California OAH special education order · May 29, 2013
Order Granting Request for Continuance and Setting New Dates
OAH Case No. 2013050308 · ALJ Troy K. Taira
OAH granted Parents' continuance but set hearing for August 12, 2013, not October, because Parent's unsworn claim of military call-up did not justify a lengthy delay.
This case went to decision
Stanislaus Union School District v. Student: Stanislaus Union may exit a first grader with autism from special education; triennial assessment upheld and IEE denied. (2013)
Summary
Parents asked to continue the District-filed case, saying Student's father had been called up to support the Marine Corps and a sibling had surgery scheduled in July 2013. They asked for an October 2013 hearing. The District did not oppose a continuance but objected to Parents' dates and asked for a hearing no later than August 12, 2013. OAH granted the continuance and vacated all dates. It set the hearing for August 12, 2013, finding the unsworn assertions and a past-service Letter of Appreciation did not establish good cause for a lengthy delay. Parents may seek more time with a sworn declaration and official military documents.
Why it matters
Families seeking a long continuance should support the request with a sworn declaration and official documents, such as military orders, proving the current reason for unavailability. Unsworn statements may get only a short delay.
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:
STANISLAUS UNION ELEMENTARY OAH CASE NO. 2013050308
SCHOOL DISTRICT,
ORDER GRANTING REQUEST FOR
v. CONTINUANCE AND SETTING NEW
DATES
PARENTS ON BEHALF OF STUDENT.
On May 28, 2013, Parents, on behalf of Student, filed a request to continue the dates in this matter based upon Student’s father’s unsworn assertion that he has been called up to provide support to the United States Marine Corps, starting May 25, 2013, and that Student’s sibling is scheduled for surgery in July 2013. Parents request a hearing date on either October 15 or 22, 2013, with a prehearing conference on September 25 or 30, 2013, and mediation on June 19 or 26, 2013. On May 29, 2013, Stanislaus Union Elementary School District filed a non-opposition to the continuance, but opposed Parent’s requested hearing dates, and requested hearing dates no later than August 12, 2013.
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:
Granted. All dates are vacated. However, Parent’s unsworn assertions do not sufficiently establish good cause for a lengthy delay to extend the hearing dates to October
2013. Parents may request an additional delay by submitting a sworn declaration with
sufficient facts to justify a lengthy delay, including a copy of official documents such as a letter from father’s command or military orders to verify his current status. Parents submitted a Letter of Appreciation from father’s command for his past service to the Marine Corps, which is insufficient to show his current status. This matter will be set as follows:
Mediation: June 26, 2013 at 9:30 AM Prehearing Conference: August 5, 2013 at 1:00 PM Due Process Hearing: August 12, 2013 at1:30 PM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
IT IS SO ORDERED.
Dated: May 29, 2013 /s/
TROY K. TAIRA
Administrative Law Judge Office of Administrative Hearings