California OAH special education order · June 17, 2013
Order Denying Request for Continuance
OAH Case No. 2013030530 · ALJ June R. Lehrman
OAH denied Parent's day-before-hearing continuance request because Parent gave no proof of a family member's illness and no reason why the other parent could not attend the hearing.
This case went to decision
Torrance Unified School District v. Student: Torrance Unified may complete a triennial reassessment without parental consent, and parents may not be present in the testing room. (2013)
Summary
The day before the hearing in District's case, Student's father asked to continue it, saying a family member was ill out of state and the whole family planned to travel. He filed no sworn declaration or medical records, proposed no new dates, and did not serve District. District opposed. It pointed out that Father had raised a continuance orally at the prehearing conference but never filed a written request, that the case had been pending since March and had already been continued once, and that the request had no supporting proof. OAH found no good cause because Father offered no proof and gave no reason why Mother could not attend without him, so all hearing dates stayed in place.
Why it matters
Continuances are disfavored in special education cases, especially on the eve of hearing. Parents seeking one should file early, serve the other side, propose new dates, and back up the reason with a sworn declaration or documents. They should also explain why another parent or representative cannot attend instead.
Key authority cited
- 34 C.F.R. § 300.515
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
TORRANCE UNIFIED SCHOOL OAH CASE NO. 2013030530
DISTRICT,
ORDER DENYING REQUEST FOR
v. CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On June 17, 2013, the day prior to the scheduled commencement of the hearing in this matter, Student’s father (Father) filed a Request for Continuance (RFC), stating that his mother was ill in Arizona, and required him to travel to care for her. Father did not file a declaration under penalty of perjury, nor any medical documentation attesting to the purported illness or urgency. Father’s RFC did not state any dates certain for the continued hearing, nor did Father serve District with the RFC, nor indicate that any attempt had been made to contact District. Father did not provide any evidence about why Student’s mother (Mother) would be unable to attend the hearing, other than to state that the entire family planned to travel to Arizona.
On June 17, 2013, District opposed the RFC, arguing that it lacked credibility because: (1) Father had, at the Prehearing Conference (PHC) on June 10, 2013, orally requested a continuance but had failed to supply a written RFC as requested by the Administrative Law Judge (ALJ) at that time; (2) Father had, at the PHC, also made a Motion to Dismiss the entire matter which was denied; (3) the RFC contained no supporting proof or documentation. District also opposed on the grounds that this matter had been pending since March 15, 2013, and has already been continued once.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;
and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Denied. All dates are confirmed and shall proceed as calendared. Father submitted no proof of the reasons for his request, and provided no reason why, if he is unavailable, Mother cannot attend the hearing in his absence.
IT IS SO ORDERED.
Dated: June 17, 2013 /s/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings