California OAH special education order · June 9, 2015

Order Denying Student's Request to End the Due Process Hearing and Granting District's Request to Continue the Due Process Hearing to June 16, 2015

OAH Case No. 2015010467 · ALJ Marian H. Tully

OAH refused to end the hearing when Parents objected that it was unfair and walked out. It continued the hearing to June 16, 2015, because two essential District witnesses were unavailable.

Ruling Scheduling and continuances

This case went to decision

Buena Park School District v. Student: Buena Park School District loses bid to defend assessments and reassess without consent after failing to provide Romanian-language plans. (2015)

Summary

On the fifth day of hearing, Parents objected that the proceedings were not fair and asked the ALJ to end the hearing. The ALJ declined, giving her reasons on the record, and Parents left; the hearing went forward with two District witnesses. District then asked to continue the hearing to June 16, 2015, because Student's special education teacher and occupational therapist could not attend on June 9. OAH found good cause: these were essential witnesses that Parents themselves had asked to have available, Parents' departure was an unanticipated change, and Parents could still question both witnesses on June 16.

Why it matters

A parent who walks out of a hearing does not stop it: OAH will take testimony without them. Parents keep the right to come back and question later witnesses, so leaving forfeits only the testimony they miss.

Key authority cited

34 C.F.R. § 300.515(a), (c)
Ed. Code § 56502(f)
Ed. Code § 56505(f)(3)
Cal. Code Regs., tit. 1, § 1020
Cal. Rules of Court, rule 3.1332(c), (d)

Topics

continuance self-represented parents parent walkout essential witness good cause interpreter

Order details

OAH case number: 2015010467
Order date: June 9, 2015
Order type: Scheduling and continuances
Ruling: Student's request to end hearing denied; District's continuance granted
Administrative law judge: Marian H. Tully
Moving party: Parents (request to end hearing); District (request to continue)
Case filed by: District
Education agency: Buena Park School District
Student's counsel: Parent (self-represented)
District's counsel: Carlos Gonzales
Official order: OAH PDF

Orders in this case

February 6, 2015: First continuance granted by agreement; mediation set March 4 and hearing reset to March 16, 2015. (PDF)
March 9, 2015: Order Denying Motion to Consolidate
March 9, 2015: Prehearing order set hearing for March 16, 2015, on District's assessment issues. (PDF)
March 16, 2015: Continuance granted after Student's counsel withdrew; hearing reset to April 1, 2015. (PDF)
March 30, 2015: Joint continuance granted after counsel change; PHC April 24, hearing reset to May 5, 2015. (PDF)
April 28, 2015: Order Denying Motion to Dismiss
May 7, 2015: Continuance granted mid-hearing; resumes June 2, 2015, with District exhibits translated into Romanian for Parent. (PDF)
June 9, 2015: Order Denying Student's Request to End the Due Process Hearing and Granting District's Request to Co
July 2, 2015: Order Denying Challenge to Administrative Law Judge
July 10, 2015: Order Denying Request for Reconsideration
Decision (2015-07-24)

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:

BUENA PARK SCHOOL DISTRICT, OAH Case No. 2015010467 v. ORDER DENYING STUDENT’S

REQUEST TO END THE DUE

PARENT ON BEHALF OF STUDENT. PROCESS HEARING AND

GRANTING DISTRICT’S REQUEST

TO CONTINUE THE DUE PROCESS

HEARING TO JUNE 16, 2015.

The fifth day of the due process hearing in this matter proceeded as scheduled on June 8, 2015, before Administrative Law Judge Marian H. Tully, Office of Administrative Hearings. Attorney Carlos Gonzales represented Buena Park School District. Student was represented by Parents. A Romanian interpreter was provided.

Parents objected to going forward with the due process hearing on the grounds the proceedings were not fair. For the reasons set forth and explained on the record, the ALJ declined to end the due process hearing. Parents informed the ALJ they would not participate in the hearing and left the premises. The hearing proceeded with District’s speech/language assessor and the director of special education, the two witnesses available on June 8, 2015. District requested a continuance to June 16, 2015, to accommodate the schedules of Student’s special education teacher and the occupational therapist that assessed Student because these witnesses were not available on June 9, 2015, the next scheduled day of the hearing.

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, or an 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; 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).)

The interests of justice are served by the requested continuance because Student’s special education teacher and the occupational therapist that assessed Student are essential witnesses. District demonstrated that these two witnesses were not available on June 9, 2015, and these are the only two remaining witnesses District intends to call. Parents’ departure from the due process hearing on June 8, 2015, was an unanticipated change in the status of the case. District was reasonable in scheduling two days for the direct and cross examination of the speech/language assessor and the director of special education because these key witnesses were to be called by both parties. Moreover, on June 2, 2015, Parent’s requested the ALJ to order District to make Student’s special education teacher and the occupational therapist available in Student’s case. Accordingly, District made arrangements for their testimony and Parents are not prejudiced by this continuance given that even though they did not participate on June 8, 2015, they will have an opportunity to question these witnesses on June 16, 2015.

OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is granted. The due process hearing is continued until 9:30 a.m., June 16, 2015.