ENFORCING RIGHTS OF SPECIAL EDUCATION STUDENTS AND FAMILIES

As a private bar attorney with Children and Family Law Division of the Massachusetts Committee for Public Services, I get updates on recent cases and here is one (which I hope I am allowed to reprint) about a recent Supreme Court case which provides more remedies for families with disabled children who have been harmed by schools. 

Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023)

Michelle Scavongelli

Senior Counsel, The EdLaw Project

 

REQUIREMENT OF EXHAUSTION NO LONGER A BAR TO RECOVERY OF DAMAGES FOR SPECIAL EDUCATION STUDENTS AND THEIR FAMILIES Last week, the United States Supreme Court handed down a unanimous decision in Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023). The Court held that the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement does not apply to lawsuits seeking only money damages under the Americans with Disabilities Act (ADA).

The plaintiff, Miguel Luna Perez, had attended Sturgis Public Schools since he was nine years old. Mr. Perez is deaf. To accommodate his disability, the school was required to provide him with aides to translate classroom instruction into sign language. However, the aides assigned to Mr. Perez were either unqualified or largely absent from the classroom.

The district also inflated Mr. Perez’s grades, advancing him from grade to grade without regard to his progress. That led Mr. Perez and his parents to believe he was on track to graduate with his class. The school reached out just months before graduation to inform them that Mr. Perez would not be awarded a standard diploma.

Mr. Perez and his family filed a complaint with the Michigan Department of Education under the IDEA, claiming that the school district had failed to provide Mr. Perez a free and appropriate public education (FAPE). They settled with the school district before the case went to a hearing. According to the settlement, the school district agreed to provide Mr. Perez with relief available under the IDEA, including additional schooling at the Michigan School for the Deaf as well as additional compensatory education.

Mr. Perez then filed a lawsuit under the ADA seeking monetary relief for harms flowing from Sturgis’ failure to provide FAPE. The school district objected. It argued that the IDEA required Mr. Perez to “exhaust” the administrative procedures in the IDEA—that is, file a due-process complaint and litigate the case to a final administrative decision before he could file a lawsuit under the ADA.

The Court disagreed. It held that the exhaustion requirement only applies when a plaintiff asks for remedies that are also available under the IDEA, such as injunctive relief or compensatory education. Because the remedy that Mr. Perez is seeking—monetary damages—is not available under the IDEA, his lawsuit may proceed. He had already obtained the relief available under IDEA through the settlement of the IDEA claim.

The Court’s holding will allow students who have been denied FAPE to settle their IDEA claims and still receive the monetary damages to which they are entitled under ADA. School districts may respond by requiring a general release of all claims, including ADA claims, to settle an ADA claim.

Perez represents a significant departure from prior practice. In 2017, the Court held that the IDEA’s exhaustion rule applies when a plaintiff seeks relief for the denial of FAPE. Fry v. Napoleon, 580 U.S. __ (2017). The Court reasoned that providing FAPE is the IDEA’s “core guarantee,” and so claims seeking relief for denial of FAPE must be channeled through the statute’s administrative processes. The Court specifically reserved the question of whether damages only ADA claims could be brought without exhausting administrative remedies under IDEA.

The ruling in Perez clarifies that the exhaustion requirement does not apply when a plaintiff seeks only money damages under ADA even if the gravamen of the claim is related to FAPE. The Court’s decision in Perez ensures that students’ allegations of harm and requests for compensation will not be administratively barred.

 

CUSTODY ISSUES OF CHILDREN WITH SPECIAL NEEDS

Matter of Griffin v Danzy, 2018 NY Slip Op 02324 ,Decided on April 4, 2018, Appellate Division, Second Department:

"The parties, who were never married, have two children together, twins born in April 2012. The children, who were born prematurely, have several health issues, including chronic lung disease and asthma, and one child has a heart defect.

In July 2013, the father filed a petition for custody and visitation. Thereafter, temporary orders of visitation were issued, granting the father alternate weekend visitation with the children, initially supervised by the mother, and later with the assistance of the children's home health aide. After a hearing, the Family Court, inter alia, granted the father unsupervised, overnight visitation on alternate weekends, to commence gradually after the mother had provided the father with an updated list of the children's physicians and the father had contacted each physician regarding the children's diagnoses and medications. The mother appeals.

The court's paramount concern in adjudicating visitation rights is the best interests of the child (see Matter of Murphy v Lewis, 149 AD3d 748, 749; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d 868, 868; Matter of Morocho v Jordan, 123 AD3d 1037, 1037). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Cervera v Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Murphy v Lewis, 149 AD3d at 750; Matter of Lopez v Lopez, 127 AD3d 974, [*2]974; Matter of Blazek v Zavelo, 127 AD3d 854, 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). "Since custody and visitation determinations necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings'" (Matter of James M. v Kevin M., 99 AD3d 911, 913, quoting Matter of Elliott v Felder, 69 AD3d 623, 623). Thus, the determination of whether visitation should be supervised is a matter within the sound discretion of the Family Court and should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868; Matter of Dolan v Masterton, 121 AD3d 979, 981; Irizarry v Irizarry, 115 AD3d 913, 915; Matter of Brian M. v Nancy M., 227 AD2d 404, 404; Matter of Gerald D. v Lucille S., 188 AD2d 650, 650).

Here, the record does not support a conclusion that overnight, unsupervised visitation would be detrimental to the children. Further, the requirements imposed by the Family Court's order, including requiring the mother to provide contact information for all of the children's doctors, requiring the father to contact each doctor to obtain information about the children's diagnoses and medications, and introducing the overnight visitation gradually, while ensuring the assistance of the children's home health aide, are designed to protect the children while encouraging the bond between the children and the father (see Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). Accordingly, the court's visitation determination had a sound and substantial basis in the record, and will not be disturbed (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Dolan v Masterton, 121 AD3d at 981; Irizarry v Irizarry, 115 AD3d at 915; Matter of Gerald D. v Lucille S., 188 AD2d at 650).:

WHEN DIVORCED PARENTS DO NOT AGREE ON ADHD TREATMENT

A few years ago the New York Times reported that "the zeal to find and treat every A.D.H.D. child has led to too many people with scant symptoms receiving the diagnosis and medication. The disorder is now the second most frequent long-term diagnosis made in children, narrowly trailing asthma, according to a New York Times analysis of C.D.C. data." Certainly, the question of "to medicate or not" can be an issue with divorced parents. Such was the case in MATTER OF ANDREA C. v. David B., 2017 NY Slip Op 223 - NY: Appellate Div., 3rd Dept. 2017:

"Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a daughter (born in 2005). In June 2007, the parties stipulated to an order granting them joint legal custody of the child with primary physical placement to the mother and specified visitation to the father^[1]. Although the parties thereafter expanded the father's visitation schedule on their own accord and, together with the father's new wife, often shared family dinners together, a growing disagreement began brewing between the mother and the father with respect to, among other things, day care arrangements for the child, her participation in various summer or holiday camps and the individualized services that were provided to her^[2]. The parties' differences came to a head in 2013 when the mother had the child evaluated for attention deficit hyperactivity disorder (hereinafter ADHD) and a recommendation was made that the child receive a combination of medication and counseling; the mother "was very interested in doing a trial of medication" while the father "was totally against doing any medication."

Insofar as is relevant here, the mother commenced the first of these proceedings in September 2014 seeking sole custody of the child — citing, among other things, the father's lack of cooperation and interference with the child's service providers. The father cross-petitioned for sole custody — asserting, among other things, that the mother lacked the ability to effectively manage the child's behavioral issues and placed the child on ADHD medication without his consent — and also filed a violation petition alleging that the mother failed to adhere to the visitation schedule set forth in the June 2007 order. A lengthy fact-finding hearing ensued, during the course of which testimony was received from, among others, numerous service providers, counselors and school officials. Following a Lincoln hearing, Family Court issued a comprehensive and well-reasoned decision detailing, among other things, the parties' respective parental strengths and shortcomings, their level of acknowledgment of and philosophical differences regarding the appropriate treatment governing their daughter's disabilities, their respective abilities to engage and work in a cooperative fashion with the child's service providers, the quality of their respective home environments and their individual abilities to provide for their child's intellectual and emotional development. Upon due consideration thereof, Family Court awarded the mother sole legal and physical custody of the child with significant visitation to the father. This appeal by the father ensued.^[3]

Initially, the father does not dispute that the marked deterioration in the parties' relationship and their corresponding inability and/or unwillingness to work with one another in a cooperative fashion for the sake of their child constitutes a change in circumstances for purposes of satisfying the mother's initial burden on her modification petition (see Matter of Rockhill v Kunzman, 141 AD3d 783, 784 [2016]). For those same reasons, there also is no question that joint legal custody no longer is feasible (see Matter of Zahuranec v Zahuranec, 132 AD3d 1175, 1176 [2015]). Hence, Family Court was tasked with fashioning a custodial arrangement that would best serve the child's interests. Upon reviewing the record as a whole and giving due consideration to all of the relevant factors, including "each parent's ability to furnish and maintain a suitable and stable home environment for the child, past performance, relative fitness, ability to guide and provide for the child's overall well-being and willingness to foster a positive relationship between the child and the other parent" (Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Coleman v Millington, 140 AD3d 1245, 1247 [2016]), as well as the transcript of the Lincoln hearing (see Matter of Shokralla v Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family Court's decision to award sole legal and physical custody of the child to the mother and expansive visitation to the father is supported by a sound and substantial basis in the record.

Here, Family Court was faced with the difficult task of choosing between two loving but very different (and often obstinate) parents — each of whom possesses largely irreconcilable parenting philosophies (particularly with respect to their appreciation of and willingness to seek outside help with respect to their child's particular needs). According to the father, the mother lacks the intellectual capacity and coping skills to properly manage and resolve the child's behavioral issues, has effectively delegated her parental decision making to various third-party service providers and has demonstrated impaired parental judgment by excluding him from important decisions regarding the child's care and treatment. The mother, on the other hand, contends that the father refuses to accept the child's disabilities, does not support the recommended treatment for the child's diagnosed ADHD, is opposed to the child's enrollment in special education classes (preferring instead that she "act like a regular child") and has effectively abdicated his parental role by, among other things, failing to pursue needed services for the child — believing instead that he alone is capable of meeting her needs. Family Court, drawing upon its "superior vantage point of observing the demeanor of the witnesses who testified before it" (Matter of Ryan v Lewis, 135 AD3d 1135, 1137 [2016] [internal quotation marks and citation omitted]), largely credited the testimony of the mother — finding that the mother was "more aware of and involved with" the child's teachers and service providers, had made "thoughtful, rational[] decisions" with respect to the child's welfare and, on balance, was capable of providing "a greater continuity of care" for the child than the father (see Matter of Blagg v Downey, 132 AD3d 1078, 1080 [2015]). The court's findings in this regard are fully supported by the testimony of numerous service providers, who generally attested to the father's lack of involvement in, opposition to and/or disruptive behavior regarding their efforts to provide services to the child (see Matter of Virginia C. v Donald C., 114 AD3d 1032, 1034 [2014]). Although Family Court recognized the "important role" that the father played in the child's life, including providing necessary structure and discipline, it was, in the final analysis, the father's attitude, demeanor and parenting style that prompted Family Court to award sole legal and physical custody to the mother — taking care to ensure that the father had frequent and meaningful access to the child and, further, that he was kept apprised of the child's medical and service providers and received appropriate notices and updates from the child's school. Given that Family Court had the opportunity to observe the parties and their respective witnesses firsthand over the course of the lengthy fact-finding hearing, and inasmuch as the court's findings are supported by a sound and substantial basis in the record, we discern no basis upon which to disturb the custodial arrangement fashioned by Family Court. The father's remaining contentions are either unpreserved for our review or have been examined and found to be lacking in merit.


[1] The June 2007 order apparently was incorporated but not merged into the parties' 2009 judgment of divorce.
[2] The child, who has certain learning disabilities and developmental delays, began receiving early intervention services as an infant and, as of the time of the hearing, had an individualized education plan.
[3] During the pendency of this appeal, the parties filed competing modification petitions, in addition to certain enforcement and violation petitions. By order entered August 17, 2016, Family Court, among other things, dismissed the respective modification petitions, declining to alter the custodial arrangement set forth in its September 2015 order. Accordingly, this appeal is not moot."

SPECIAL NEEDS PLANNING

The Nassau County Bar Association is holding a free seminar " Your Child with Special Needs Planning for Adulthood Important Legal & Financial Considerations" on Thursday May 29 at  6:30pm.

Limited seating call; 516 747-4070