California OAH special education order · February 3, 2017
Order Denying Student's Request for Continuance
OAH Case No. 2016060728 · ALJ Peter Paul Castillo
OAH denied Parent's third continuance request. Five months had passed since the last continuance, which was granted to obtain conservatorship, and Parent gave no proof a conservatorship request was ever filed.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified must fund three independent evaluations after failing to do a triennial assessment and an adequate transition plan. (2017)
Summary
Parent, on behalf of Student, asked to continue the resumed hearing dates because she had not finished the conservatorship process needed to hold educational rights for Student, who is now over 18. The District did not respond. OAH denied the request. It noted it had already continued the hearing in September 2016 for this exact purpose, five months had passed, and Parent gave no evidence that a conservatorship request was ever made or what its status was. The hearing will resume on February 7, 2017.
Why it matters
When a continuance is granted so a parent can secure educational rights for an adult student, the parent should act promptly and document progress, such as filed petitions and court dates. Without that proof, OAH may refuse more delay.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- 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:
STUDENT, OAH Case No. 2016060728 v. ORDER DENYING STUDENT’S
REQUEST FOR CONTINUANCE
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On January 27, 2017, Mother, on behalf of Student filed, a request to continue the dates in this matter with the Office of Administrative Hearings, based upon Mother not completing the conservatorship process so she may hold Student’s educational rights as Student is over the age of 18. Los Angeles Unified School District did not submit a response, and it is unclear if Mother served a copy of the continuance request on District.
OAH granted Mother’s previous continuance request on July 29, 2016, to give Mother additional time to prepare hearing, and then on September 8, 2016, after the hearing commenced, OAH further continued the matter until February 7 and 8, 2017, to permit Mother obtain conservatorship over Student.1 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).)
Student would turn 18 during the pendency of the hearing and subsequent decision.
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Denied. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. Mother did not establish good cause for a continuance as five months have elapsed since the prior continuance and no evidence was submitted to document that a conservatorship request was ever made and the status of the request.
Therefore, the hearing shall resume on February 7, 2017.
IT IS SO ORDERED.
DATE: February 3, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings