California OAH special education order · April 9, 2019
Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing
OAH Case No. 2018110712 · ALJ Marian H. Tully
OAH granted Parent's request to continue the hearing about one month over Glendora's opposition, finding good cause based on a serious family medical emergency.
This case went to decision
Glendora Unified School District v. Student: Glendora Unified's IEP offers of special education core classes and later home instruction provided a FAPE in the least restrictive environment. (2019)
Summary
Parent asked to continue the hearing in Glendora's case because of a serious family medical emergency that required her to care for a relative. Glendora opposed. It argued the request was untimely, that a delay near the end of the school year would hurt Glendora, and that Student would be harmed because Student had not been in school. OAH found the request timely under the circumstances and found good cause for an approximately one-month continuance. It reset the prehearing conference to May 15, 2019, and the hearing to May 21–23, 2019.
Why it matters
Continuances are disfavored, but OAH will grant a short delay for a genuine, unexpected family emergency even when the district objects. Parents should promptly explain the emergency and ask for only as much time as they need.
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:
GLENDORA UNIFIED SCHOOL OAH Case No. 2018110712
DISTRICT,
ORDER GRANTING REQUEST FOR
v. CONTINUANCE AND SETTING
PREHEARING CONFERENCE AND
PARENT ON BEHALF OF STUDENT. DUE PROCESS HEARING
On April 9, 2019, Parent on behalf of Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon a very serious family emergency involving her father’s health. Parent requested a short continuance to care for her father until another family member was available. Glendora opposed the request arguing the request was untimely, the continuance would prejudice Glendora because the dates requested are near the end of the school year and the continuance would prejudice Student because Student has not been in school.
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. Glendora filed an amended complaint on February 4, 2019. On February 22, 2019, the matter was continued to April 16, 17, and 18, 2019, dates agreed upon by the parties during a prehearing conference. Student has demonstrated the request is timely under the circumstances and that there is good cause to continue the hearing dates for approximately one month.
The request is granted. All dates are vacated. This matter will be set as follows:
Prehearing Conference: May 15, 2019, at 1:00 p.m.
Due Process Hearing: May 21, 22 and 23, 2019, and continuing day to day, as needed at the discretion of the Administrative Law Judge. The hearing will begin at 9:30 a.m. the first day and at 9:00 a.m. all other days unless otherwise ordered.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
IT IS SO ORDERED.
DATE: April 09, 2019
MARIAN H. TULLY
Presiding Administrative Law Judge Office of Administrative Hearings