In re D.L. CA4/3 ( 2024 )

Filed 1/31/24 In re D.L. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re D.L., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G062708
Plaintiff and Respondent,
(Super. Ct. No. 15DP0058)
v.
OPINION
C.T.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Craig E.
Arthur, Judge. Affirmed.
C.T., in pro. per., for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
Mother appeals from an order of the juvenile court transferring educational
rights over minor to another person. Minor, who is currently in the 8th grade, and who
suffers from autism and attention deficit hyperactivity disorder, is severely behind his
grade level in learning. Everyone supporting minor—the social worker, his school, the
court appointed special advocate (CASA) representative, his counsel—all urged mother
to put minor on an independent educational program (IEP). His mother resisted, then
agreed, then failed to sign the necessary paperwork. After a six-month process of
reassurances from mother that she would do it, she eventually refused, and the court
granted Orange County Social Services Agency’s (SSA) motion to transfer educational
rights from mother to a CASA representative. Mother appealed.
Finding no abuse of discretion, we affirm. Mother’s arguments on appeal
are twofold. First, she contends there was false information associated with the IEP
application, but she never explains what that falsehood was, nor does she cite anything in
the record to support her claim. Second, she contends that minor’s 504 plan was an
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adequate substitute. However, as we explain in detail below, there is ample authority
and evidence to support the court’s contrary conclusion.
FACTS
Minor D.L. (and four siblings) were initially detained in 2015 as a result of
physical abuse by mother—she struck her children with a computer cord. We chronicled
the first two years of this case in a prior opinion. (In re C.W., et al. (July 30, 2018,
G055742) [nonpub. opn.].) We will not repeat that narrative here. In short, mother did
not reunify, but the children were deemed not suitable for adoption and long-term foster
care was adopted as the permanent plan. Of relevance to this appeal, in April 2016 it was
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A 504 plan outlines the specific accommodations and support services that
a student needs to ensure equal access to education. (See 29 U.S.C. § 794.)
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noted that “mother refused to approve a special educational assessment for [minor’s
sibling] and [minor], despite the boys exhibiting aggressive and disruptive behavior in
placement and at school.” (Ibid.) This refusal continued through August 2016, despite
that “[a]ll three [siblings] continued to struggle academically and exhibited negative
behaviors.” (Ibid.) “Mother ultimately consented to educational assessments after the
children’s lawyer filed a petition to terminate mother as the children’s educational rights
holder.” (Ibid.) We affirmed the court’s finding that mother posed a substantial risk of
detriment to her children’s physical and emotional well-being if the juvenile court
returned them to her care. (Ibid.)
Afterward, the court continued holding postpermanency review hearings.
At one such hearing in January 2022, mother requested that the children be returned to
her, which the court denied. Mother appealed, and in a prior opinion, we affirmed that
order as well. (In re N.T. (Aug. 2, 2022, G061016) [nonpub. opn.].) Again, we will not
rehash all of the facts relevant to that opinion. However, the 2022 opinion made the
following observations, which are relevant to this appeal: “D.L. frequently refused to go
to school, where he was in the eighth grade, and he struggled when he did go. Mother,
who held education rights, was resistant to D.L. obtaining extra support at school to
address his Autism and Attention Deficit Disorder. [SSA] recommended she request a
student success team meeting and/or an individualized education program evaluation for
D.L., but she refused because an evaluation had already been completed for D.L. His last
educational assessment was conducted in May 2020, and he was assessed at a third grade
level.”
Shifting now to the record in this appeal, according to a report by minor’s
CASA representative, minor did very poorly in 8th grade, finishing with a 1.05 grade
point average. According to the CASA representative, Minor “has had an educational
assessment in the past, but his mother did not want to utilize those services.” Minor’s
“previous social worker has requested multiple times for another educational assessment
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from the current education rights holder (Mother) but she has refused.” As a result, the
CASA representative recommended “that the court limit the educational rights of
[minor’s] mother.” The CASA representative requested that he be vested with minor’s
educational rights. Around the same time, the assigned social worker submitted a status
review report stating, “The child’s [Short Term Residential Treatment Program] team
does believe that the child would benefit from an assessment. However, the mother
continues to refuse to request the school to conduct a Student Success Team
Meeting/IEP.”
In response, in September 2022, mother filed an “Ex Parte Request to Deny
Change [in] Educational Rights.” At the hearing on September 7, 2022, SSA presented
an ex parte request to limit mother’s educational rights. The hearing was continued.
Meanwhile, in October 2022, a student success team meeting was held, and
mother agreed to have minor assessed for an IEP. At a progress review hearing, the court
noted, “The school district is waiting for signed documents from Mom and a psych eval
the social worker is working on getting to them so that they can proceed.” In light of
mother’s changed point of view, the court denied the request to transfer educational rights
without prejudice.
However, by April of 2023, mother had not signed the necessary
documents for the IEP to move forward. The court directed mother to sign the paperwork
by April 19, or else it “would entertain a motion to reassign educational rights in order to
make that happen.”
In anticipation of a May 2023 status conference, the CASA representative
filed a new report once again requesting that he be vested with minor’s educational
rights. The representative noted that an IEP assessment had been performed in February
2023, but mother still had not signed the necessary paperwork. Meanwhile, minor was
failing almost all of his ninth-grade classes.
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Around the same time, SSA filed an ex parte application to transfer minor’s
educational rights to the CASA representative. The reason for the application was that
“the youth’s IEP assessment and educational plan documents have not been signed by the
mother despite several request[s] from school, Court, and [SSA] for the mother to sign
the documents. The mother has continually stated she will sign the documents since the
assessment was completed on February 15, 2023, but as of the writing of this report has
failed to do so. As a last resort, Orange Unified School District Student and Community
Services Coordinator . . . confirmed that a formal letter was sent via email and certified
mail to mother on May 4, 2023, but no response has been received. This information has
been confirmed by [the] Foster Youth Educational Liaison, . . . and Orange High School
Staff.”
At a hearing in June 2023, which mother failed to attend, the court granted
the request to transfer minor’s educational rights to the CASA representative. A
representative of the school district noted that mother had changed her mind and would
no longer accept the education services and supports that were being offered through an
IEP. Mother appealed.
DISCUSSION
According to mother, her “main contention is that misconstrued/fraudulent
information was submitted to the trial court to deprive [her] of a fundamental right under
the U.S. Constitution.” However, she has not told us what that fraudulent information
was, and, more critically, she has not cited to anything in the record to support her
contention. As we explained to mother in our previous 2022 opinion, to demonstrate
error in the trial court, the appellant must cite to facts in the record to support her
contentions. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) In our own review of the
record, we have found nothing to support mother’s claim. Accordingly, we must reject it.
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Mother’s other claim is that she “endorsed a 504 plan for [minor] that
specifically allowed him more times for testing, learning supports, etc . . . .” She seems
to be arguing that the 504 plan was an adequate substitute for an IEP.
We review a court’s decision to transfer educational rights for abuse of
discretion. (In re R.W. (2009) 172 Cal.App.4th 1268, 1277.) That means we only reverse
if the judge’s decision was patently unreasonable.
An IEP and a 504 plan, though similar in some ways, are focused on
different problems.
A 504 Plan is based on section 504 of the Rehabilitation Act of 1973
(29 U.S.C. § 794), which prohibits discrimination in the implementation of programs that
receive federal funding. “[C]ourts have interpreted § 504 as demanding certain
‘reasonable’ modifications to existing practices in order to ‘accommodate’ persons with
disabilities.” (Fry v. Napoleon Community Schools (2017) 580 U.S. 154, 160.) “Section
504’s regulations gauge the adequacy of services provided to individuals with disabilities
by comparing them to the level of services provided to individuals who are not disabled.”
(McIntyre v. Eugene School Dist. 4J (9th Cir. 2020) 976 F.3d 902, 911.)
An IEP is prescribed by the Individuals with Disabilities Education Act
(20 U.S.C. § 1400 et seq.; IDEA), which guarantees disabled children a free appropriate
education, commonly referred to as a FAPE. This requires schools to provide special
education that is specifically tailored to the unique needs of the disabled child. (McIntyre
v. Eugene School Dist. 4J, supra, 976 F3d at p. 910.) “The IDEA ensures that students
receive a FAPE through the development of an [IEP], ‘the centerpiece of the statute’s
education delivery system for disabled children.’ [Citation.] An IEP is a comprehensive
plan collaboratively prepared by a child’s ‘IEP Team’ (which includes teachers, school
officials, and the child’s parents), and must be drafted in compliance with a detailed set
of procedures. [Citation.] Among other requirements, the IEP must describe the ‘special
education and related services . . . that will be provided’ so that the child may ‘advance
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appropriately toward attaining the annual goals’ and, when possible, ‘be involved in and
make progress in the general education curriculum.’ [Citation.] FAPE is a substantive
requirement—an IEP must ultimately be ‘reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.’” (Ibid.) Because of the
specifically tailored nature of the IEP, “courts have recognized that a section 504 plan
typically is not an adequate substitute for an IEP.” (Regional School Unit 51 v. Doe
(D.Me. 2013) 920 F.Supp.2d 168, 204.)
Here, there was a reasonable basis in the record that supported the court’s
decision that an IEP is in minor’s best interest. The court heard from a representative of
the Orange County Department of Education, who explained that “[t]he concern with
[relying on a 504 plan] is that the 504 plan falls within the general education,
accommodations that are provided to all youth just generally for . . . youth in education.
[¶] The IEP . . . is more individualized, specialized supports that will address [minor’s]
specific needs and his disabilities to help him access his education. And it would provide
very specific services specialized for him specifically.” “[I]n not accepting the IEP, the
concern is that he will continue to struggle academically and not receive the appropriate
services that he should be receiving . . . through his educational plan as proposed by the
District.” Because there was a reasonable basis in the record to support the court’s
ruling, there was no abuse of discretion.
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DISPOSITION
The order transferring minor’s educational rights is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
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