California OAH special education order · May 2, 2017
Order Following Prehearing Conference, Continuing the Prehearing Conference and Hearing
OAH Case No. 2017021090 · ALJ Clifford H. Woosley
OAH granted Parent's request for a short continuance over District's objection because Student's non-attorney advocate abandoned the family and Parents were never served District's prehearing materials.
This case went to decision
Upland Unified School District v. Student: Upland Unified may reassess a fourth grader without parental consent; parent cannot limit test choice or timing. (2017)
Summary
District filed for due process to get an order allowing it to assess Student without parental consent. At the prehearing conference, Student's advocate could not be reached, and the ALJ learned that District had served its prehearing statement, witness list, and evidence only on the advocate, not on Parents. Mother asked for time to find an attorney or advocate. District opposed, citing the need to assess Student before the school year ends, but the ALJ found good cause because the case had never been continued and the advocate had stopped communicating with Parents. Dates were reset to a May 22, 2017 prehearing conference and a May 31, 2017 hearing, and Mother was warned that another continuance would be disfavored.
Why it matters
Families whose advocate disappears before hearing may get a short continuance, especially when they were not personally served with hearing materials. They must move quickly to find new help, because a second continuance is unlikely. Districts should serve parents directly when a non-attorney advocate is involved.
People named in the order
- Christopher Russell, Student's non-attorney advocate
- Maryam Rastegar, District's attorney
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:
UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2017021090 v. ORDER FOLLOWING PREHEARING
CONFERENCE, CONTINUING THE
PARENT ON BEHALF OF STUDENT. PREHEARING CONFERENCE AND
HEARING
On May 1, 2017, a telephonic prehearing conference was held before Administrative Law Judge Clifford H. Woosley, Office of Administrative Hearings. Maryam Rastegar, attorney at law, appeared on behalf of Upland Unified School District. Parent appeared on behalf of Student. Attempts to reach and include Student’s advocate Christopher Russell were unsuccessful.
Based upon discussion with the parties, the ALJ issues the following order:
Student’s Request for Continuance District initially filed its complaint on February 23, 2017. On March 9, 2017, District filed a motion to amend its complaint. District’s attorney Ms. Rastegar and Mother telephonically appeared at the prehearing conference of March 13, 2017. Parents and Student were unrepresented and were not being advised by an advocate.
Judge Woosley heard District’s motion to amend at the March 13, 2017 prehearing conference. Mother did not oppose the motion. The motion was granted, the amended complaint was deemed filed, and OAH issued a new scheduling order, setting the prehearing conference for May 1, 2017, and hearing for May 9, 2017.
On March 24, 2017, advocate Christopher Russell filed and served a notice that he had been retained to assist in all educational matters, including this due process, for Student.
Mr. Russell stated that he was not an attorney and did not legally represent Parents.
Therefore, Parents were to be served with copies of all correspondence related to this matter.
Accordingly, OAH has included Parents on its service list with their advocate, Mr. Russell.
Judge Woosley convened the prehearing conference on May 1, 2017, by telephoning Ms. Rastegar, Mr. Russell, and Mother, who had asked to be included. However, Mr. Russell did not answer his phone and his voicemail did not accept messages because it was not activated. Mother stated that she herself had been unable to get in touch with Mr.
Russell for two weeks.
While proceeding with the PHC, Judge Woosley determined that Parents had not been served with the District’s prehearing conference statement, list of witness, and documentary evidence. District acknowledged serving the advocate, only. Mother was unable to respond to Judge Woosley’s questions regarding witnesses and documents for hearing. Further, Mother stated that she would have to find further assistance, because Mr. Russell had abandoned them. Mother asked for a continuance to find and an attorney or advocate.
District opposed, stating that the matter was initially filed in February 2017 and that a continuance would likely delay a hearing until next school year. District’s final day of school is June 8, 2017. District emphasized the need of assessing Student. District cannot assess because Parents have not provided consent, which is why District filed for due process to obtain an order allowing assessment, without parental consent.
However, this matter has never been continued. Parents believed they had obtained the assistance of Mr. Russell, with whom Parents can no longer communicate, who failed to file a prehearing conference statement on Student’s behalf, and who was unavailable for the May 1, 2017 prehearing conference. Finally, Mother became increasingly uneasy as she heard what was involved in preparing for the hearing, such as the exchange of witness lists and copies of documentary evidence. Accordingly, good cause exists for a short continuance to enable Parents to find legal representation or an advocate.
In granting the continuance, Mother was cautioned that another continuance would be disfavored and that Parents needed to immediately seek an advocate or attorney.
All dates are vacated. This matter is set as follows:
Prehearing Conference: May 22, 2017 at 1:00 PM Due Process Hearing: May 31 and June 1, 2017, at 9:30 AM the first day, and 9:00 AM each hearing day thereafter, continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. The hearing shall take place at District’s offices, located at 390 N. Euclid, Upland, California 91786.
IT IS SO ORDERED.
DATE: May 02, 2017
CLIFFORD H. WOOSLEY
Administrative Law Judge Office of Administrative Hearings