D.T. v. Cherry Creek School ( 2022 )


Menu:
  • Appellate Case: 21-1265     Document: 010110786446       Date Filed: 12/20/2022    Page: 1
    FILED
    United States Court of Appeals
    PUBLISH                                Tenth Circuit
    UNITED STATES COURT OF APPEALS                        December 20, 2022
    Christopher M. Wolpert
    FOR THE TENTH CIRCUIT                           Clerk of Court
    _________________________________
    D.T., a minor, by and through his parent
    Yasiris T.,
    Plaintiff - Appellant,
    v.                                                           No. 21-1265
    CHERRY CREEK SCHOOL DISTRICT
    NO. 5,
    Defendant - Appellee.
    _________________________________
    Appeal from the United States District Court
    for the District of Colorado
    (D.C. No. 1:20-CV-00706-LTB-SKC)
    _________________________________
    Igor Raykin (Michael Nolt with him on the briefs), Kishinevsky & Raykin, Attorneys at
    Law, Aurora, Colorado, for Plaintiff - Appellant.
    Elliott V. Hood (Elizabeth R. Friel with him on the brief), Caplan and Earnest LLC,
    Boulder, Colorado, for Defendant – Appellee.
    _________________________________
    Before HOLMES, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
    _________________________________
    MURPHY, Circuit Judge.
    _________________________________
    I.     INTRODUCTION
    In the fall of 2015, D.T. enrolled as a freshman at Cherokee Trail High School
    in Aurora, Colorado. During his tenure at Cherokee Trail, he suffered from
    Appellate Case: 21-1265     Document: 010110786446         Date Filed: 12/20/2022     Page: 2
    depression and a general decline in academic performance. While D.T. struggled with
    his mental health, his mother regularly communicated with school officials regarding
    his well-being and coordinated in-school support. During the first semester of his
    junior year, D.T. was reported for making a school shooting threat. As a result, he
    was expelled from Cherokee Trail and the Cherry Creek School District (“the
    District”) initiated a special education assessment. In December 2017, the District
    concluded D.T. suffered from a Serious Emotional Disability and approved an
    individualized education program (“IEP”) to assist his learning.
    D.T. appeals from the district court decision confirming an administrative
    ruling that the District did not deny him access to a free, appropriate public education
    (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”).
    
    20 U.S.C. § 1400
    –19; see also infra III.a. (explaining the unusual manner in which
    IDEA litigation proceeds in federal court). He argues the District knew or should
    have known he suffered from an IDEA-recognized disability prior to initiating a
    special education evaluation in November 2017. D.T. asks this court to conclude the
    District violated its obligation to identify, or “child find,” students with disabilities
    who require supplementary academic supports. See 
    id.
     § 1412(a)(3). To the contrary,
    throughout his enrollment at Cherokee Trail, the District acted reasonably to preserve
    his access to the benefit of general education. The District’s duty to assess and
    provide D.T. with special education services did not begin until his emotional
    2
    Appellate Case: 21-1265      Document: 010110786446      Date Filed: 12/20/2022   Page: 3
    dysfunction1 manifested in the school environment by way of his shooting threat.
    Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
    , we affirm the district court
    ruling.
    II.   BACKGROUND
    a. FACTUAL HISTORY
    D.T. and his family moved from Florida to Colorado in 2015. Shortly
    thereafter, he began his freshman year at Cherokee Trail. Cherokee Trail had a much
    larger student body than that to which D.T. was accustomed. Although he performed
    well academically his first year, he expressed difficulty connecting with his peers and
    teachers in his new environment. In January 2016, D.T.’s mother first emailed his
    assigned school counselor, Mr. Jasurda, conveying concern about D.T.’s well-being.
    She described her son as depressed and struggling to acclimate to Cherokee Trail.
    D.T. completed his freshman year with mostly As and Bs, earning a 3.36 weighted
    GPA.2
    1
    As described by the Colorado Exceptional Children’s Education Act
    (“ECEA”), emotional dysfunction refers to pervasive inappropriate behaviors or
    feelings in otherwise normal settings that interfere with social or academic
    development. See e.g., 1 C.C.R. 301-8 § 2.08(3). In addition to IDEA and its federal
    enabling regulations, the ECEA includes jurisdiction-specific requirements for
    special education administration. See infra § III.b. Emotional dysfunction is also
    closely associated with emotional dysregulation, which describes difficulty
    maintaining emotional reactions within traditionally accepted norms. See generally,
    AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF
    MENTAL DISORDERS 65, 155 (5th Ed. 2013).
    2
    The GPA scale for honors courses is higher than grade level courses. A
    weighted GPA factors in this higher scale to reflect the added rigor of honors
    courses. An unweighted GPA does not weigh courses on different scales.
    3
    Appellate Case: 21-1265    Document: 010110786446        Date Filed: 12/20/2022     Page: 4
    During his sophomore year, D.T.’s grades began a downward tilt. In
    preparation for applying to college, he enrolled in three honors classes: Chemistry,
    English, and Spanish. Mr. Jasurda recommended he switch to grade level English
    after he earned a D in his first semester of the honors course, but he declined. He
    received a 2.48 weighted GPA during fall semester of his sophomore year and a 2.35
    weighted GPA the following spring. He failed his spring honors English course. D.T.
    enrolled in grade level English during the following summer term earning a B+.
    Sophomore year also brought strain for D.T. outside the classroom. His
    academic file indicates “an after-school concern” was reported on October 6, 2016.
    Mr. Jasurda contacted the local Sheriff’s Department to conduct a welfare check and
    D.T. was reported as “OK.” On April 23, 2017, D.T.’s mother sent Mr. Jasurda an
    email relaying D.T.’s struggles with suicidal ideation. Her message described a
    recent incident in which he attempted to “jump in front of a car” after a fight with his
    family. The following day, the school psychologist, Dr. Liguori, conducted a suicide
    risk assessment and concluded D.T. was of high concern. Dr. Liguori referred him to
    the Colorado Crisis Center for follow-up evaluation. Dr. Liguori also provided D.T.’s
    mother with a list of therapists and a referral to the Second Wind Fund, which
    provides financial assistance to families with children in need of mental health
    counseling. On May 7, his mother emailed Dr. Liguori stating D.T. “seem[ed] to have
    turned things around” after the risk assessment but has since experienced emotional
    distress at home and potentially abused drugs. Her message added, “calling the
    therapist you gave me will only waste those peoples time as he will not cooperate.”
    4
    Appellate Case: 21-1265   Document: 010110786446       Date Filed: 12/20/2022    Page: 5
    Unfortunately, fall semester of his junior year provided further tumult. On
    September 14, 2017, his mother emailed Mr. Jasurda reiterating D.T.’s at-home
    behavioral issues and her suspicions of his drug use. Mr. Jasurda met with him the
    following day and discussed strategies to approach his academic and familial
    concerns. Based on their conversation, Mr. Jasurda did not perceive he was using
    drugs, but D.T. reported feeling depressed and discontented with family life. Three
    days later, on September 18, D.T. had an argument with his parents which resulted in
    him leaving the house late at night. The next morning, he checked into Children’s
    Hospital Colorado for mental health evaluation and inpatient psychiatric treatment.
    He was discharged on September 24 with diagnoses of Major Depressive Disorder
    and Unspecified Anxiety Disorder. The discharge notes recommended individual
    therapy and a transition meeting to prepare for going back to school. Two days later,
    Dr. Liguori met with D.T. and his mother to discuss a re-entry plan. The plan called
    for Dr. Liguori and Mr. Jasurda to regularly check-in with him and coordinate with
    teachers to provide academic accommodations, such as clarifications on outstanding
    work, waiver of non-essential assignments, and additional tutoring.
    On September 30, D.T.’s mother emailed Dr. Liguori to report she caught her
    son “doing weed.” Two weeks later, on October 11, she emailed Dr. Liguori and Mr.
    Jasurda requesting a § 504 plan.3 See Rehabilitation Act of 1973, 
    Pub. L. No. 93-112, 3
    Like IDEA, § 504 requires students with disabilities be provided FAPE. See
    
    29 U.S.C. § 794
    ; 
    34 C.F.R. § 104.33
    (a). Unlike IDEA, which focuses on special
    education, § 504 encompasses academic aids within regular or special education. See
    5
    Appellate Case: 21-1265    Document: 010110786446       Date Filed: 12/20/2022       Page: 6
    
    87 Stat. 355
    -94 (codified as amended at 
    29 U.S.C. §§ 701
    –97). Dr. Liguori offered a
    preliminary meeting that week but indicated it would take longer to set up a formal
    § 504 review. On October 13, D.T.’s mother met with Dr. Liguori to discuss
    implementing more immediate academic supports. The school referred D.T. to Ms.
    Lewis, a teacher who specializes in helping students with organizational skills. Ms.
    Lewis sent two hall passes to meet with him, but D.T. did not respond. He also did
    not report when Mr. Jasurda sent a hall pass to him on November 9 after his father
    notified Mr. Jasurda about a recent argument he had with his son.
    On November 10, a student reported D.T. had threatened to “shoot up the
    school.” School officials convened a threat assessment, at which D.T. admitted to the
    statements but denied any desire to hurt anyone. D.T. left school after being
    dismissed from the evaluation and he called his mother saying he was going to hurt
    himself. Shortly thereafter, he was admitted to Children’s Hospital for inpatient
    psychiatric treatment. On November 15, he discharged from the hospital with
    diagnoses of recurrent and severe Major Depressive Disorder without psychotic
    features and Generalized Anxiety Disorder. The discharge notes indicated he was not
    a threat to others but struggled with his own safety. The hospital also recommended
    an IEP “to help emotional support.” As a result of his threat, D.T. was first suspended
    e.g., McIntyre v. Eugene Sch. Dist. 4J, 
    976 F.3d 902
    , 911 (9th Cir. 2020). A § 504
    plan, therefore, is a written document describing a range of regular or special
    education services used to assist a student’s learning. Id. Due to § 504’s broader
    scope, a more specialized IEP may be used to satisfy § 504 requirements, but a § 504
    plan may not be used to satisfy IDEA requirements. Id. at 912; see also Miller ex rel.
    S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 
    565 F.3d 1232
    , 1246 (10th Cir. 2009).
    6
    Appellate Case: 21-1265   Document: 010110786446        Date Filed: 12/20/2022   Page: 7
    and then expelled from Cherokee Trail.4 D.T. transferred to the District’s
    home/hospital program. On November 17, Dr. Liguori conducted a preliminary
    psychological assessment as part of an evaluation for special education services. The
    report concluded D.T. had average cognitive ability but suffered emotional regulation
    issues associated with anxiety and depression. Dr. Liguori noted he “may benefit
    from added support within the home and school environments to address his social
    and emotional needs.”
    On December 13, the District held a meeting to determine whether D.T. was
    eligible for special education services under IDEA. The group concluded D.T. met
    criteria for a child with a Serious Emotional Disability (“SED”). They determined
    D.T.’s SED disrupted the reasonable benefit of his general education and necessitated
    special education services. The evaluating team also determined D.T.’s emotional
    dysfunction was not due solely to “social maladjustment.” Accordingly, the team
    developed an IEP with academic accommodations and a Behavior Intervention Plan
    (“BIP”) to assist D.T. with emotion regulation.
    D.T. completed his junior fall semester with a GPA below 2.0. After winter
    break, he transferred to George Washington High School in the Denver Public School
    District for the spring 2018 semester. His IEP was transferred to George Washington.
    4
    Prior to D.T.’s expulsion, a “manifest determination” meeting was conducted
    to evaluate whether the shooting threat arose out of D.T.’s disability. The
    determination team concluded the misconduct did not relate to a disability and
    therefore D.T. was subject to expulsion review. D.T. does not challenge his expulsion
    nor the District’s determination that his threat was not a manifestation of his
    disability.
    7
    Appellate Case: 21-1265     Document: 010110786446        Date Filed: 12/20/2022       Page: 8
    D.T. reported initial academic improvement at George Washington due to additional
    accommodations and teacher support. He earned a weighted GPA of 3.59 during his
    junior spring semester. D.T. testified his grades subsequently fell his senior year
    because he was “abusing drugs and lost focus.” He earned a weighted GPA of 2.64
    his senior fall semester and 2.55 his senior spring semester. D.T. graduated from
    George Washington in May 2019.
    b.     PROCEDURAL HISTORY
    Through his mother, D.T. filed a due process complaint with the Colorado
    Department of Education on April 23, 2019. The complaint stated the District knew
    or should have known he suffered from an SED as early as April 2017. D.T. argued
    the District, therefore, violated its child find duty by not commencing IEP procedures
    until November 2017. On December 10 and 11, 2019, a due process hearing was held
    before an administrative law judge in the Colorado Office of Administrative Courts.
    The ALJ found “insufficient evidence of the necessary SED qualifying conditions to
    suspect that D.T. was a child with a disability requiring special education . . . until
    November 2017 when D.T. threatened to ‘shoot up the school.’”
    D.T. brought a civil action in the United States District Court for the District
    of Colorado. See 
    20 U.S.C. § 1415
    (i)(2); 
    34 C.F.R. § 300.516
    . The district court
    agreed with the administrative findings. Although D.T. met the criteria for an SED by
    November 2017, the district court affirmed that not enough evidence existed prior to
    the shooting threat to trigger the District’s statutory child find obligations. The
    8
    Appellate Case: 21-1265    Document: 010110786446        Date Filed: 12/20/2022     Page: 9
    district court emphasized that D.T.’s educational benefit was only undermined when
    his emotional dysfunction manifested in the school setting by way of his threat.
    III.   ANALYSIS
    a. STANDARD OF REVIEW
    IDEA initially places IEP disputes under state-based administrative review.
    See 
    20 U.S.C. § 1415
    (f). Administrative adjudication of statutory claims is typically
    given substantial deference. See Garcia v. Bd. of Educ. of Albuquerque Pub. Sch.,
    
    520 F.3d 1116
    , 1125 (10th Cir. 2008). IDEA, however, requires district courts to
    apply a modified de novo standard when reviewing administrative decisions. 
    Id.
    Under this standard, a district court must: a) receive the records of the administrative
    proceedings; b) hear additional evidence at the request of a party; and c) base its
    decision on the preponderance of evidence. 
    20 U.S.C. § 1415
    (i)(2)(C). When
    conducting this review, district courts must give “due weight” to agency findings of
    fact, which are presumed correct. Garcia, 
    520 F.3d at 1125
    . This court applies the
    same “due weight” de novo standard in conducting appellate review of district court
    decisions under IDEA.5 
    Id.
    5
    This court has previously recognized this unusual standard of review upon
    appeal: “We recognize, though, that, while we are bound to apply a modified de novo
    standard of review, our rule represents the distinct minority position among circuit
    courts, see, e.g., Light v. Parkway C–2 Sch. Dist., 
    41 F.3d 1223
    , 1229 (8th Cir.1994);
    Oberti v. Bd. of Educ., 
    995 F.2d 1204
    , 1220 (3d Cir.1993); Gregory K. v. Longview
    Sch. Dist., 
    811 F.2d 1307
    , 1310 (9th Cir.1987). Our modified de novo approach also
    runs counter to the general standard of review suggested in Fed.R.Civ.P. 52(a). En
    banc reconsideration of our standard of review may well be appropriate at some
    point.” Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 
    540 F.3d 1143
    , 1150 n.6
    9
    Appellate Case: 21-1265    Document: 010110786446        Date Filed: 12/20/2022       Page: 10
    b. IDEA & ECEA
    Three bodies of law direct IDEA claims: first, IDEA itself; second, federal
    enabling regulations; and third, jurisdiction-specific regulations. See 
    20 U.S.C. § 1400
    –19; 34 C.F.R. Part 300; 1 C.C.R. 301-8. IDEA announces the broad
    requirement for states to provide students with free, appropriate public education, or
    “FAPE,” but relies on specific federal and state regulations for implementation. See
    
    20 U.S.C. § 1412
    (a)(1); see generally Ass’n for Cmty. Living in Colo. v. Romer, 
    992 F.2d 1040
    , 1042–43 (10th Cir. 1993). The basic vehicle to achieve FAPE is the
    development of an IEP for all eligible students. See Endrew F. ex rel. Joseph F. v.
    Douglas Cnty. Sch. Dist. RE-1, 
    137 S. Ct. 988
    , 994 (2017). IDEA requires an IEP for
    each child with a recognized disability. 
    20 U.S.C. § 1412
    (a)(4). D.T.’s claims
    concern two interrelated issues pertinent to FAPE: when a school’s “child find”
    obligation is triggered and what qualifies as a serious emotional disability, or “SED.”
    The child find obligation requires schools to proactively “identify, locate, and
    evaluate” students with disabilities who may need special education or other
    academic supports. 
    Id.
     § 1412(a)(3). A “child with a disability” is a student with a
    qualifying disability under IDEA and “who, by reason thereof, needs special
    education and related services.” 
    34 C.F.R. § 300.8
    (a)(1); 
    20 U.S.C. § 1401
    (3)(A).
    Federal regulation clarifies child find is triggered when children “are suspected of
    being a child with a disability . . . even though they are advancing from grade to
    (10th Cir. 2008). As in Luke P., however, the adopted standard of review does not
    alter the outcome of this case. 
    Id.
    10
    Appellate Case: 21-1265     Document: 010110786446        Date Filed: 12/20/2022       Page: 11
    grade.” 
    34 C.F.R. § 300.111
    (c)(1) (emphasis added). Thus, the child find duty is
    triggered when the school district has reasonable suspicion to believe that a student is
    a “child with a disability.” See J.M. ex rel. C.M v. Summit City Bd. of Educ., 
    39 F.4th 126
    , 142 (3d Cir. 2022); see also Wiesenberg v. Bd. of Educ. of Salt Lake City Sch.
    Dist., 
    181 F. Supp. 2d 1307
    , 1311 (D. Utah 2002). Districts must act “within a
    reasonable time after school officials are on notice of behavior that is likely to
    indicate a disability.” D.K. v. Abington Sch. Dist., 
    696 F.3d 233
    , 250 (3d Cir. 2012)
    (quotation omitted); see also Spring Branch Indep. Sch. Dist. v. O.W. ex rel. Hannah
    W., 
    961 F.3d 781
    , 791 (5th Cir. 2020). When a disability is found, IEP or
    individualized services assessment commences. 
    20 U.S.C. § 1412
    (a)(4).
    IDEA expressly includes “serious emotional disturbance” as a qualifying
    disability for purposes of receiving special education. See 
    20 U.S.C. § 1401
    (3)(A)(i).
    Federal regulation defines SED with five criteria, at least one of which must
    adversely affect academic performance and be displayed “over a long period of time
    and to a marked degree”:
    (A)    An inability to learn that cannot be explained by intellectual,
    sensory, or health factors.
    (B)    An inability to build or maintain satisfactory interpersonal
    relationships with peers and teachers.
    (C)    Inappropriate types of behavior or feelings under normal
    circumstances.
    (D)    A general pervasive mood of unhappiness or depression.
    (E)    A tendency to develop physical symptoms or fears associated
    with personal or school problems.
    
    34 C.F.R. § 300.8
    (c)(4)(i).
    11
    Appellate Case: 21-1265     Document: 010110786446        Date Filed: 12/20/2022       Page: 12
    In addition to these federal criteria, Colorado’s Exceptional Children’s
    Education Act (“ECEA”) provides requirements for determining if a student has an
    SED. See 1 C.C.R. 301-8 § 2.08(3). As a threshold matter, the child’s SED must
    yield either an academic impairment which interferes with their ability to receive the
    benefit of general education or a socio-emotional impairment which impedes their
    ability to maintain interpersonal relationships. Id. § 2.08(3)(b)(i)–(ii). Colorado’s
    ECEA also includes four mandatory qualifiers for an SED determination:
    i) A variety of instructional and/or behavioral interventions were
    implemented within general education and the child remains unable to
    receive reasonable educational benefit from general education.
    ii) Indicators of social/emotional dysfunction exist to a marked degree;
    that is, at a rate and intensity above the child’s peers and outside of his
    or her cultural norms and the range of normal development
    expectations.
    iii) Indicators of social/emotional dysfunction are pervasive and are
    observable in at least two different settings within the child’s
    environment. For children who are attending school, one of the
    environments shall be school.
    iv) Indicators of social/emotional dysfunction have existed over a period
    of time and are not isolated incidents or transient, situational responses
    to stressors in the child’s environment.
    Id. § 2.08(3)(c).
    Finally, the ECEA emphasizes an SED cannot be the product of mere “social
    maladjust[ment].” Id. § 2.08(3)(d). Collectively, to meet SED requirements under
    federal and state law in Colorado, an in-school student must experience social or
    emotional dysfunction that substantially impairs educational attainment or social
    12
    Appellate Case: 21-1265     Document: 010110786446        Date Filed: 12/20/2022     Page: 13
    development. Such dysfunction must be consistent, unusual, present in the school
    environment, and unmitigated by other academic or behavioral interventions.
    c. CHILD FIND & SED
    D.T. urges this court to determine the District should have suspected he had a
    disability prior to when it began IEP assessment. He argues enough evidence existed
    to trigger the District’s child find obligation as early as April 2017, when the
    school’s suicide risk assessment suggested a high degree of concern, but no later than
    September 2017, when he was first hospitalized for mental health treatment. This
    court agrees with the district court and administrative findings that D.T. did not
    satisfy the criteria for an SED determination until his November 2017 shooting
    threat, at which point the District’s child find duty began.
    The two issues presented, when D.T. qualified as having an SED and when the
    District’s child find obligation commenced, fit snugly together in this particular case.
    As discussed above, federal and state regulations prescribe discrete criteria for an
    SED determination. 
    34 C.F.R. § 300.8
    (c)(4)(i); 1 C.C.R. 301-8 § 2.08(3). By
    contrast, determining child find duties implicates a subjective inquiry into when a
    school should reasonably suspect a student has a qualifying disability. 
    34 C.F.R. § 300.111
    (c)(1); D.K, 696 F.3d at 250; Spring Branch Indep. Sch. Dist., 961 F.3d at
    791. The criteria used to classify an SED can act as a guide for determining whether
    a school had adequate information to implement special education supports. See e.g.,
    Leigh Ann H. ex rel. K.S. v. Riesel Indep. Sch. Dist., 
    18 F.4th 788
    , 797 (5th Cir.
    2021). As applied to D.T., three unmet elements of an SED under Colorado’s ECEA
    13
    Appellate Case: 21-1265     Document: 010110786446         Date Filed: 12/20/2022     Page: 14
    indicate the District’s child find obligation was not breached. Until November 2017,
    D.T.’s emotional dysfunction had not manifested in the school environment; the
    District actively engaged him with alternative interventions; and his struggles were
    readily explainable by acute, non-academic stressors.
    Under Colorado law, an SED determination requires the student display
    pervasive emotional dysfunction in at least two settings. 1 C.C.R. 301-8
    § 2.08(3)(c)(iii). For students enrolled in traditional school, one of these settings
    must be at school. Id. Given IDEA’s mission of protecting students’ FAPE, such a
    nexus between a student’s school and their disability is crucial. See Sytsema ex rel.
    Sytsema v. Acad. Sch. Dist. No. 20, 
    538 F.3d 1306
    , 1312 (10th Cir. 2008). Until
    D.T.’s shooting threat, in-school manifestation of his emotional dysfunction was
    scant. The incidents he uses to illustrate that the District violated its child find duty
    predominantly stem from at-home conduct. The April 2017 email which D.T. argues
    initially placed the District on notice of his disability described self-harm arising
    from arguments with his family. A follow-up email in May 2017 primarily discussed
    his at-home behavior, including “tantrums over food” and leaving the house without
    permission. Similarly, his September 2017 hospitalization resulted directly from an
    argument with his family. Despite these difficulties at home, the District reported no
    substantial behavioral issues during school, and he continued to engage in his studies.
    D.T. clearly struggled to regulate his emotions with his family throughout 2017, but
    these behavioral patterns did not manifest in the school environment and disrupt his
    ability to receive the benefit of general education.
    14
    Appellate Case: 21-1265     Document: 010110786446        Date Filed: 12/20/2022      Page: 15
    Without evidence of emotional dysfunction in the school setting, D.T. urges
    this court look to his negative attitude about school and his declining grades as
    evidence of in-school manifestation of an SED. D.T. testified to having difficulty
    connecting socially with teachers and students upon arriving at Cherokee Trail. He
    also noted his depression impacted his motivation to complete his studies during his
    sophomore and junior years. Without more, these facts do not qualify as the type of
    in-school manifestation of emotional dysfunction required for an SED determination
    or to trigger child find protocols. See 
    34 C.F.R. § 300.8
    (c)(4)(i). Until November
    2017, D.T. received the reasonable benefit of general education. Except for
    sophomore spring honors English, D.T. passed all his courses and did not
    demonstrate an academic or social impairment which created an inability to learn or
    connect with others. See id.; 1 C.C.R. 301-8 § 2.08(3)(b). Although this court takes
    seriously the toll depression and anxiety take on students’ learning, we do not
    construe mere declining grades and social difficulty as the kind of pervasive
    disability IDEA contemplates for an SED determination. See e.g., Leigh Ann H., 18
    F.4th at 797 (“[M]ixed academic success does not—in itself—trigger a school
    district’s obligation to evaluate”); Indep. Sch. Dist. No. 283 v. E.M.D.H., 
    960 F.3d 1073
    , 1081 (8th Cir. 2020) (recognizing an SED when a long-term “panoply” of
    mental health issues left a student terrified to even attend school); L.J. v. Pittsburg
    Unified Sch. Dist., 
    850 F.3d 996
    , 1002 (9th Cir. 2017) (recognizing an SED when
    multiple suicide attempts resulted in substantial school absences and the child
    repeatedly injured or threatened to injure his classmates and teachers).
    15
    Appellate Case: 21-1265    Document: 010110786446       Date Filed: 12/20/2022    Page: 16
    Colorado’s ECEA also requires a variety of instructional or behavioral
    interventions within general education be implemented without success prior to an
    SED determination. See 1 C.C.R. 301-8 § 2.08(3)(c)(i); see also J.M., 39 F.4th at 142
    (3d Cir. 2022). The District went to great lengths to ensure D.T.’s access to FAPE
    upon becoming aware of his struggles with mental health. When faced with acute
    mental health concerns, the school conducted a risk assessment and a robust re-entry
    plan with individualized supports. The school also consistently offered D.T.
    additional counseling and customized academic help. For those additional academic
    supports in which he participated, the school observed progress. For example, D.T.’s
    counselor attempted to redirect him to a grade level English course when he was
    struggling in the honors version of the class, and he succeeded when placed in the
    grade level course during summer school. On several occasions the school also
    provided outside therapeutic referral, additional counseling, and one-on-one
    educational services, with which D.T. refused to engage.6 When paired with the lack
    of in-school manifestation of emotional dysfunction, the school had no reason to
    suspect its general education supports were insufficient. Until November 2017, D.T.
    maintained the capacity to complete course material and meet academic standards,
    indicating his FAPE was preserved. See Durbrow v. Cobb Cnty. Sch. Dist., 
    887 F.3d 1182
    , 1194 (11th Cir. 2018).
    6
    D.T. does not argue he declined any of these services because his disability
    prevented him from taking advantage of them.
    16
    Appellate Case: 21-1265    Document: 010110786446        Date Filed: 12/20/2022      Page: 17
    Finally, Colorado law requires SED determinations to include lasting
    indications of emotional dysfunction that are not “isolated incidents or transient,
    situational responses in the child’s environment.” 1 C.C.R. 301-8 § 2.08(3)(c)(iv).
    There were several reasonable, acute, and non-academic explanations for D.T.’s
    mental health struggles. As discussed above, his episodes of emotional distress were
    strongly connected with familial disputes outside the school environment. Further,
    the record demonstrates he struggled with moving from Florida to Colorado and
    settling into an unfamiliar learning environment. D.T. also took a rigorous course
    load against his counselor’s advice, and he performed better when it was pared back.
    Lastly, he began engaging in regular drug use during his sophomore and junior
    years.7 These circumstances illustrate repeated situational responses to negative
    occurrences in D.T.’s life. Collectively, they represent several reasons why the
    school would not interpret his mental health struggles as a disability, but as reactions
    to independent stressors. In addition to the District’s academic interventions and a
    lack of in-school manifestation of his emotional dysfunction, these acute difficulties
    support the conclusion that reasonable suspicion of disability did not arise prior to
    November 2017. See Krawietz v. Galveston Indep. Sch. Dist., 
    900 F.3d 673
    , 677 (5th
    7
    D.T.’s testimony indicates he ceased his drug use upon transferring to George
    Washington High School and performed well in his spring 2018 semester. During his
    senior year, however, he returned to abusing drugs and his grades fell to marks
    similar to those he earned during his sophomore year at Cherokee Trail. His grades
    fell during his senior year despite the support of his IEP.
    17
    Appellate Case: 21-1265     Document: 010110786446         Date Filed: 12/20/2022     Page: 18
    Cir. 2018) (utilizing a totality-of-the-circumstances approach in the “child find”
    context).
    D.T. suggests a student’s hospitalization should be given particular weight in
    determining if child find obligations have begun. Hospitalization signals a degree of
    severity and concretely interferes with a student’s ability to attend school. See L.J.,
    850 F.3d at 1006. Nonetheless, the inquiry of whether a school should reasonably
    suspect a child has a disability under IDEA relies on several factors, of which
    hospitalization is but one. D.T. clearly struggled with mental health throughout 2017.
    Even with hospitalization, however, not enough evidence existed to trigger the
    District’s child find duties until his emotional dysfunction manifested in the school
    environment in the form of his shooting threat. Prior to November 2017, the District
    implemented several interventions to maintain D.T.’s access to FAPE and multiple
    non-academic difficulties existed in D.T.’s environment to explain his mental health
    struggles. After the shooting threat was made, D.T.’s emotional dysfunction impacted
    his ability to receive the benefit of general education and the District fulfilled its
    child find duty by acting promptly to assess him for special education services.
    IV.    CONCLUSION
    For those reasons set out above, the order entered by the United States District
    Court for the District of Colorado is hereby affirmed.
    18