California OAH special education order · March 19, 2019
Order Denying Student's Request for Continuance
OAH Case No. 2019020293 · ALJ Peter Paul Castillo
OAH denied Student's opposed request to continue the hearing. Student's long-term illness began before Parent agreed to the current dates, and Parent did not show she was unable to attend.
This case went to decision
Capistrano Unified School District v. Student: Capistrano Unified may place a nonverbal ninth grader with autism in the county Special Schools program without parental consent. (2019)
Summary
The day before the scheduled hearing, Parent on behalf of Student asked OAH to continue the hearing because Student had a long-term fever. Capistrano opposed, pointing out that OAH had already granted a joint continuance and that the district needed a quick ruling on whether its offer of a free appropriate public education could be implemented over Parent's objection. OAH denied the request and confirmed the March 20, 2019, hearing date. Student's illness started before Parent agreed to the current dates, which suggested Parent believed she could go forward despite it, and Parent did not show that caring for Student kept her from attending.
Why it matters
A family member's illness is not automatic good cause for a continuance. Parents should show how the illness actually prevents them from taking part in the hearing, and should raise known problems before agreeing to hearing dates.
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(c)
- Cal. Rules of Court, rule 3.1332(d)
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:
CAPISTRANO UNIFIED SCHOOL OAH Case No. 2019020293
DISTRICT,
ORDER DENYING STUDENT’S
v. REQUEST FOR CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On February 19, 2019, the parties filed a joint request to continue the dates in this matter with the Office of Administrative Hearings, based upon the possibility that an upcoming Individualized Education Program team meeting would resolve the matter. OAH granted the continuance request on February 20. 2019, setting a prehearing conference for March 11, 2019, and hearing to commence on March 19, 2019, which OAH subsequently continued to March 20, 2019.
On March 18, 2019, Parent on behalf of Student filed with OAH a request to continue the dates in this matter based upon Student having a long term fever. On March 19, 2019, Capistrano Unified School District filed an opposition as OAH has already granted a continuance and the need to quickly determine whether Capistrano has offered Student a free appropriate public education that may be implemented over Parental objection.
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. The request is:
Denied. All prehearing conference and hearing dates are confirmed and shall proceed as calendared on March 20, 2019, at 9:30 a.m. Student did not establish good cause for a continuance as Student’s illness of unknown origin preceded Parent’s agreement of the current hearing dates, which indicates that Parent believed that she could proceed to hearing on the given dates despite Student’s long term illness. Additionally, Parent did not establish that she is incapable of attending the hearing to care for Student, just that Student has a long term illness.
IT IS SO ORDERED.
DATE: March 19, 2019
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings