California OAH special education order · February 1, 2017
Order Denying Student's Father's Request for Continuance
OAH Case No. 2016090101 · ALJ Penelope S. Pahl
OAH denied a non-custodial Father's request to continue the hearing so he could take part. Superior Court custody orders limited his school role to getting records, and Mother held sole legal custody.
This case went to decision
Newport-Mesa Unified School District v. Student: Newport-Mesa Unified must fund an independent evaluation because its assessment was flawed and it shut Mother out of the review meeting. (2017)
Summary
Student's divorced Father asked OAH to continue the due process hearing, saying he had not been given notice of it. Mother, who has sole legal custody, opposed and argued that Father had no legal right to take part. After a telephonic hearing with sworn testimony from both parents, the ALJ reviewed the Orange County Superior Court orders and hearing transcript. Those showed that Father's contact with the school was limited to accessing records, and that he was not to comment on or try to influence Student's education. Because nothing changed that limit, OAH denied the continuance.
Why it matters
A parent's right to take part in a special education due process hearing depends on what family court custody orders actually allow. A parent whose rights are limited to accessing records cannot use lack of notice to delay the hearing.
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
People named in the order
- Maureen Cottrell, Special Education Director, Newport-Mesa
- Salvador Sarmiento, Orange County Superior Court judge who issued custody orders
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:
NEWPORT-MESA UNIFIED SCHOOL OAH Case No. 2016090101
DISTRICT,
ORDER DENYING STUDENT’S
v. FATHER’S REQUEST FOR
CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On January 30, 2017, Student’s Father telephoned the Special Education Division of the Office of Administrative Hearings to request a continuance of the hearing dates in this matter, based upon failure to provide notice to him of the hearing. Father and Mother of Student are divorced and custody orders are in place. A restraining order limiting Father’s access to the Student’s Mother is in place until February 27, 2018. Pursuant to an order from the Division Presiding Judge, a hearing was scheduled for January 31, 2017 at 9:30 to consider Father’s request. Father was ordered to appear telephonically. Father submitted a declaration on January 31, 2017, detailing the basis for his request. Student’s Mother submitted documents on January 31, 2017 opposing Father’s motion on the grounds that he had no legal right to participate in the hearing. Mother also appeared telephonically at the hearing which proceeded as scheduled on January 31, 2017. Also present during the hearing was counsel for Newport-Mesa and Maureen Cottrell, Special Education Director for Newport-Mesa.
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 reviews a request for continuance to determine whether good cause exists. The undersigned has considered all relevant facts and circumstances including testimony taken under oath from both parents as well as orders from Orange County Superior Court dated September 1, 2015 and March 11, 2016, and the transcript of the hearing preceding that Court’s order of September 1, 2015 establishing Father’s rights in relationship to the children.
In his declaration, Father asserts that he is entitled by court order to “complete involvement in the educational direction of our minor children” while acknowledging the Orange County Superior Court’s order granting Mother sole legal custody. Review of the transcript of the September 1, 2015, custody hearing and the order following it indicates a more restricted role was allowed by the court. The September 1, 2015 order specifies that Father shall have access to records and that communication with the school shall be limited to accessing school records. Judge Salvador Sarmiento emphasized this restriction on the record as demonstrated by the hearing transcript and in his written notes on the September 1, 2015 order which stress the sole purpose of the order is to obtain records. Judge Sarmiento specifically states that Student’s Father is not to “comment, discuss or attempt to influence”
when he communicates with the school to obtain records. (Transcript of September 1, 2015 hearing, P.9, L. 7-10). While Judge Sarmiento lifted the restraining order pertaining to visitation between the Student and her father on March 11, 2016, nowhere in that order was the father’s role in relation to Student’s educational rights amended.
Based on the evidence, Student’s Father’s request for a continuance of the hearing to allow his participation is Denied. .
IT IS SO ORDERED.
DATE: February 1, 2017
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings