California OAH special education order · January 24, 2022
Order to Show Cause Why Case Should Not Be Dismissed
OAH Case No. 2021110388 · ALJ Jennifer Kelly
OAH ordered Parent and Aunt to prove they hold Student's educational rights or a conservatorship because Student turned 18 during the case, or the complaint will be dismissed.
Summary
Fremont Unified moved to dismiss, arguing Parent lost standing when Student turned 18 on January 6, 2022, and there was no showing of a conservatorship or a transfer of educational rights. Student's Aunt responded that she was assisting Parent and Student, and that Student would testify at hearing that he authorized her to pursue the case. Under Education Code section 56041.5, OAH found that all parental rights transferred to Student at 18. It ordered Parent and Aunt to file documentation of a rights transfer or conservatorship by January 27, 2022, or the case will be dismissed. OAH set the motion and the standing question for the January 28, 2022 prehearing conference.
Why it matters
When a student turns 18 during a due process case, the parent loses standing unless the student signs a transfer of educational rights or the parent obtains a conservatorship. Families should have that paperwork ready before the 18th birthday. A promise that the student will testify later is not enough.
Key authority cited
- Ed. Code § 56041.5
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.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021110388
ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE DISMISSED
JANUARY 24, 2022
On November 15, 2021, Student’s Parent filed a Request for Due Process Hearing, with the Office of Administrative Hearings, naming Freemont Unified School District.
The Office of Administrative Hearings is called OAH. The complaint alleges Student is represented by Parent and Student’s Aunt.
On January 20, 2022, Freemont Unified School District filed a Motion to Dismiss on the basis Parent lacked standing because Student turned 18 years old on January 6, 2022, and there has been no showing that Student is conserved or that he transferred his educational rights to Parent or Aunt.
On January 21, 2022, Student’s Aunt filed a response to Freemont Unified School District’s Motion to Dismiss. Aunt alleges she is assisting Student’s Parent and Student in this due process matter, and that Student will provide testimony under oath at the due process hearing authorizing Aunt to pursue this matter on Student’s behalf.
Education Code section 56041.5 provides that when an individual with exceptional needs reaches the age of 18, with the exception of an individual who has been determined to be incompetent under state law, the local educational agency shall provide any notice of procedural safeguards required by this part to both the individual and the parents of the individual. All other rights accorded to a parent under this part shall transfer to the individual with exceptional needs. The local educational agency shall notify the individual and the parent of the transfer of rights. As a result, a parent is no longer authorized to file a request for hearing on behalf of a student unless the parent is appointed his or her guardian or the student transfers his or educational rights to the parent or other representative.
Initially when the due process hearing request was filed, Parent held Student’s educational rights and therefore had standing to pursue a claim. However, Parent lost standing to pursue educational claims after Student turned 18 years old. For Parent and Aunt to have standing to pursue a claim on behalf of Student, they must provide documentation verifying that either Student transferred his educational rights to Parent or Aunt or that Parent or Aunt have obtained legal conservatorship over Student.
Accordingly, unless Parent or Aunt provide such proof that they possess Student’s educational rights or hold legal conservatorship over him, OAH will dismiss the complaint.
ORDER
1. Parent and Aunt are ordered to file with OAH and serve Fremont Unified
School District with documentation establishing that they hold Student’s educational rights or legal conservatorship over Student no later than 5:00 pm on January 27, 2022.
2. Failure by Parent or Aunt to produce documentation that they possess
Student’s educational rights or that Student is conserved will result in a dismissal of this matter.
3. Parties are to file their Prehearing Conference statements by 5:00 pm, on
January 24, 2022.
4. OAH will address Fremont Unified School District’s Motion to Dismiss and
whether Parent or Aunt have standing to proceed with the due process complaint at the Prehearing Videoconference on January 28, 2022, at 1:00 pm.
IT IS SO ORDERED.
Jennifer Kelly Administrative Law Judge Office of Administrative Hearings