California OAH special education order · February 6, 2020
Order Denying Request for Reconsideration
OAH Case No. 2020010545 · ALJ Jennifer Kelly
OAH denied Parent's second reconsideration request and kept the case dismissed because filing a conservatorship petition does not give Parent the educational rights of a 21-year-old adult Student.
Summary
After OAH dismissed the case and denied a first reconsideration request, Parent filed a motion to present evidence and proceed with hearing or continue it, which OAH treated as a new reconsideration motion. Parent attached a newly filed probate conservatorship petition, with a hearing set for September 29, 2020. OAH found no new facts or law justifying reconsideration. Student is 21 and had not transferred his educational rights to Parent or been found incompetent under state law, and merely filing a conservatorship petition does not convey those rights. The motion was denied and the case remains dismissed.
Why it matters
Once a student turns 18, a parent cannot file for due process on the student's behalf unless the student has transferred educational rights or a court has actually established conservatorship. A pending petition is not enough, so families should start this process well before they need to file.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- Ed. Code, § 56041.5
- Prob. Code, § 1800 et seq.
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
FEBRUARY 06, 2020
On February 3, 2020, the undersigned Administrative Law Judge issued an Order Denying Parent’s Request for Reconsideration and Order of Dismissal. On February 6, 2020, Parent filed a document titled, “Motion to Present Evidence and Request to Proceed with Hearing or for a Continuance.” OAH will treat Parent’s motion as a new motion for reconsideration. The Office of Administrative Hearings did not receive a response from Anaheim Union High School District.
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
Parent alleges that she has filed a petition for her appointment as probate conservator over Student. In support of her motion, Parent attaches a copy of a petition filed with the Superior Court for the County of Orange on February 4, 2020, Case Number 01129237. Through the petition, Parent purportedly seeks conservatorship over Student. The hearing date on the petition is scheduled for September 29, 2020.
Pursuant to the terms of the petition, Student has the right to appear at the hearing and oppose the petition, and the right to legal representation.
Parent offers no new facts, circumstances or law to support reconsideration.
Parent has not established either that Student, who is 21-years of age, transferred his educational rights to Parent, nor that Student has been determined incompetent under state law as required by Education Code section 56041.5. The evidence submitted by Parent shows only that Parent has commenced a conservatorship proceeding, nearly three years after OAH informed Parent of this requirement in OAH Case Number 2016100629.
The mere filing of a conservatorship petition does not convey Student’s educational rights to Parent. Parent has not proven establishment of conservatorship over Student in accordance with the provisions of Probate Code Section 1800, et al. Accordingly, Parent has presented no new or different facts, circumstances, or law justifying reconsideration of OAH’s February 3, 2020 order. Accordingly, Parent’s motion is denied.
ORDER
Parent has not established the February 3, 2020 Order Denying Parent’s Request for Reconsideration and Order of Dismissal should be reconsidered. The motion for reconsideration is denied. The case is hereby dismissed.
IT IS SO ORDERED.
Jennifer Kelly Administrative Law Judge Office of Administrative Hearings