Truancy and late to an execution or an education.....

........which one came first?

could he help his defense? EZ fall guy eh? I mean you would think an alleged "educational expert" would be on hand to speak up.

Yeah right!!!!!!!

What??????? why now?

Life was too long to wait to find out that in 1984 was the last year of innocence in public schools.......

or was it ever? Depends................If i skipped and had the balls to show up at the following class, you were called into the office.

Nowadays, at CCISD at least, no one cares, no one administrator gives a rats ass.

http://stxwatchdog.blogspot.com/

If 'A' has a positive right against 'B', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance.

This is the tragic outcome, parents unable to fight the "delphi technique"

Heaven forbid the truth of Debbie Riddles of the world come out of their "Educated" tiny brain and learn.

What did she was taxpayers state funded "public education":::Significant legislation

In the Eightieth Texas Legislature, Representative Riddle authored House Bill 8, which was the Texas version of Jessica's Law. The bill was signed into law by Governor Rick Perry on June 15, 2007 and will become effective on September 1, 2007.

In the same session, she also authored House Bill 1034, which added the words "one state under God," to the Texas State Pledge. [1]

[edit] Pit of hell speech

In a March 6, 2003 interview with the El Paso Times, Riddle was quoted as saying:

"Where did this idea come from that everybody deserves free education, free medical care, free whatever? It comes from Moscow, from Russia. It comes straight out of the pit of hell. And it's cleverly disguised as having a tender heart. It's not a tender heart. It's ripping the heart out of this country." [1]

The quote came after a Border and International Affairs Committee meeting during the Seventy-eighth Texas Legislature, in which the state faced a budget deficit of $10 billion, [1] and was linked to a discussion Riddle had during the hearing regarding proposed health care cuts. The witness claimed that health care cuts would cause serious damage to border area hospitals, which Riddled countered with the claim that illegal immigrants were responsible for the financial strains. [1]

Riddle was further quoted as saying "In a perfect world, I think it would be wonderful to open our doors to any and all, young and old, for health care. But this isn't a perfect world. We have got to decide if we are going to just open our borders for any and all that come through for health care, education, and services." [1]

The comment was met almost instantly with both opposition and support from both ends of the political spectrum.

Texas Democrats claimed the statement was bigoted and "the product of an antipathy toward non-Anglo inhabitants of the state" and the Harris County Democratic Party called for her to resign from her position on the Border Affairs Committee[2]. The Mexican American Legislative Caucus was also quick to reprimand Riddle for her comments, informing her in a letter that "Our constitutional mandate comes not from the pit of hell. It comes from our state's forefathers." [3]

At the same time, the Unidas Hispanic Women's Club and the Republican National Hispanic Assembly of Harris County praised Riddle for the quote and honored her at a dinner at the conclusion of session. Reggie Gonzalez, chairman for the Republican Hispanic Outreach Committee of Harris County said in a press release: "The liberal opposition to Representative Riddle's comments offends me as a Hispanic citizen. Their opposition only strengthens this negative stereotype of Hispanic immigrants, by implying that they need a lower standard of accountability. This implication is detrimental to the cause of Mexican-Americans everywhere." [4]

Let us not forget::::::

"pit of hell" and prove the Scott Brister definition of "the ring of hell"

....The court of appeals (one justice dissenting) affirmed the summary judgment as to pre-termination conduct, holding Jackson’s affidavits described an “unpleasant and uncomfortable” workplace but not “the ring of hell” required to establish an intentional infliction claim.[5] But the court reversed and remanded for trial her infliction claim based on post-termination conduct.[6] Applying the usual standard of review,[7] we reverse for two of the reasons stated in the defendants’ motion.[8]

http://www.supreme.courts.state.tx.us/Historical/2005/feb/021076.htm

Why are schools not provides specifically that truancy is conduct indicating a need for supervision, but at school there is no supervision. Why not?

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Error to adjudicate child delinquent for truancy

On October 20, 1999, the Dallas Court of Appeal reversed an adjudication for delinquent conduct when the judgment recited that it was based on conduct constituting truancy. Truancy is CINS, not delinquent conduct.

99-4-18. In the Matter of A.S., UNPUBLISHED, No. 05-98-02086, 1999 WL 956308, 1999 Tex.App.Lexis ___ (Tex.App.--Dallas 10/20/99)[Texas Juvenile Law 49 (4th Ed. 1996)].

Facts: The juvenile court adjudicated A.S. a child engaged in delinquent [sic] on a finding of truancy and committed him to the Texas Youth Commission (TYC). In two points of error, A.S. contends the juvenile court erred in its adjudication, in failing to state specific reasons for disposition, and that the evidence is insufficient to support the disposition. We sustain A.S.'s first point of error and reverse and render judgment.



A petition alleged appellant engaged in delinquent conduct by violating a lawful justice court order "under circumstances that would constitute contempt" by failing to "attend school each and every day with no unexcused absences ... in violation of Section 51.03 of the Texas Family Code." The juvenile court informed A.S. that, if the petition was found to be true, the court could place A.S. on probation at home in the custody of a parent or outside the home until his eighteenth birthday or A.S. could be committed to TYC until his twenty-first birthday. A.S. pleaded true, and the court found him to be a child engaged in delinquent conduct. In its adjudication findings, the juvenile court found A.S. committed the offense of "failing to attend school each and every school day with no unexcused absences and by failing to attend each and every class of each day of school[ ] on 12-1-97" and declared A.S. a child engaged in delinquent conduct, as defined by section 51.03 of the family code. After hearing evidence regarding disposition at the initial and subsequent hearings, the juvenile court committed A.S. to TYC.



The juvenile court entered the following findings for purposes of disposition:



1. The child is in need of rehabilitation;

2. The public is in need of protection;

3. The respondent child's best interest will be served by being placed outside the home[;]

4. All reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the home[;]

5. The child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.



The juvenile court then committed A.S. to TYC "for the reasons stated above."



Held: Reversed and rendered.



Opinion Text: In his first point of error, A.S. contends the trial court erred in adjudicating him a child engaged in delinquent conduct. We view the evidence as a whole to determine whether the State met its burden of proof beyond a reasonable doubt. See Tex. Fam.Code Ann. § 54.03(f) (Vernon 1996); C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App.-Dallas 1993, no writ); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.-Houston [1 st Dist.] 1991, no writ).



Failure to attend school is a misdemeanor offense under the education code and may be prosecuted in a justice court. See Tex. Educ.Code Ann. § 25.094(b) & (f) (Vernon 1996 & Supp.1999). If the justice court finds a juvenile "has engaged in truant conduct and that the conduct is of a recurrent nature," the court may order the juvenile to "attend school without unexcused absences." Tex. Fam.Code Ann. § 54.021(d)(6) (Vernon Supp.1999). If the justice court finds a juvenile has violated its order, the court shall transfer the complaint to the juvenile court which shall conduct a de novo adjudication hearing under section 54.03 of the family code. See Tex. Educ.Code Ann. § 25.094(d) (Vernon 1996). Under section 54.03 of the family code, a juvenile court may find that a juvenile has engaged in delinquent conduct or conduct indicating a need for supervision. See Tex. Fam.Code Ann. § 54.03 (Vernon 1996). The code also provides specifically that truancy is conduct indicating a need for supervision, not delinquent conduct. See id. § 51.03(a)(2)(B) & (b)(2) (Vernon Supp.1999); In the Matter of J.B.S., 696 S.W.2d 223, 225 (Tex.App.-San Antonio 1985, no writ); In the Matter of A.L.H., 517 S.W.2d 652, 653 (Tex.Civ.App.-Houston [1 st Dist.] 1974, no writ). A juvenile adjudicated a truant under section 51.03 of the family code may not be committed to TYC. See Tex. Fam.Code Ann. § 51.02(15)(A) (Vernon Supp.1999), § 54.04(o) (Vernon 1996) (providing that a child who commits truancy under section 51.03(b)(2), which is conduct that cannot be committed by an adult, may not be committed to TYC).



The juvenile court found A.S. committed the offense of failing to attend school with no unexcused absences, that is, truancy, which is not delinquent conduct under section 51.03 of the family code. Thus, there is no evidence to support an adjudication that A.S. is a child engaged in delinquent conduct. The State argues the court's error is a clerical rather than a legal error because the record demonstrates that A.S. pleaded to a charge of contempt that would support the adjudication. The State proposes that we may either correct the error in the factual finding or remand to the trial court for correction by a nunc pro tunc judgment. See, e.g., State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994) (noting "nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time"); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (noting "[a]ppellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record"); Tex.R.App. P. 43.2(b). However, the written judgment's finding that A.S. "failed to attend school" is consistent with the record of the plea. Furthermore, at a later disposition hearing, the court stated, "Back on September 22 nd, 1998, [A.S.] plead (sic) true to a count of truancy...." This finding of truancy was a judicial determination. Thus, we conclude the juvenile court's holding that A.S. engaged in delinquent conduct was error. We sustain A.S.'s first point of error. Our disposition of the first point of error makes it unnecessary for us to address A.S.'s second point of error. See Tex.R.App. P. 47.1.



We reverse the juvenile court's "Order of Adjudication and Judgment of Disposition with T.Y.C. Commitment" in all respects and render judgment that A.S. is not a child engaged in delinquent conduct.



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Last modified: September 07, 2007 01:51 PM

Corpus Christi 's students would do well (need)to learn and know this information..........

TEXAS JUVENILE LAW

In Texas, juveniles are defined as minors, older than 10 years of age and under the age of 17. Juveniles are treated differently than adult offenders and the general goal of the juvenile system is rehabilitation as opposed to punishment. However, the penalties in the juvenile system can still be severe. Some offenses, such as truancy and breaking curfew, are unique to juveniles, and would not be illegal if the accused were an adult. The juvenile justice system generally moves much more quickly than does the adult criminal justice system. Don't wait to hire a good juvenile defense lawyer to represent your child. Call Attorney David Finn at: 214-651-1121.

There are separate courts and rules that govern the juvenile process. The juvenile court system will generally make every effort to rehabilitate the child rather than simply incarcerate him. Only in extreme cases, such as serious felonies, usually involving allegations of violence or the use of a deadly weapon, will a juvenile be tried as an adult. The juvenile courts may hold a hearing to determine whether to transfer the juvenile to the adult court system. This is called a "transfer hearing." The court will base its decision to transfer on the following factors:

1. The seriousness of the offense
2. The child's criminal sophistication
3. Previous criminal record
4. Previous attempts to rehabilitate the juvenile offender
5. The court's belief that future attempts at rehabilitation will be unsuccessful

While many of the laws governing juveniles may differ from the adult system, the rights that juveniles enjoy are virtually identical to those enjoyed by adults.

1. A juvenile must be read his Miranda rights if placed under arrest.
2. A juvenile has the right to have an attorney present during interrogation.
3. A juvenile has the right to know the specific charges being brought by the State.
4. A juvenile has rights against self-incrimination.
5. A juvenile has the right to confront his accuser and examine witnesses.
6. A juvenile has the right to appeal the court's decision.
7. A juvenile does have the right to a jury trial during the adjudication phase

If a juvenile finds herself in a situation involving the police or other law enforcement, please remember the following information:

1. You do not have to submit to a search unless you have been placed under arrest.

If you are asked to give permission to search you should politely but firmly decline. If the police say they have a search warrant, ask to see it.

2. Do not resist arrest.
3. Do not volunteer information or answer questions without your attorney present.
4. Provide only your name, address, and phone number.
5. Call your parents as soon as possible.
6. Insist that your parents and an attorney be present during questioning.
7. Do not discuss your case with anyone other than your attorney.

Do not discuss your case with your friends or classmates.

Finally, do not attempt to represent yourself in court. Hire an experienced criminal defense attorney, preferably one who is board-certified in criminal law.

Texas Juvenile Justice: Overview

Taking Into Custody; Issuance of Warning Notice: Texas Family Code Section 52.01

A child may be taken into custody: pursuant to an order of the juvenile court; pursuant to the Texas laws for arrest; by a law enforcement officer if there is probable cause to believe that the child has engaged in conduct that violates the penal laws of Texas or any political subdivision or delinquent conduct or conduct indicating a need for supervision. It is the duty of the law enforcement officer who has taken a child into custody to transport the child to the appropriate detention facility if the child is not released to the parent, guardian, or custodian of the child. If the juvenile detention facility is located outside the county in which the child is taken into custody, it shall be the duty of the law enforcement officer who has taken the child into custody or, if authorized by the commissioners court of the county, the sheriff of that county, to transport the child to the appropriate juvenile detention facility unless the child is released to the parent, guardian, or custodian of the child.

Delinquent Conduct: Conduct Indicating a Need for Supervision:

Texas Family Code Section 51.03

(a) Delinquent conduct is defined as:

1. conduct, other than a traffic offense, that violates a penal law of Texas or of the United States punishable by imprisonment or by confinement in jail;
2. conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court;
3. conduct that constitutes: Driving While Intoxicated (DWI), Flying While Intoxicated, Boating While Intoxicated, Intoxication Assault, Intoxication Manslaughter, and Driving Under the Influence of Alcohol by a minor (DUI).

(b) Conduct indicating a need for supervision includes:

1. conduct, other than a traffic offense, that violates the penal laws of Texas of the grade of misdemeanor that are punishable by a fine only (class c-misdemeanors); the penal ordinances of any political subdivision of Texas; the absence of a child on 10 or more days or parts of days within a 6 month period in the same school year or on 3 or more days or parts of days within a 4 week period from school; the voluntary absence of a child from the child's home without the consent of the child's parents or guardian for a substantial length of time or without intent to return; conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint; or an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Texas Education Code.

Release from Detention: Texas Family Code Section 53.02

(a) If a child is brought before the court or delivered to a detention facility, the intake or other authorized officer of the court shall immediately make an investigation and shall release the child unless it appears that his detention is warranted under subsection (b), below.

The release may be conditioned upon requirements reasonably necessary to insure the child's appearance at later proceedings, but the conditions of the release must be in writing and filed with the office or official designated by the court and a copy furnished to the child.

(b) A child taken into custody may be detained prior to hearing on the petition only if:

1. the child is likely to abscond or be removed from the court's jurisdiction;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return the child to the court when required;
4. the child may be dangerous to himself or herself or the child may threaten the safety of the public if released;
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released; or
6. the child's detention is required under subsection (f), below.

(c) If the child is not released, a request for detention hearing shall be made and promptly presented to the court, and an informal detention hearing shall be held promptly, but not later than the second working day after the child is taken into custody. If the child is taken into custody on a Friday or Saturday, then the detention hearing shall be held on the first working day after the child is taken into custody.

(d) A release of a child to an adult must be conditioned on the agreement of the adult to be subject to the jurisdiction of the juvenile court and to an order of contempt by the court if the adult, after notification, is unable to produce the child at later proceedings.

(e) If a child being released under this section is expelled from school in a county with a population greater than 125,000, the release shall be conditioned on the child's attending a juvenile justice alternative education program pending a deferred prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm in the commission of the offense shall be detained until the child is released at the direction of the judge of the juvenile court, a substitute judge, or a referee appointed, including an oral direction by telephone, or until a detention hearing is held.

Detention Hearing: Texas Family Code Section 54.01

(a) Generally speaking, a detention hearing without a jury shall be held promptly, but not later than the second working day after the child is taken into custody; provided, however, that when a child is detained on a Friday or Saturday, then such detention hearing shall be held on the first working day after the child is taken into custody.

(b) Reasonable notice of the detention hearing, either oral or written, shall be given, stating the time, place, and purpose of the hearing. Notice shall be given to the child and, if they can be found, to his parents, guardian, or custodian. Prior to the beginning of the hearing, the court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain silent with respect to any allegations of delinquent conduct or conduct indicating a need for supervision.

(c) At the detention hearing, the court may consider written reports from probation officers, professional court employees, or by professional consultants in addition to the testimony of witnesses. Prior to the detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision. The court may order counsel not to reveal items to the child or his parents if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.

(d) A detention hearing may be held without the presence of the child's parents if the court has been unable to locate them. If no parent or guardian is present, the court shall appoint counsel or a guardian ad litem for the child.

(e) At the conclusion of the hearing the court shall order the child released from detention unless it appears that he is likely to abscond, suitable supervision is not being provided to the child, he has no parent or guardian able to return the child to court when required, he may be dangerous to himself or others, or he has previously been found to be a delinquent child or has been previously convicted of a penal offense higher than a Class C misdemeanor and is likely to commit an offense if released. If the judge concludes that the child should be detained, the detention order extends for no more than 10 working days. Further detention orders may be made following subsequent detention hearings. The initial detention hearing may not be waived, but subsequent detention hearing may be waived.

Note: No statement made by the child at the detention hearing shall be admissible against the child at any other hearing.

Preliminary Investigation & Determinations; Notice to Parents:

Texas Family Code Section 53.01

On referral of a child, the intake officer, probation officer, or other person authorized by the court shall conduct a preliminary investigation to determine whether the person referred is a child and whether there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released. The child's parents are to promptly receive notice of the whereabouts of the child and also a statement explaining why the child was taken into custody. If the child is alleged to have engaged in delinquent conduct of the grade of felony, or conduct constituting a misdemeanor offense involving violence to a person or the use or possession of a firearm, illegal knife, or club, then the case is immediately forwarded to the office of the prosecuting attorney.

Summons: Texas Family Code Section 53.06

The juvenile court shall direct issuance of a summons to the child named in the petition, the child's parents, guardian, or custodian, the child's guardian ad litem, and any other person who appears to the court to be a proper or necessary party to the proceeding. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

Service of Summons: Texas Family Code Section 53.07

If a person to be served with a summons is in Texas and can be found, the summons shall be served upon him personally at least 2 days before the adjudication hearing. If he is in Texas but cannot be found, but his address is known or can be ascertained, the summons may be served on him by mailing a copy by registered or certified mail, return receipt requested, at least 5 days before the day of the hearing. If he is outside Texas but can be found or his address is known, service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered mail, return receipt requested, at least 5 days before the day of the adjudication hearing.

Attendance at Hearing: Parent or Other Guardian: Texas Family Code Section 51.115

Parents or guardians of a child are required by law to attend each court hearing affecting a child held under: possible transfer to criminal district/adult court; adjudication hearing; disposition hearing; hearing to modify disposition; release or transfer hearing. If a parent or guardian receives notice of any of these proceedings and is a resident of Texas, failure to appear could result in a fine for contempt of court.

Photographs & Fingerprints of Children: Texas Family Code Sections 58.002-0021

With limited exceptions, a child may not be photographed or fingerprinted without the consent of the juvenile court unless the child is taken into custody or referred to the juvenile court for conduct that constitutes a felony or a misdemeanor punishable by confinement in jail (which means a Class A or Class B misdemeanor). However, this prohibition does not prohibit law enforcement from photographing or fingerprinting a child who is not in custody if the child's parent or guardian voluntarily consents in writing. Furthermore, this prohibition does not apply to fingerprints that are required or authorized to be submitted or obtained for an application for a driver's license or personal identification card.

Note/Exception to General Rule stated above: Law enforcement may take temporary custody of a child to take the child's fingerprints if the officer: has probable cause to believe that the child has engaged in delinquent conduct; the officer has investigated that conduct and found other fingerprints during the investigation; and the officer has probable cause to believe that the child's fingerprints will match the other fingerprints. Law enforcement may take temporary custody of a child to take the child's photograph if the officer: has probable cause to believe that the child has engaged in delinquent conduct; and the officer has probable cause to believe that the child's photograph will be of material assistance in the investigation of the conduct. However, in either instance, unless the child then placed under arrest, the child must be released from temporary custody as soon as the fingerprints or photographs are obtained.

Waiver of Rights: Texas Family Code Section 51.09

Unless a contrary intent clearly appears elsewhere in the Family Code, any right granted to a child by this Section or by the constitution or laws of Texas or the United States may be waived in proceedings under this section if:

1. the waiver is made by the child and the attorney for the child;
2. the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
3. the waiver is voluntary; and
4. the waiver is made in writing or in court proceedings that are recorded.

Polygraph Examination: Texas Family Code Section 51.151

If a child is taken into custody pursuant to an order of the juvenile court or pursuant to the laws of arrest by a law enforcement officer, a person may not administer a polygraph examination to the child without the consent of the child's attorney or the juvenile court unless the child is transferred to a criminal district court for prosecution in the adult system. Bottom line: Do not consent to a polygraph examination without consulting with your lawyer.

Physical or Mental Examination: Texas Family Code Section 51.20

(a) At any stage of the proceedings the juvenile court may order a child who is referred to the juvenile court or who is alleged by a petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision to be examined by the local mental health or mental retardation authority or another appropriate expert, including a physician, psychiatrist, or psychologist.

(b) If, after conducting an examination of a child and reviewing any other relevant information, there is reason to believe that the child has a mental illness or mental retardation, the probation department shall refer the child to the local mental health or mental retardation authority for evaluation and services, unless the prosecutor has filed a court petition against the child alleging delinquent conduct or conduct indicating a need for supervision.

Election Between Juvenile Court & Alternate Juvenile Court:

Texas Family Code Section 51.18

(a) This section applies only to a child who has a right to a trial before a juvenile court the judge of which is not an attorney licensed to practice in Texas.

(b) On any matter that may lead to an order appealable under Section 56.01 of the Family Code, a child may be tried before either the juvenile court or the alternate juvenile court.

(c) The child may elect to be tried before the alternate juvenile court only if the child files a written notice with that court not later than 10 days before the date of the trial. After the notice is filed, the child may be tried only in the alternate juvenile court. If the child does not file a notice as provided by this section, the child may be tried only in the juvenile court.

(d) If the child is tried before the juvenile court, the child is not entitled to a trial de novo before the alternate juvenile court.

Transfer/Waiver: Texas Family Code Section 54.02

The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate criminal district court to be tried as an adult if the child is alleged to have violated a penal law of the grade of felony if the child was 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree; or 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony.

The juvenile court judge is not required to certify a child to stand trial as an adult. It's a judgment call. The juvenile court judge will investigate the matter and hold a hearing on the transfer request. The judge orders a complete diagnostic study, social evaluation, and a full investigation of the child, his circumstances, and the circumstances of the alleged offense. At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. In making her decision whether to transfer the case to the adult court, the judge considers: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against a person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use or procedures, services, and facilities currently available to the juvenile court.

Determinate Sentencing: Texas Family Code Section 53.045

If a child is accused of a very serious criminal violation, or habitual felony conduct (see section below), the prosecutor can pursue what is called determinate sentencing. In order to pursue determinate sentencing the prosecutor files a petition with the grand jury, basically asking the grand jury to grant the prosecutor's request to pursue determinate sentencing if the child is convicted. If 9 members of the grand jury approve the petition, then determinate sentencing becomes a viable sentencing option for the judge/jury if the child is convicted of the offense. Determinate sentencing doesn't mean that the child will be tried as an adult in a criminal district court. The case remains in the juvenile court even if the grand jury grants the request for determinate sentencing. but the stakes for the child are raised dramatically if the grand jury grants the prosecutor's petition for determinate sentencing.

Eligibility: The prosecutor can pursue determinate sentencing if the child is charged with habitual felony conduct, or if the child is charged with any of the following offenses:

capital murder, murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, aggravated robbery, injury to a child, elderly, or disabled individual if punishable as a felony other than a state jail felony, felony deadly conduct involving the discharge of a firearm, aggravated controlled substance felony, criminal solicitation of a minor, indecency with a child, arson, if bodily injury or death is suffered by any person by reason of the commission of the arson, intoxication manslaughter, or attempted murder or attempted capital murder. If your child is charged with one of the offenses listed above, she is eligible for determinate sentencing even if this is her first offense.

Impact: If the grand jury grants the prosecutor's request to impose determinate sentencing, and the child is convicted of habitual felony conduct or any of the offenses listed above, then the court or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to the institutional division of the Texas Department of Criminal Justice (adult prison system) for a term of: up to 40 years if the conduct constitutes a capital felony, first-degree felony, or an aggravated controlled substance felony; up to 20 years if the conduct constitutes a second-degree felony; and up to 10 years if the conduct constitutes a third-degree felony. So instead of being sent to the Texas Youth Commission until the child turns 18, determinate sentencing would allow the child to be sentenced to up to 40 years in the adult prison system by a judge or jury.

Habitual Felony Conduct: Texas Family Code Section 51.031

(a) Habitual felony conduct is conduct violating a penal law of the grade of felony, other than a state jail felony, if:

1. the child who engaged in the conduct has at least 2 previous final adjudications as having engaged in delinquent conduct violating a penal law of the grade of felony; and,
2. the second previous final adjudication is for conduct that occurred after the date the first previous adjudication became final; and,
3. all appeals relating to the previous adjudications have been exhausted.

Review by Prosecutor: Texas Family Code Section 53.012

The prosecuting attorney shall promptly review the circumstances and allegations of a referral made to her for legal sufficiency and the desirability of prosecution and may file a petition without regard to whether probable cause was found during the court's preliminary investigation.

If the prosecutor does not file a petition requesting the adjudication of the child referred to the prosecutor, the prosecutor must terminate all proceedings, if the reason is for the lack of probable cause; or return the referral to the juvenile probation department for further proceedings.

The prosecutors have considerable discretion and control over your child's case.

Deferred Prosecution: Texas Family Code Section 53.03

(a) Subject to subsections (e) and (g) below, if the preliminary investigation results in a determination that further proceedings in the case are authorized, the probation officer or other designated officer of the court, subject to the direction of the juvenile court, may advise the parties for a reasonable period of time not to exceed 6 months concerning deferred prosecution and rehabilitation of a child if:

1. deferred prosecution would be in the best interest of the public and child;
2. the child and her parent, guardian, or custodian consent with knowledge that consent is not obligatory; and
3. the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

(b) Except as otherwise permitted, the child may not be detained during or as a result of the deferred prosecution process.

(c) An incriminating statement made by a participant to the person giving advice and in the discussion or conferences incident thereto may not be used against the declarant in any court hearing.

(d) The court may adopt a fee schedule for deferred prosecution services. The maximum fee is $15 per month.

(e) The prosecuting attorney may defer prosecution for any child. A probation officer or other designated officer of the court may defer prosecution for a child who has previously been adjudicated for conduct that constitutes a felony only if the prosecuting attorney consents in writing.

(f) The probation officer or other officer supervising a program of deferred prosecution for a child shall report to the juvenile court any violation by the child of the program.

(g) Prosecution may not be deferred for a child alleged to have engaged in conduct that constitutes: driving/flying/boating while intoxicated, intoxication assault, intoxication manslaughter, or that constitutes a third or subsequent offense of consumption of alcohol by a minor or driving under the influence of alcohol (DUI) of a minor.

First Offender Program: Texas Family Code Section 52.031

A juvenile board may establish a first offender program for the referral and disposition of children taken into custody for: (1) conduct indicating a need for supervision; or (2) delinquent conduct other than conduct that constitutes a felony of the first, second, or third degree, an aggravated controlled substance felony, or a capital felony; or a state jail felony or misdemeanor involving violence to a person or the use or possession of a firearm, illegal knife, or club, or a prohibited weapon, as described by Section 46.05, Texas Penal Code. If the child has previously been adjudicated as having engaged in delinquent conduct he may be ineligible for the First Offender Program. Also, the child's parents or guardian must receive notice that the child has been referred for disposition under the First Offender Program.

Teen Court Program: Texas Family Code Section 54.032

A juvenile court may defer adjudication proceedings during an adjudication hearing for not more than 180 days if the child:

(1) is alleged to have engaged in conduct indicating a need for supervision that violated a penal law of Texas of the grade of misdemeanor that is punishable by a fine only or a penal ordinance of a political subdivision of Texas;

(2) waives the privilege against self-incrimination and testifies under oath that the allegations are true;

(3) presents to the court an oral or written request to attend a teen court program; and

(4) has not successfully completed a teen court program for the violation of the same penal law or ordinance in the two years preceding the date that the alleged conduct occurred.

Note: The teen court program must be approved by the court.

Adjudication Hearing: Texas Family Code Section 54.03

This is what is commonly referred to as the "guilty-not guilty" phase of a trial. A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing. The child is presumed innocent unless and until the prosecution proves that the child is guilty of the charge beyond a reasonable doubt. The burden of proof is on the state. The verdict must be unanimous.

At the beginning of an adjudication hearing the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem: the allegations made against the child; the nature and possible consequences of the proceedings; the child's privilege against self-incrimination; the child's right to trial and to confront witnesses; the child's right to representation by an attorney if he is not already represented; and the child's right to a trial by jury.

Only material, relevant, and competent evidence in accordance with the Texas Rules of Criminal Evidence may be considered in an adjudication hearing. Hearsay testimony is generally not admissible. A statement made by the child out of court is insufficient to support a finding of delinquent conduct or conduct indicating a need for supervision unless it is corroborated in whole or in part by other evidence. An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct. Finally, evidence illegally seized or obtained is inadmissible in an adjudication hearing.

A child may be found guilty of committing a lesser-included offense of the offense charged.

If the judge or jury finds that the child did engage in delinquent conduct or conduct indicating a need for supervision, then the court or jury shall state which of the allegations in the petition were found to be established by the evidence. The court will then set a date and time for the disposition hearing.

If the judge or jury finds that the child did not engage in delinquent conduct or conduct indicating a need for supervision, the court shall dismiss the case with prejudice.

Disposition Hearing: Texas Family Code Section 54.04

This term can be confusing. What we're talking about here is the "sentencing" phase of the proceedings. The disposition hearing only comes into play if the child has been found guilty of the delinquent conduct or criminal activity alleged in the petition. If the child is found not guilty of all allegations during the adjudication hearing then there is no disposition hearing.

The disposition hearing is separate, distinct, and subsequent to the adjudication hearing. There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence as approved by the grand jury. If the child is eligible for determinate sentencing, then the child is entitled to a jury of 12 persons to determine the sentence.

At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. Prior to the disposition hearing, the child's lawyer is to have received all written matter to be considered in disposition. No disposition may be made unless the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made. No disposition placing the child on probation outside the child's home may be made under this section unless the court or jury finds that the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. If the judge or jury grant probation, the court will attach various conditions of the probation. Depending on the nature of the charges and the child's criminal history, if probation is not granted, the child could be sentenced to a term of confinement in the Texas Youth Commission.

Payment of Probation Fees: Texas Family Code Section 54.061

If a child is placed on probation, the juvenile court, after giving the child, parent, or other person responsible for the child's support, a reasonable opportunity to be heard, shall order the child, parent, or other person, if financially able to do so, to pay to the court a fee of not more than $15 a month during the period that the child continues on probation. If the court finds that a child, parent, or other person responsible for the child's support is financially unable to pay the probation fee, the court shall enter into the records of the child's case a statement of that finding.

Monitoring School Attendance: Texas Family Code Section 54.043

If the court places a child on probation and requires as a condition of probation that the child attend school, the probation officer shall monitor the child's school attendance and report to the court if the child is voluntarily absent from school.

Restitution: Texas Family Code Section 54.048

A juvenile court, in a disposition hearing, may order restitution to be made by the child and the child's parents. This applies regardless of whether the petition in the case contains a plea for restitution.

Admission of Unadjudicated Conduct: Section 54.045

During a disposition hearing, a child may admit having engaged in delinquent conduct or conduct indicating a need for supervision for which the child has not been adjudicated and request the court to take the admitted conduct into account in the disposition of the child's pending case. If the prosecutor agrees in writing, then the court may take the admitted conduct into account in the disposition of the child. However, a court may take into account admitted conduct over with exclusive venue lies in another county only if the court obtains the written permission of the prosecuting attorney for that county. A child may not be adjudicated by any court for having engaged in conduct taken into account under this section unless the conduct taken into account included conduct that took place in another county and the written permission of the prosecuting attorney of that county was not obtained.

Community Service: Texas Family Code Section 54.044

If the court places a child on probation, the court shall require as a condition of probation that the child work a specified number of hours at a community service project approved by the court and designated by the juvenile probation department. This requirement may be waived if the court finds that the child is physically or mentally incapable of participating in the project or that participating in the project will be a hardship on the child or his family or that the child has shown good cause that community service should not be required.

Note: The court may also order that the child's parent perform community service with the child.

Child Placed on Probation for Conduct Involving a Handgun:

Texas Family Code Section 54.0406

(a) If a court or jury places a child on probation for conduct that violates a penal law that includes as an element of the offense the possession, carrying, using, or exhibiting of a handgun, and if at the adjudication hearing the court or the jury affirmatively finds that the child personally possessed, carried, used, or exhibited a handgun, the court must require as a condition of probation that the child, not later than the 30th day after the date the court places the child on probation, notify the juvenile probation officer who is supervising the child of the manner in which the child acquired the handgun, including the date and place of any person involved in the acquisition. The juvenile probation officer is then to relay any relevant information regarding the handgun to the police. Your lawyer should be with you when this takes place.

Note: Information provided by the child to the juvenile probation officer regarding the acquisition of the handgun and any other information derived from that information may not be used as evidence against the child in any juvenile or criminal proceeding.

Rights of Appeal: Warning: Texas Family Code Section 54.034

Before the court may accept a child's plea or stipulation of evidence in a proceeding under this title, the court must inform the child that if the court accepts the plea or stipulation and the court makes a disposition in accordance with the agreement between the state and the child regarding the disposition of the case, the child may not appeal an order of the court pursuant to an adjudication hearing, a disposition hearing, or a hearing to modify disposition, unless the court gives the child permission to appeal; or the appeal is based on a matter raised by written motion filed before the proceeding in which the child entered the plea or agreed to the stipulation of evidence. An appeal from an order of a juvenile court is to the court of appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally. The requirements governing a juvenile appeal are as in civil cases generally.

Note: An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond pending the appeal.

Sealing Juvenile Records: Texas Family Code Section 58.003

One of the most important things that can be done for a juvenile is to get the juvenile records sealed as soon as allowed by law.

The benefits of sealing a child's juvenile records are immense. Once the records are sealed, information relating to the arrest, detention, prosecution, and conviction, are physically sealed and/or destroyed. This means that the child can start adulthood with a "clean" slate. And it also means that the child is authorized by law to say that he has never been convicted.

Section 58.003 of the Texas Family Code provides that, except for juveniles who received a determinate sentence for engaging in delinquent conduct that violated a penal law such as murder, capital murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, injury to a child/elderly/disabled person, arson, indecency with a child, etc., or engaged in habitual felony conduct, the juvenile records may be sealed if the court finds that 2 years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and if since that time the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

A court may also order the sealing of records concerning a juvenile adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony (not including many determinate sentences) if: the person is 21 years of age or older; the person was not transferred by a juvenile court to an adult criminal court for prosecution; the records have not been used as evidence in the punishment phase of a criminal proceeding under Article 37.07, Code of Texas Criminal Procedure; and if the person has not been convicted of a penal law of the grade of felony after becoming age 17.

If a child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing (guilt/innocence) the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of all files and records relating to the case.

David Finn is board certified in criminal law by the Texas Board of Legal Specialization. Call today for a free initial consultation.


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Impending transfer of physical possession of the children or a trial court’s unreasonable delay in entering an educational institution to a prison pip

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IN THE SUPREME COURT OF TEXAS



════════════

No. 04-1043

════════════



In re Texas Department of Family and Protective Services





════════════════════════════════════════════════════

On Petition for Writ of Mandamus

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Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.



Justice O’Neill filed a dissenting opinion.





We deny Joy Higdon’s motion for rehearing. We withdraw our opinion of September 22, 2006 and substitute the following in its place.

Section 263.401 of the Texas Family Code establishes a deadline for rendition of a final order in suits affecting the parent-child relationship (SAPCRs) brought by the Texas Department of Family and Protective Services. Although the trial court abused its discretion in failing to dismiss the Department’s case, we conclude that here, the parties challenging the trial court’s denial of a motion to dismiss under section 263.401 had an adequate remedy by accelerated appeal.

On January 23, 2003, the Department filed a SAPCR to terminate the parent–child relationship between Joy Higdon and her two children. That day, the trial court entered an ex parte order giving the Department the authority to take possession of the children, naming the Department temporary managing conservator, and setting the matter for a full adversarial hearing on February 3, 2003. Apparently, Higdon was restored as managing conservator of the children at the February hearing but agreed to place the children with their great-grandmother, Ruby Ludwig.

The trial court held periodic status hearings. In a temporary order dated August 19, 2003, the trial court appointed the Department temporary managing conservator and identified the dismissal date for the case as August 16, 2004. The children continued to reside with Ludwig. In September, the trial court identified the dismissal date for the Department’s case as January 26, 2004, and set the case for trial on the merits. In January, the trial court extended the dismissal date to July 24, 2004, as permitted by section 263.401(b) of the Texas Family Code. On February 23, 2004, Ludwig intervened, seeking sole managing conservatorship of the children.

On Monday, July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon filed motions to dismiss for failure to render a final order before the statutory deadline. The Department rested its case on Friday, July 23, 2004. Saturday, July 24, 2004, was the dismissal deadline identified by the court in its January order. The trial recommenced on Tuesday, July 27, 2004. On July 28, 2004, the jury returned a unanimous verdict terminating the parent-child relationship between Higdon and each child and appointing the Department, rather than Ludwig, as sole managing conservator of the children. The trial court announced the verdict from the bench, terminated the parental rights of the fathers of the children, and denied the motions to dismiss. A hearing for entry of judgment was set for August 11, 2004. The trial court rendered judgment on Higdon’s parental rights and Ludwig’s intervention when it signed and filed the final decree of termination on August 13, 2004.

On August 11, 2004 and August 12, 2004, Ludwig and Higdon, respectively, filed petitions for writ of mandamus with the court of appeals seeking to compel the trial court to dismiss the case for failure to render a final order before the dismissal date. On October 21, 2004, the court of appeals granted mandamus relief and ordered the trial court to dismiss the Department’s case. On November 18, 2004, the court of appeals denied the Department’s motion for rehearing, correctly noting that Ludwig’s intervention would be unaffected by the dismissal of the Department’s SAPCR. The next day, the Department filed a petition for writ of mandamus in this Court and a motion to stay further proceedings. This Court granted the motion to stay.

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135‑36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The issuance of mandamus by the court of appeals is improper if the trial court did not abuse its discretion or if the record fails to demonstrate the lack of an adequate remedy on appeal. In re Prudential, 148 S.W.3d at 135‑36; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A trial court abuses its discretion when it fails to apply the law correctly, so we consider the trial court’s legal ruling. Walker, 827 S.W.2d at 839-40.

In construing a statute, our objective is to determine and give effect to the Legislature’s intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). To determine the Legislature’s intent, we look to the statute’s plain language and the common meaning of the statute’s words. Id. Subsection 263.401(a) of the Texas Family Code requires a trial court to dismiss a SAPCR filed by the Department if a final order has not been rendered by the first Monday after the one-year anniversary of the date when the trial court appointed the Department temporary managing conservator. The statute allows a maximum extension of 180 days. Tex. Fam. Code § 263.401(b), (c). If the trial court has not rendered a final order at the expiration of the additional 180 days, the court must dismiss the SAPCR. Id. § 263.401(c). Section 263.403, entitled “Monitored Return of Child to Parent,” provides an exception to the dismissal rule, but it is not applicable to this case.

Higdon argues the time period described in subsection 263.401(a) began running on the day the trial court entered its ex parte orders. She calculates the first Monday after the one-year anniversary of the January 23, 2003 ex parte order as January 26, 2004. After adding a 180-day extension, she argues the dismissal deadline was Saturday, July 24, 2004. The Department argues that the January 23, 2003 ex parte order that gave the Department temporary conservatorship did not trigger the section 263.401 time period. Instead, the Department contends that the period began after the August 11, 2003 hearing, making the dismissal deadline August 15, 2004.

The Department obtained temporary managing conservatorship by order of the trial court on January 23, 2003. Thus, the statutory time period started on January 23rd because a court “rendered a temporary order appointing the department as temporary managing conservator.” Tex. Fam. Code § 263.401(a). Nothing in the statute excludes the Department’s fourteen-day conservatorship obtained through the ex parte order from the calculation of the dismissal deadline in section 263.401. We therefore determine the deadline to be the date of the Monday following the one-year anniversary of January 23, 2003, which is January 26, 2004.

On January 26, 2004, the trial court held a permanency hearing at which the court concluded that a 180-day extension of this dismissal deadline was in the best interest of the children, as permitted by subsection 263.401(b) of the Texas Family Code and set the dismissal date for July 24, 2004. We agree that July 24, 2004 was the dismissal deadline for the Department’s SAPCR. The trial court erred when it failed to render a final order by that deadline.

Parties may waive complaints about a trial court’s failure to render a timely final order. Section 263.402 describes the vehicles by which a party can obtain a dismissal: a timely motion to dismiss or a motion requesting the court to render a final order before the deadline for dismissal. A timely motion to dismiss must be filed before the Department introduces all of its evidence, other than rebuttal evidence. Id. § 263.402(b). A motion requesting the court to render a final order must be made before the dismissal deadline passes. Id. The Department argues that Ludwig’s and Higdon’s motions to dismiss were not timely made.

On July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon made motions to dismiss based on the Saturday, July 24 dismissal deadline. The Department rested its case on Friday, July 23. On Wednesday, July 28, 2004, the jury returned a unanimous verdict terminating the parent-child relationship between Higdon and each child and appointing the Department, rather than Ludwig, sole managing conservator of the children. The trial court read the verdict, terminated the parental rights of the fathers, and denied both motions to dismiss. Higdon and Ludwig complied with the statutory deadline by filing before the Department rested and had ripe motions to dismiss before the trial court when the deadline passed. The trial court abused its discretion by failing to dismiss the Department’s SAPCR within the statutory time period as requested by Higdon’s and Ludwig’s timely motions.

Now we must determine whether the court of appeals correctly concluded that Higdon and Ludwig had no adequate remedy by appeal and were therefore entitled to mandamus relief. Although we have recognized that the standard’s “operative word, ‘adequate’, has no comprehensive definition” and demands a “careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts,” mandamus will not issue when the law provides another plain, adequate, and complete remedy. In re Prudential, 148 S.W.3d at 135‑36; see also Iley v. Hughes, 311 S.W.2d 648, 652 (Tex. 1958).

However, “[j]ustice demands a speedy resolution” in cases involving child custody. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). In fact, we have acknowledged that appeal “is frequently inadequate to protect the rights of parents and children . . . .” Id. (granting mandamus relief for a trial court’s failure to transfer a custody dispute to the required venue). The Legislature enacted section 263.405, which provides an accelerated appeal that shortens deadlines, expedites filing of the appellate record, and requires the appellate court to “render its final order or judgment with the least possible delay,” to address this concern. Tex. Fam. Code § 263.405(a); see House Comm. On Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 2249, 77th Leg., R.S. (2001) (“House bill 2249 addresses post-judgment appellate delays . . . .”); see also Tex. Fam. Code § 263.405 (expediting appeals of final orders rendered under subchapter E “Final Order for Child under Department Care”); id. § 263.304 (authorizing parties to seek mandamus relief to compel a court to comply with certain duties). Texas Rule of Appellate Procedure 28 provides other mechanisms for expediting appeals involving the termination of parental rights.

In this case, Higdon and Ludwig filed their motions to dismiss during trial. Because the trial was underway when the dismissal deadline passed and because physical possession of the children had already transferred to the Department when the petition for writ of mandamus was filed with the court of appeals, we conclude that an accelerated appeal provided an adequate remedy in this case. We do not hold that a party complaining of a trial court’s failure to dismiss a SAPCR within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of the children or a trial court’s unreasonable delay in entering a final decree might alter this conclusion, but this record raises neither concern. In fact, because the trial court entered the final decree on August 13, 2004, Ludwig and Higdon could have initiated an accelerated appeal under section 263.403 of the Texas Family Code at worst two days after they filed their petitions for writ of mandamus.

We recognize that in particular cases the statute could work injustice or encourage gamesmanship to push litigation beyond the deadline. We presume the Legislature recognized this also. But the Legislature also recognized that a statutory deadline would expedite the trial of these cases to help provide a modicum of certainty for children whose family situations are subject to the outcomes in these proceedings. It is not the Court’s task to choose between competing policies addressed by legislative drafting. See McIntyre, 109 S.W.3d at 748. We apply the mandates in the statute as written.

For these reasons, we conclude that the court of appeals erred in granting Ludwig’s and Higdon’s petitions for writ of mandamus. We conditionally grant the Department’s petition for writ of mandamus because Higdon and Ludwig had an adequate remedy by appeal. Pursuant to Texas Rule of Appellate Procedure 52.8(c) and without hearing oral argument, we direct the court of appeals to vacate its order to the trial court directing the trial court to dismiss the case. The writ will issue only if the court of appeals does not comply.





________________________________________

J. Dale Wainwright

Justice





OPINION DELIVERED: December 15, 2006

Teachers are leaving children behind by referring them to the courts.....yet they are rewarded for it!~ Why?

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Page 1
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Matter of:
STUDENT,
Petitioner,
v.
UPPER LAKE UNION HIGH SCHOOL
DISTRICT,
Respondent.
OAH CASE NO. N2006050375
DECISION
Judith A. Kopec, Administrative Law Judge, Office of Administrative Hearings,
Special Education Division, State of California, heard this matter on September 12, 2006, in
Upper Lake, California.
Gayle Zepeda, Education Director, Robinson Rancheria Band of Pomo Indians, and
Marsha M. Lee, Indian Child Welfare Act/Human Services Coordinator, Robinson Rancheria
Band of Pomo Indians, represented Petitioner (Student). Student also attended.
Jeff Hassberg, Director of Special Education and School Psychologist, represented
Respondent Upper Lake Union High School District (District). Don Boyd, Vice Principal,
Upper Lake High School (ULHS), also attended.
Student filed the amended Complaint on July 17, 2006. The hearing was conducted
and the matter was submitted on September 12, 2006.
Page 2
ISSUES
1
Did District deny Student a free and appropriate public education (FAPE) by the
following:
1.
Failing to provide Student with information concerning the transfer of special
education rights when she turned 18 years of age?
2.
Failing to provide Student and her advocates written notice of the
individualized education program (IEP) team meetings on March 28, April 28,
and May 8, 2006?
3.
Failing to provide Student a timely assessment?
4.
Failing to implement Student’s positive behavior plan?
5.
Failing to follow the required process when disciplining Student?
CONTENTIONS OF THE PARTIES
Student contends that District was required to have Student complete a written
assignment of educational decision-making authority when she reached 18 years of age.
District contends that it was not required to have Student complete a written assignment of
educational decision-making authority.
Student contends that District failed to give her or her advocates written notice of IEP
team meetings on March 28, April 28, and May 8, 2006. District contends that Student did
not authorize District to inform her advocates of the IEP team meetings.
Student contends that District failed to provide Student a timely cognitive ability
assessment and social-emotional assessment because it offered to assess her shortly before
she graduated from high school. District contends that its plan to assess Student was
appropriate.
Student contends that District failed to implement her positive behavior plan. District
contends that it attempted to implement Student’s positive behavior plan but Student refused
the services that were offered.
Student contends that District expelled Student on January 17, 2006, without
conducting a manifestation determination. District contends that it was not required to do so
because it conducted one in October 2005 when Student was suspended for the same
conduct. Student contends that District expelled her in January 2006 without providing her
1
The issues were re-organized for purpose of this decision.
2
Page 3
an interim alternative educational placement or any educational services. District contends
that it provided educational services by mailing Student a packet of educational materials
that she was to complete during her expulsion.
Student contends that she is entitled to receive unspecified compensatory education
from the District. District contends that Student is not entitled to compensatory education
because she graduated from high school with a regular diploma.
FACTUAL FINDINGS
Background Information
1.
Student is eligible for special education services on the basis of a specific
learning disability. She attended District’s ULHS during the 2005-2006 school year and
graduated with a regular diploma at the end of the school year.
Transfer of Special Education Rights
2.
As described in Legal Conclusions paragraph 7, upon reaching 18 years of
age, all rights under special education law transfer to a student who is legally competent.
Student was 18 years old when she first attended a District school. Student understood that
once she turned 18 years old, she was responsible for signing her IEPs and other special
education documents. District neither provided Student information about how she could
assign her special education rights to someone else once she reached 18 years of age, nor was
District required to do so.
Notices of IEP Team Meetings to Student and Advocates
3.
As discussed in Legal Conclusions paragraph 8, a student who is 18 years of
age is entitled to receive notices of IEP team meetings.
4.
Student has failed to show that IEP team meetings were held on March 28 or
May 8, 2006. District was not required to send notices of meetings on March 28 and May 8,
2006, to Student or her advocates.
5.
An IEP team meeting was held on April 28, 2006. Student did not offer any
evidence about whether or not she received notice of this meeting. There is insufficient
evidence that District failed to send Student timely notice of the IEP team meeting on
April 28, 2006. District was not required to send a notice of that meeting to either Ms. Lee
or Ms. Zepeda.
3
Page 4
Timely Assessment of Student
6.
As discussed in Legal Conclusions paragraph 9, a district must assess a student
at least once every three years, or if a parent or teacher requests an assessment. At a meeting
on May 25, 2006, District offered Student an assessment plan for a comprehensive psycho-
educational assessment to be performed by School Psychologist Jeff Hassberg. It is
unknown whether Student attended this meeting. Ms. Lee attended the meeting and objected
to the assessment plan because she did not believe that Mr. Hassberg would perform an
objective assessment. The assessment plan was never signed. Student has not shown that
District failed to perform a timely triennial assessment. There is no evidence that Student, or
anyone on her behalf, requested an assessment that was not performed. Student has failed to
show that District failed to provide a timely assessment.
Student’s Discipline History
7.
Student was suspended for five days in October 2005 for smoking marijuana
on school grounds. She was expelled for smoking marijuana on school grounds in
January 2006. On February 22, 2006, District’s governing board suspended the expulsion
and placed Student on probation as long as she complied with specific conditions. Although
Student could have attended ULHS after the school board’s action, the District did not
inform Student that she could return to school until March 28, 2006. Student was removed
from her educational placement for two months after she was expelled. Student was
disciplined for the third time in May 2006 after an incident with a classroom aide. The
punishment for this incident is unclear.
2
Implementation of Student’s Behavior Plan
8.
As discussed in Legal Conclusions paragraph 11, a district is required to
develop and implement a behavior plan in connection with the imposition of discipline. On
October 28, 2005, District developed a positive behavior support plan for Student in
connection with her suspension for smoking marijuana at school. The antecedent behavior to
the inappropriate conduct identified in the behavior plan is Student’s need to alter her mood
to achieve a calmer, more relaxed state. The behavior plan was designed to provide Student
with alternative methods to achieve a calm, relaxed state of mind.
9.
The behavior plan required that Student have a minimum of three, 20-minute
sessions with the school psychologist during the 2005-2006 school year. During these
sessions, Student was to practice breathing and visualization techniques to achieve a calmer,
more relaxed state of mind, and discuss other methods to assist her, such as dream
manipulation and meditation. Once developed, the behavior plan is part of Student’s IEP.
2
Although Student testified that she was expelled for the May incident, her testimony in this area is not
persuasive because she appeared confused about the chronology of her discipline in January and May 2006.
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10.
Mr. Hassberg met with Student for 15 minutes on November 16, 2005. He
gave her information concerning substance abuse, and told her that they would meet again to
implement the behavior plan. On December 8, 2005 and January 10, 2006, Mr. Hassberg
attempted to conduct counseling sessions with Student. However, she refused to leave her
classroom and go to Mr. Hassberg’s offices for the sessions. Mr. Hassberg made no further
attempts to implement Student’s behavior plan because he believed that Student was resistant
to counseling and was not going to benefit from the counseling required by the behavior
plan. Student was never provided information about breathing and visualization techniques,
dream manipulation or meditation, as required by her behavior plan. District took no steps to
modify Student’s behavior plan. The District failed to implement the counseling required by
Student’s October 2005 positive behavior plan.
11.
The behavior plan also requires that if Student uses marijuana again, she will
be instructed concerning the dangers of marijuana dependency, and an emergency IEP team
meeting will be held to review her IEP and behavior plan to determine the appropriateness of
the IEP and related support services. Student offered no evidence concerning whether or not
District complied with these requirements of the behavior plan when she was disciplined
again in January 2006 for using marijuana at school. The May 2006 incident for which
Student was disciplined did not involve substance abuse; therefore, Student’s behavior plan
did not require any action by District. There is no evidence that District failed to implement
Student’s behavior plan in connection with the May 2006 incident.
Manifestation Determination for January 2006 Expulsion
12.
As discussed in Legal Conclusions paragraphs 15 through 18, a district is
required to conduct a manifestation determination when it removes a student from an
educational placement for over 10 days, subjects a student to a pattern of removals that total
more than 10 days, or removes a student to an interim alternative educational setting for
specific conduct involving weapons, drugs, or violent acts.
13.
When Student was suspended in October 2005 for smoking marijuana on
school grounds, a manifestation determination was made that the conduct was not caused by
and did not have a direct and substantial relationship to Student’s disability. It was also
determined that Student’s conduct was not the direct result of District’s failure to implement
her IEP.
14.
District did not conduct a manifestation determination in connection with
Student’s expulsion in January 2006. Mr. Hassberg opined that District was not required to
do so because District previously determined in October 2005 that smoking marijuana was
not a manifestation of Student’s disability. As described in Legal Conclusions paragraph 17,
the fact that District conducted a manifestation determination in October 2005 does not fulfill
its obligation to conduct one in connection with Student’s expulsion in January 2006.
Student offered no evidence that the failure to conduct a manifestation determination resulted
in lost educational opportunity, serious infringement upon the opportunity to participate in
the decision-making process, or a deprivation of educational benefits.
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Interim Alternative Educational Placement
15.
As discussed in Legal Conclusions paragraphs 13 and 14, a district is obligated
to provide a student with special education services whenever a student is suspended for over
10 days or is removed from his or her current educational placement due to specified conduct
involving weapons, drugs, or violent acts. A district must provide services that enable the
student to continue to participate in the general education curriculum and to progress toward
meeting the goals in the student’s IEP. Student was expelled for two months between
January and April 2006 for one of the specified drug offenses and was entitled to receive
education services.
16.
On January 19, 2006, Mr. Hassberg mailed a letter and a packet of school
work to Student. It included materials in math, English, history, and science that would take
two weeks to be completed at a typical pace. In the letter, Mr. Hassberg informed Student
that he and Student’s classroom teacher were available by telephone to assist her if she
needed it. District also offered Student individual, school-based counseling related to
substance abuse. Student never received this letter or packet of school work.
17.
During Student’s removal from ULHS in January through March 2006,
Ms. Lee and Ms. Zepeda actively worked to move Student into an educational placement.
They had repeated contact with several employees of the Lake County Office of Education
and with other schools in the area. There is no evidence that there was any contact between
District and Student until Student and Ms. Lee attended a meeting on March 28, 2006.
Mr. Hassberg informed Student at that meeting that she could return to school.
18.
District failed to provide Student with an interim alternative educational
placement and failed to provide her any educational services during the two months of her
expulsion from January to March 2006. Because the District provided no educational
services to Student, she was unable to continue to participate in the general education
curriculum while she was expelled.
Compensatory Education
19.
As discussed in Legal Conclusions paragraph 20, a student who has graduated
from high school may be awarded compensatory educational services to remedy a school
district’s failure to provide the student a FAPE while in school.
20.
Student graduated from high school with ‘D’ grades in all subjects except art,
in which she received an ‘F.’ In April 2005, Student’s basic reading skills were
approximately at the fourth grade level. Student has difficulty comprehending written
material and problems with memory retention. Student often did not use proper grammar
while she testified. Student has unique needs in the areas of written language and reading.
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LEGAL CONCLUSIONS
Applicable Law
Requirements of a FAPE
1.
A child with a disability has the right to a FAPE. (20 U.S.C. §1412(a)(1)(A);
Ed. Code, § 56000.) A FAPE is defined in pertinent part as special education and related
services that are provided at public expense and under public supervision and direction, that
meet the State’s educational standards, and that conform to the student’s IEP. (20 U.S.C.
§ 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).) Special education is defined in
pertinent part as specially-designed instruction and related services that meet the unique
needs of a child with a disability and are required to assist the child to benefit from
instruction. (20 U.S.C. § 1401(29); Ed. Code, § 56031.)
2.
The IDEA requires a school district to provide “a basic floor of opportunity
. . . [consisting] of access to specialized instruction and related services which are
individually designed to provide educational benefit to the [child with a disability].” (Bd. of
Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176,
201.) The intent of the IDEA is to “open the door of public education” to a child with a
disability; it does not “guarantee any particular level of education once inside.” (Id. at p.
192.) A school district is not required to maximize a child’s potential. (Id. at p. 197.)
3.
The analysis focuses on the placement offered by the school district, not on the
alternative preferred by the parents. (Gregory K. v. Longview School Dist. (9th Cir. 1987)
811 F.2d 1307, 1314.) The district must offer a program that is reasonably calculated to
provide more than a trivial or minimal level of progress. (Amanda J. v. Clark County School
Dist. (9th Cir. 2001) 267 F.3d 877, 890, citing Hall v. Vance County Bd. of Education (4th
Cir. 1985) 774 F.2d 629, 636.)
4.
In addition to these substantive requirements, the Supreme Court recognized
the importance of adhering to the procedural requirements of the IDEA. Thus, the analysis
of whether a student has been provided a FAPE is two-fold: the school district must comply
with the procedural requirements of the IDEA, and the IEP must be reasonably calculated to
provide the child with educational benefits. (Bd. of Education of the Hendrick Hudson
Central School Dist. v. Rowley, supra, 458 U.S. at pp. 206-207.)
5.
While a student is entitled to both the procedural and substantive protections
of the IDEA, not every procedural violation is sufficient to support a finding that a student
was denied a FAPE. Mere technical violations will not render an IEP invalid. (Amanda J. v.
Clark County School Dist., supra, 267 F.3d at p. 892.) To constitute a denial of a FAPE,
procedural violations must result in one of the following: the loss of educational
opportunity; a serious infringement of the parents’ opportunity to participate in the IEP
process; or a deprivation of educational benefits. (Ibid.) A substantially similar standard
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was codified in the IDEIA (20 U.S.C. § 1415(f)(3)(E)(ii)) and is codified in California law
(Ed. Code, § 56505, subd. (f)(2)).
Burden of Proof
6.
As the petitioner, Student has the burden of proving that the District did not
comply with the law. (Schaffer v. Weast (2005) 546 U.S. ___ [126 S.Ct. 528, 163 L.Ed.2d
387].
Transfer of Educational Rights
7.
When a student receiving special education services who is legally competent
reaches 18 years of age, the local educational agency shall provide any required notice of
procedural safeguards to both the student and the student’s parents. (34 C.F.R. § 300.517(a);
Ed. Code, § 56041.5.) All other special education rights previously accorded to the parents
shall transfer to the student. (Ibid.)
Notice of IEP Team Meetings
8.
A parent or guardian shall be notified of the IEP team meeting early enough to
ensure an opportunity to attend. (Ed. Code, §§ 56043, subd. (e); 56341.5, subd. (b).) A
district convening an IEP team meeting shall take steps to ensure that no less than one of the
parents or guardians of the student are present at each meeting or are afforded the
opportunity to participate. (Ed. Code, § 56341.5, subd. (a).) A district is required to provide
these rights to a student who is 18 years of age. (Ed. Code, § 56041.5.)
Requirements of an Evaluation or Assessment
9.
A school district must re-evaluate a child with a disability at least once every
three years, or if a parent or teacher requests an evaluation. (20 U.S.C. § 1414(a)(2);
34 C.F.R. § 300.536(b); Ed. Code, § 56381, subd. (a)(2).) A school district is required to
assess a child in all areas of suspected disability. (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R.
§ 300.532(g); Ed. Code, § 56320, subd. (f).)
10.
Whenever an assessment for the development or revision of an IEP is to be
conducted, the school district shall provide the parent with a written assessment plan meeting
specific requirements within specific time periods. (Ed. Code, § 56321.) An IEP required as
a result of an assessment shall be developed within 60 days from the date the school district
received the parent’s written consent for the assessment, unless the parent agrees in writing
to an extension. (Ed. Code, §§ 56043, subd. (f)(1); 56344, subd. (a).)
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Behavior Intervention Plan
11.
There are two situations in which federal and state law require that a child’s
behavior be addressed. First, when a child’s behavior impedes the child’s learning or that of
others, the IEP team must consider strategies, including positive behavioral interventions,
and supports to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.346(a)
(2)(i), (b); Ed. Code, § 56341.1, subd. (b)(1).) Second, when a school district subjects a child
to certain types of discipline, it must conduct a functional behavior assessment and
implement a behavior intervention plan, or review and modify the behavior intervention plan
if one is already in place. (20 U.S.C. § 1415(k)(1)(D), (F); 34 C.F.R. § 300.520(b); Ed.
Code, § 48915.5, subd. (a); Alex R. v. Forrestville Valley Community Unit School Dist. #221
(7th Cir. 2004) 375 F.3d 603, 614.)
Discipline Process
12.
School personal may remove a child with a disability who violates a code of
student conduct from his or her current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than 10 school days, to the
extent that the same alternatives are applied to children without disabilities. (20 U.S.C.
§1415(k)(1)(B); Ed. Code, § 48915.5, subd. (a) [a student with a disability may be suspended
or expelled from school as provided by federal law].) The student’s IEP team determines the
interim alternative educational setting to which the student is removed. (20 U.S.C.
§ 1415(k)(2).)
13.
A student who is removed from his or her current placement for disciplinary
reasons for 10 days or less need not receive special education services if educational services
are not provided to a child without a disability who is similarly disciplined. (34 C.F.R.
§ 300.121(d)(1).) However, a student who is removed to an interim alternative educational
setting for not more than 45 school days for carrying or possessing a weapon at school, on
school premises, or at a school function; knowingly possessing or using illegal drugs, or
selling or soliciting the sale of a controlled substance while at school, on school premises, or
at a school function; or inflicting serious bodily injury upon another while at school, on
school premises, or at a school function shall receive educational services. (20 U.S.C.
§ 1415(k)(1)(D)(i).) A student who is removed for these offenses shall receive educational
services that enable him or her to continue to participate in the general education curriculum,
although in another setting, and to progress toward meeting the goals in the student’s IEP.
(Ibid.; see 34 C.F.R. § 300.121(d).) Several factors should be considered when determining
the nature of educational services to be provided, including the length of time the student is
removed from his or her educational placement; the extent to which the child has been
removed previously from the placement; and the child’s needs and educational goals.
(64 Fed.Reg. 12623 (Mar. 12, 1999).
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14.
A student who is either removed for over 10 days, or is subjected to a pattern
of removals that total more than 10 school days in a school year is entitled to receive special
education services. (20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. §§ 300.519(b); 300.520(a)(1)(ii).)
15.
A district is required to conduct a review to determine if the conduct that is
subject to discipline is a manifestation of the student’s disability; this is known as a
“manifestation determination.” A district is required to conduct a manifestation
determination whenever it removes a student from his or her current educational placement
for over 10 days; subjects a student to a pattern of removals that total over 10 days; or
removes a student to an interim alternative educational setting for specific conduct involving
weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)(1)(E).)
16.
A manifestation determination must be conducted by the district, the parent,
and relevant members of the IEP team. (20 U.S.C. § 1415(k)(1)(E)(i).) They must review
all relevant information in the student’s file, including the IEP, any observations of teachers,
and any relevant information from the parents to determine if the conduct was caused by, or
had a direct and substantial relationship to the child’s disability, or if the conduct was the
direct result of the district’s failure to implement the IEP. (Ibid.) The manifestation
determination must be done within 10 school days of a decision to change the placement of
the student due to a violation of the code of student conduct. (Ibid.)
17.
A manifestation determination is an individualized review. (64 Fed.Reg.
12666 (Mar. 12, 1999).) A manifestation determination should be conducted even when a
student engages in the same conduct that was previously determined not to be a
manifestation of his or her disability, because the assessment of the relationship between the
student’s behavior and disability could change. (Ibid.)
18.
If it is determined that the student’s conduct was a manifestation of his or her
disability, the student must be returned to his or her regular educational placement unless
either the parent and district agree to a change of placement, or the student was removed for
enumerated conduct involving weapons, drugs, or violent acts. (20 U.S.C. § 1415(k)
(1)(F)(iii).)
Determination of Relief
19.
Education Code section 56026.1, subdivision (a) and 34 Code of Federal
Regulations part 300.122(a)(3)(i) provide that a student who graduates from high school with
a regular high school diploma is no longer eligible for special education services. Some
courts have found that any claim that a FAPE was denied becomes moot upon a valid
graduation. (Russman v. The Bd. of Education of the Enlarged City School Dist. of the City
of Waterliet (2nd Cir. 2001) 260 F.3d 114, 119; T.S. v. Independent School Dist. No. 54 (10th
Cir. 2001) 265 F.3d 1090, 1092 [If a student who graduated from high school does not
contest his or her graduation in a request for a due process hearing, the case is moot.].)
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20.
Relying upon the United States Supreme Court’s broad interpretation of the
relief authorized for violations of the IDEA in School Committee of the Town of Burlington
v. Dept. of Education of Massachusetts (1985) 471 U.S. 359, 369-370), some courts have
long held that there is authority to order compensatory education to an adult if it is necessary
to cure a past violation. (Bd. of Education of Oak Park & River Forest High School Dist.
200 v. Ill. State Bd. of Education (7th Cir. 1996) 79 F.3d 654, 656; see also Capistrano
Unified School Dist. v. Wartenberg (9th Cir. 1995) 59 F.3d 884, 890 [request for
reimbursement for private school tuition is not moot after the student graduates from high
school]; Maine School Administrative Dist. No. 35 v. Mr. and Mrs. R. (1st Cir. 2003) 321
F.3d 9, 18 [a child eligible for special education services may be entitled to further services
in compensation for past violations even after his or her eligibility for special education
services has expired]; Pihl v. Mass. Dept. of Education (1st Cir. 1993) 9 F.3d 184, 189,
relying upon Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1, 4 fn. 3 [request
for reimbursement of educational services remains a live controversy after student’s
graduation from high school].)
3
21.
It has long been recognized that equitable considerations may be considered
when fashioning relief for violations of the IDEA. (Florence County School Dist. Four v.
Carter (1993) 510 U.S. 7, 16; Parents of Student W v. Puyallup School Dist., No. 3 (9th Cir.
1994) 31 F.3d 1489, 1496.) Compensatory education is an equitable remedy; it is not a
contractual remedy. (Id. at p. 1497.) The law does not require that day-for-day
compensation be awarded for time missed. (Ibid.). Relief is appropriate that is designed to
ensure that the student is appropriately educated within the meaning of the IDEA. (Ibid.)
22.
An award to compensate for past violations must rely on an individualized
assessment, just as an IEP focuses on the individual student’s needs. (Reid v. District of
Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) When determining an award of
compensatory education, the inquiry must be fact-specific. (Ibid.) The award must be
reasonably calculated to provide the educational benefits that likely would have accrued from
special education services the school district should have supplied in the first place. (Ibid.)
Determination of Issues
Did District deny Student a FAPE by failing to provide her information concerning the
transfer of special education rights when she turned 18 years of age?
23.
As discussed in Legal Conclusions paragraph 7, all rights under special
education law transferred to Student when she turned 18 years of age. Student argued that as
part of the transfer of rights to Student, District was required to inform her how she could
assign her educational rights to another person. As determined in Factual Findings paragraph
3
An unpublished federal district court decision in California followed this view, San Dieguito Union High
School Dist. v. Guray-Jacobs (S.D. Cal. 2005) 44 IDELR 189, which offers persuasive, but not precedential
authority. (City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5
[citation of unpublished federal district court decision is not prohibited by California Rules of Court, rule 977].)
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2, District did not deny Student a FAPE by failing to provide her with information about how
she could assign her special education rights to someone else.
Did District deny Student a FAPE by failing to provide Student and her advocates written
notice of the IEP team meetings on March 28, April 28, and May 8, 2006
24.
As discussed in Legal Conclusions paragraph 8, District was required to
provide Student notice of any IEP team meeting. As determined in Factual Findings
paragraphs 4 and 5, District did not deny Student a FAPE by failing to provide Student or her
advocates with notice of IEP team meetings on March 28, April 28, and May 8, 2006.
Did District deny Student a FAPE by failing to provide Student a timely assessment?
25.
As discussed in Legal Conclusions paragraphs 9 and 10, District was required
to assess Student at least once every three years or if a teacher or Student requested an
assessment. As determined in Factual Findings paragraph 6, District did not deny Student a
FAPE by failing to provide Student a timely assessment.
Did District deny Student a FAPE by failing to implement Student’s positive behavior plan?
26.
As discussed in Legal Conclusions paragraphs 1 and 11, District was required
to implement Student’s behavior plan to provide her a FAPE. As determined in Factual
Findings paragraphs 8 through 11, District denied Student a FAPE by failing to provide
Student the counseling required by her behavior plan.
Did District deny Student a FAPE by failing to follow the required process when disciplining
Student?
27.
As discussed in Legal Conclusions paragraphs 15 and 16 and as determined by
Factual Findings paragraph 14, District failed to conduct a manifestation determination when
it expelled Student in January 2006. As determined by Factual Findings paragraph 14,
Student failed to show that she lost educational opportunity, was unable to meaningfully
participate in the IEP process, or was deprived of educational benefits. As discussed in
Legal Conclusions paragraph 5, District did not deny Student a FAPE by failing to conduct a
manifestation determination concerning her expulsion in January 2006.
28.
As discussed in Legal Conclusions paragraphs 12 through 14, District was
required to provide educational services to Student during her expulsion from January to
March 2006 to enable her to continue to participate in the general education curriculum and
to progress toward meeting the goals in her IEP. As determined by Factual Findings
paragraph 18, District denied Student a FAPE by failing to provide educational services to
her during her expulsion.
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Is Student entitled to receive compensatory education?
29.
As discussed in Legal Conclusions paragraph 20, Student is entitled to receive
compensatory education services for the District’s denial of a FAPE. As determined in Legal
Conclusions paragraphs 26 and 28, District failed to provide Student a FAPE by failing to
implement her October 2005 positive behavior plan and by failing to provide educational
services during her expulsion in January to March 2006.
30.
As discussed in Legal Conclusions paragraphs 21 and 22, an award of
compensatory education is designed to compensate Student for the special education and
related services that the District failed to provide her. As determined by Factual Findings
paragraph 20, Student requires compensatory education in the areas of written language and
reading. Student shall receive 24 hours of individual instruction by a credentialed teacher in
written language and reading. The instruction may be provided by District staff, or the
District shall arrange for the instruction to be provided by an independent vendor.
31.
As determined by Factual Findings paragraph 10, District failed to provide
counseling to Student as required by her behavior support plan. Student shall receive three
hours of individual counseling by an appropriately-licensed mental health professional who
is not a District employee. The counseling shall include methods Student can use to achieve
a calmer, more relaxed state of mind.
ORDER
1.
Student is entitled to 24 hours a of individual instruction by a credentialed
teacher in written language and reading. The instruction shall be provided by
a credentialed teacher. The instruction may be provided by District staff, or
the District shall arrange for the instruction to be provided by an independent
vendor.
2.
Student is entitled to three hours of individual counseling by an appropriately-
licensed mental health professional who is not a District employee. The
counseling shall include methods Student can use to achieve a calmer, more
relaxed state of mind.
3.
Student’s further request for relief is denied.
PREVAILING PARTY
Education Code section 56507, subdivision (d), requires a decision to indicate the
extent to which each party prevailed on each issue heard and decided. Student prevailed on
issues 4 and 5. District prevailed on issues 1, 2, and 3.
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RIGHT TO APPEAL THIS DECISION
The parties to this case have the right to appeal this Decision to a court of competent
jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision.
(Ed. Code, § 56505, subd. (k).)
Dated: September 26, 2006
___________________________
JUDITH A. KOPEC
Administrative Law Judge
Special Education Division
Office of Administrative Hearings
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