California OAH special education order · February 3, 2020
Order Denying Request for Reconsideration and Order of Dismissal
OAH Case No. 2020010545 · ALJ Jennifer Kelly
OAH denied reconsideration and dismissed the case because Parent never proved she holds the educational rights of Student, an adult over 18, through a valid transfer of rights or a conservatorship.
Summary
OAH had ordered Parent to show by February 7, 2020 that she holds the educational rights of Student, who is over 18, or the case would be dismissed. Parent's spouse, a non-attorney advocate whom OAH had already found not legally authorized to represent Parent or Student, objected and asked for reconsideration. He argued that he is a parent figure married to Parent and that a conservatorship was in progress. OAH found no new facts or law, noting the power of attorney already submitted was incomplete and not notarized, so it denied reconsideration and dismissed the case.
Why it matters
Once a student turns 18, educational rights pass to the student. A parent who wants to file for an adult student needs a properly completed, notarized transfer of rights or a court conservatorship already in place, not one still pending. Family relationship alone does not give a parent or step-parent standing, and a non-attorney advocate cannot represent the family.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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:
PARENT ON BEHALF OF STUDENT,
v.
ANAHEIM UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2020010545
ORDER DENYING REQUEST FOR RECONSIDERATION AND
ORDER OF DISMISSAL
FEBRUARY 03, 2020
On January 29, 2020, the undersigned Administrative Law Judge issued an Order to Show Cause Regarding Dismissal. The order required Parent to serve OAH and Anaheim Union High School District with documentation that she possesses Student’s educational rights no later than February 7, 2020, at 5:00 PM, and that failure to do so would result in dismissal of this matter. The order further stated that Parent on behalf of Student shall be the named petitioner in this action, and confirmed that Advocate Ricardo Rodriguez is not legally authorized to represent Parent or Student in this matter.
On February 2, 2020, Advocate Ricardo Rodriguez filed an Objection to OAH Order to Show Cause for Dismissal dated 1-29-2020 and Request for Reconsideration.
The Office of Administrative Hearings, referred to as OAH, did not receive a response from Anaheim Union High School District. OAH will treat the Objection to OAH’s Order to Show Cause for Dismissal as Parent’s response to OAH’s January 29, 2020 order.
APPLICABLE LAW
The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time, generally within ten days. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
DISCUSSION
Advocate Ricardo Rodriguez offers no new facts, circumstances or law. to support reconsideration. He argues that he is a parent figure to Student and is married to Parent. However, these facts, even if true, do not establish that Parent or Mr. Rodriguez hold Student’s educational rights. No additional documents were submitted showing a transfer by Student of his educational rights to Parent or Mr. Rodriguez, and the California General Durable Power of Attorney previously submitted was not a complete document nor was it notarized as required by the express terms of the document.
Additionally, Mr. Rodriguez states in the motion for reconsideration that Parent is in the process of obtaining an order granting conservatorship from the Orange County Superior Court. Because Parent has failed to establish that she currently holds a transfer of Student’s educational rights or a conservatorship over Student, who is over the age of eighteen, neither Parent or Mr. Rodriguez have the right to represent Student in this proceeding. This contention is not persuasive since Mr. Rodriguez and Parent have been aware of the legal requirements to represent Student in this matter since the March 16, 2017 Order to Show Cause, Student’s Educational Rights, OAH Case Number 2016100629.
ORDER
1. Parent on behalf of Student has not established the January 29, 2020 Order
should be reconsidered. The motion for reconsideration is denied.
2. The case is hereby dismissed.
IT IS SO ORDERED.
Jennifer Kelly Administrative Law Judge Office of Administrative Hearings