting with
Student. Decision at 17–20.
In light of this inconsistent and irreconcilable testimony, the AHO discussed
the credibility of Balinben, Izumigawa, and Boteilho:
The AHO listened to the testimony of all of the witnesses in
this case.
The testimony of [Izumigawa] and [Boteilho] stand in stark
contrast with the testimony of [Balinben].
In order to resolve this issue, and the question of credibility, the
AHO weighed the sworn testimony very carefully to determine
whether and to what extent each witness should be believed. In
deciding the appropriate weight of each witness’s testimony, the AHO
considered the following factors:
(a) The witness’s demeanor;
(b) The witness’s manner of testifying;
(c) The witness’s candor or frankness, or lack thereof;
(d) The witness’s interest, if any, in the result of the case;
(e) The witness’s relation, if any, to a party;
(f) The witness’s means and opportunity of acquiring
information;
(g) The probability or improbability of the witness’[s]
testimony;
(h) The extent that the witness is supported or
contradicted by other evidence; and
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(i) The extent to which the witness has made
contradictory statements.
When weighing the effect of inconsistencies, whether the
inconsistencies were within a witness’s own testimony or between
different witnesses, the AHO considered whether the inconsistencies
were important matters or unimportant details, and whether the
inconsistencies arose from innocent error or deliberate fabrication.
Based on the observation of the sworn testimony and on the
consideration of the foregoing factors, the AHO finds the testimony of
[Balinben] to be credible, and the testimony of [Izumigawa] and
[Boteilho] to be not credible, and as a result, finds that the abuse of
Student in Classroom “X” occurred.
Decision at 49. The only explanation provided by the AHO for her adverse
credibility determination of Izumigawa and Boteilho was the following footnote:
The sworn testimony of [Izumigawa] and [Boteilho] were riddled with
inconsistencies.
This included inconsistencies within their own statements,
inconsistencies within the statements of the other witnesses, and
inconsistencies with the documentary evidence.
The AHO found that the inconsistencies in the testimony of
[Izumigawa] and [Boteilho] were related to important matters, and not
unimportant details.
Decision at 49.
The DOE’s subsequent appeal of the AHO’s decision on remand is presently
before the Court.
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STANDARD OF REVIEW
I.
IDEA Overview
“The IDEA is a comprehensive educational scheme, conferring on disabled
students a substantive right to public education and providing financial assistance
to enable states to meet their educational needs.” Hoeft ex rel. Hoeft v. Tucson
Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v. Doe, 484
U.S. 305, 310 (1988)). It 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[.]” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA defines FAPE as special education and related
services that -(A) have been provided at public expense, under public supervision
and direction, and without charge;
(B) meet the 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 required under section 1414(d) of this title.
20 U.S.C. § 1401(9). To provide a FAPE in compliance with the IDEA, a state
educational agency receiving federal funds must evaluate a student, determine
whether that student is eligible for special education, and formulate and implement
an IEP. 20 U.S.C. § 1414. The IEP is to be developed by an “IEP Team”
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composed of, inter alia, school officials, parents, teachers and other persons
knowledgeable about the child. 20 U.S.C. § 1414(d)(1)(B).
“Procedural flaws in the IEP process do not always amount to the denial of a
FAPE.” L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009)
(citations omitted). Once a procedural violation of the IDEA is identified, the
court “must determine whether that violation affected the substantive rights of the
parent or child.” Id. (citations omitted). “[P]rocedural inadequacies that result in
the loss of educational opportunity, or seriously infringe the parents’ opportunity to
participate in the IEP formulation process, clearly result in the denial of a FAPE.”
Id. (alteration in original) (citations and quotation marks omitted).
Compliance with the IDEA does not require school districts to provide the
“absolutely best” or “potential-maximizing” education. J.W. v. Fresno Unified
Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010) (citation and internal quotation marks
omitted). Rather, school districts are required to provide only a “‘basic floor of
opportunity.’” Id. (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 201 (1982)). The FAPE need only be “appropriately
designed and implemented so as to convey [the][s]tudent with a meaningful
benefit.” Id. at 433 (citations and quotation marks omitted).
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II.
Standard of Review
The standard for district court review of an administrative decision under the
IDEA is set forth in 20 U.S.C. § 1415(i)(2)(C), which provides:
In any action brought under this paragraph, the court—
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence,
shall grant such relief as the court determines is appropriate.
This standard requires that the district court give “‘due weight’” to the
administrative proceedings. Capistrano, 556 F.3d at 908 (quoting Rowley, 458
U.S. at 206) (some citations omitted). The district court, however, has the
discretion to determine the amount of deference it will accord the administrative
ruling. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir.
2010) (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir.
1987)). In reaching that determination, the court should consider the thoroughness
of the hearings officer’s findings, increasing the degree of deference where said
findings are “‘thorough and careful.’” Capistrano, 556 F.3d at 908 (quoting
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)).
The district court should give “substantial weight” to the hearings officer’s
decision when the decision “evinces his careful, impartial consideration of all the
evidence and demonstrates his sensitivity to the complexity of the issues
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presented.” Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d
1458, 1466–67 (9th Cir. 1996) (citation and quotation marks omitted). Such
deference is appropriate because “if the district court tried the case anew, the work
of the hearing officer would not receive ‘due weight,’ and would be largely
wasted.” Wartenberg, 59 F.3d at 891. “[T]he ultimate determination of whether
an IEP was appropriate,” however, “is reviewed de novo.” A.M. ex rel. Marshall v.
Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing
Wartenberg, 59 F.3d at 891).
A court’s inquiry in reviewing IDEA administrative decisions is twofold:
First, has the State complied with the procedures set forth in the Act?
And second, is the individualized educational program developed
through the Act’s procedures reasonably calculated to enable the child
to receive educational benefits? [Rowley, 458 U.S. at 206–07]
(footnotes omitted). If these requirements are met, the State has
complied with the obligations imposed by Congress and the courts can
require no more. Id. at 207.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir. 2010) (some citations
omitted).
The burden of proof in IDEA appeal proceedings is on the party challenging
the administrative ruling. Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099,
1103 (9th Cir. 2007) (citations omitted). The challenging party must show, by a
preponderance of the evidence, that the hearing decision should be reversed. J.W.,
626 F.3d at 438 (citation omitted).
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DISCUSSION
As a threshold matter, the DOE renews its arguments made to the AHO on
remand that the AHO violated the “rule of mandate” by holding an evidentiary
hearing to take additional evidence related to the allegations of abuse. According
to the DOE, Judge Ezra did not instruct the AHO to take additional evidence on
remand.
While it is true that Judge Ezra did not instruct the AHO to take additional
evidence, it is “more true” to state that Judge Ezra’s remand order did not address
the issue of additional evidence. Stated simply, Judge Ezra recognized that the
AHO had not reached a conclusion on the allegations of abuse and whether that
alleged abuse, if it occurred, resulted in a denial of FAPE for Student. Therefore,
Judge Ezra remanded the matter to the AHO to consider this question in the first
instance. There was no directive from Judge Ezra either way as to whether the
AHO should or should not consider additional evidence. Without a clear mandate
to the contrary, the Court cannot conclude that it was error for the AHO to decide
to hold an additional evidentiary hearing on remand.
As a second threshold matter, the DOE contends that the AHO should have
recused herself from the remand proceedings. The DOE contends that the AHO
“prejudged the case and had developed an emotional connection that clouded her
judgment.” Opening Br. at 18. The DOE also contends that the AHO made a
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“litany” of erroneous legal rulings that demonstrate bias and further support
recusal. Id. at 18-20.
The Court disagrees for several reasons. First, cause for recusal generally
stems from extrajudicial sources. See Pesnell v. Arsenault, 543 F.3d 1038, 1043
(9th Cir. 2008). No such extrajudicial source is even alleged here. To the
contrary, the DOE’s allegations stem solely from the AHO’s conduct during the
administrative proceedings. Second, “judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540,
555 (1994).
In and of themselves . . . they cannot possibly show reliance upon an
extrajudicial source. . . . Second, opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible. Thus, judicial remarks during
the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible.
Id.
Third, the examples cited by the DOE reveal nothing improper about the
AHO’s conduct, nor do they cast light on any extrajudicial bias. The examples are
certainly suggestive of the AHO’s disagreement with a number of the DOE’s legal
contentions, disagreements that were borne out in the AHO’s December 2013
findings and conclusions. But none of the conduct alleged persuades this Court
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that the AHO has taken any action that might give rise to an appearance of
impropriety or reasonably call into question her impartiality.
Turning to the AHO’s actual conclusions after hearing additional evidence
on remand, the Court determines that the AHO provided insufficient explanation
for the key credibility assessments of Balinben, Izumigawa, and Boteilho. Without
a basis to review those credibility assessments, the Court can go no further in
reviewing the merits of the remand decision. Thus, the Court must remand again
for further explanation.
As noted in the background section above, the AHO laid out numerous
factors that should be considered in determining the credibility of witnesses.
Further, the AHO noted that she considered these factors in analyzing the
conflicting testimony of Balinben, Izumigawa, and Boteilho, testimony that was
critical to the AHO’s finding of abuse. Decision at 49. However, after noting the
factors to consider to determine credibility, and stating that she had considered
those factors, the AHO jumped to a single conclusory sentence that she was
crediting the testimony of Balinben and discrediting the testimony of Izumigawa
and Boteilho:
Based on the observation of the sworn testimony and on the
consideration of the foregoing factors, the AHO finds the testimony of
[Balinben] to be credible, and the testimony of [Izumigawa] and
[Boteilho] to be not credible, and as a result, finds that the abuse of
Student in Classroom “X” occurred.
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Decision at 49. The only window into the underlying basis for these credibility
determinations comes in the AHO’s footnote to the quoted language above, which
states:
The sworn testimony of [Izumigawa] and [Boteilho] were riddled with
inconsistencies.
This included inconsistencies within their own statements,
inconsistencies within the statements of the other witnesses, and
inconsistencies with the documentary evidence.
The AHO found that the inconsistencies in the testimony of
[Izumigawa] and [Boteilho] were related to important matters, and not
unimportant details.
Decision at 49. However, the AHO did not provide a single specific example of
any such inconsistency, and the Court will not speculate on what evidence the
AHO may have relied on. Without some specific reason based on actual evidence
in the record, and given the critical importance of the AHO’s credibility
assessment on her ultimate findings, the Court is left with no ability to conduct
meaningful judicial review of the credibility determinations of Balinben,
Izumigawa, and Boteilho.3 See, e.g., Benton v. Barnhart, 331 F.3d 1030, 1040
(holding that in the social security context, the administrative law judge (“ALJ”)
3
The Court recognizes the “general principles of administrative law which give deference to the
unique knowledge and experience of state agencies while recognizing that a[n A]HO who
receives live testimony is in the best position to determine issues of credibility.” Amanda J. v.
Clark Cty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001). The Court is prepared to give the
appropriate deference to the AHO’s credibility determinations. However, without any
explanation of the reasons for such determinations, there is nothing for the Court to even defer
to.
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may reject the testimony of witnesses in favor of others “if the ALJ makes findings
setting forth specific legitimate reasons based on substantial evidence in the
record.”).
CONCLUSION
The Court affirms the AHO’s decision to hold an additional evidentiary
hearing on remand and to deny the DOE’s motion to recuse the AHO from the
remand proceedings. The Court now remands to the AHO for further explanation
of the AHO’s December 27, 2013 credibility findings and conclusions with respect
to abuse witnesses, including, but not limited to, Balinben, Izumigawa, and
Boteilho. The AHO must enumerate specific reasons based on the evidence in the
record to support her credibility assessments.
IT IS SO ORDERED.
DATED: December 15, 2014 at Honolulu, Hawai‘i.
DOE v. RIA L., et al.; CV 14-00034 DKW-RLP; ORDER AFFIRMING IN PART
AND REMANDING DECISION OF THE ADMINISTRATIVE HEARINGS
OFFICER
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