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B.G. v. CRANFORD BD. OF EDUC.

November 18, 1988

B.G., by his Guardian Ad Litem, F.G., Plaintiff,
v.
CRANFORD BOARD OF EDUCATION, Defendant. CRANFORD BOARD OF EDUCATION, Plaintiff, v. B.G., by his Guardian Ad Litem, F.G., Defendant



The opinion of the court was delivered by: WOLIN

 Currently pending before this Court are two related actions arising under the Education for All Handicapped Children Act ("EAHCA"), P.L. 94-142, 20 U.S.C. § 1401 et seq., consolidated for trial and requiring review of an Order issued by an Administrative Law Judge ("ALJ") determining that the subject child ("B.G.") be placed in a year-round residential program approved by the State of New Jersey for emotionally disturbed students. Ancillary to this determination is the issue of reimbursement for prior program placement. The order of the ALJ directing that B.G. be placed in a residential placement is affirmed. The issue of reimbursement is reserved and shall be the subject of a supplementary opinion.

 I. PROCEDURAL HISTORY

 The procedural history of this case is fully documented in two decisions by Edith Klinger, an Administrative Law Judge of the State of New Jersey. Her initial Opinion, dated December 10, 1986, concluded that B.G. should be classified as emotionally disturbed and directed that the Cranford Child Study Team ("CST") consider an appropriate placement for him, including the Youth Behavior Program ("YBP") located in Colorado. At the time of this decision, B.G.'s parents had voluntarily placed him at YBP and the ALJ continued this placement until the CST developed a suitable Individualized Education Program ("IEP") and placement for him. Parental reimbursement for YBP placement was left to the parties to resolve. This issue, which the parties were unable to settle, as well as the issue of counsel fees arising from these proceedings, still remain in dispute.

 The second Opinion, issued on September 30, 1987, ordered that B.G. be placed in a year-round residential program approved by the State of New Jersey for emotionally disturbed students and that the Cranford Board of Education ("Board") pay for B.G.'s associated costs as enumerated in the Opinion. The ALJ further decided that YBP was an inappropriate placement and that therefore B.G.'s father ("F.G.") was not entitled to reimbursement for placing B.G. in that program.

 The two prior ALJ Opinions are incorporated herein by reference, thereby obviating the need to further amplify the procedural history.

 II. FACTUAL BACKGROUND

 B.G., currently 14 years old, was adopted by F.G. and his wife ("the F.G.'s") when he was four and one-half years of age. He is one of three Korean children adopted by the F.G.'s. Two younger female children complete the family unit. In sequence of adoption B.G. is the middle child.

 When adopted, B.G. showed signs that he had previously been physically abused, malnourished and abandoned in his native Korea. Initial episodes of screaming and temper tantrums escalated into angry, hostile and provocative acts as he advanced in age. Early on, the F.G.'s noticed that he was distrustful, unaffectionate, uncommunicative and unwilling to accept responsibility for acts of negative conduct. Frequently, he lied about occurrences that ultimately were proven to have been committed by him. Disobedience to his mother, hoarding of food in his room, theft of money from his father, harassment of his sisters and the setting of minor fires when angry depict the type of conduct that undermined the peace and tranquility of the F.G. home.

 His school adjustment was also fraught with difficult circumstances. Learning ability was seriously impeded by easy distraction and a short attention span. He constantly had to be refocused to his assigned task. Peer pressure and troubled peer relationships caused B.G. to frequently engage in disruptive behavior through the hitting, tripping or kicking of another child. Notwithstanding a succession of educational placements in both the public and private sector, B.G.'s school behavior profile remained the same.

 When B.G. was in the fifth grade at St. Michael's, a parochial school, F.G. determined that he was not learning and sometime in October 1985 transferred him, against B.G.'s wishes, to Cranford's Brookside School. His fifth grade teacher, Greta Sobelson, after a period of observation, suggested that the F.G.'s seek the assistance of a counselor. They contacted Dr. Leonard Volenski, a certified school psychologist and a licensed clinical psychologist. From December 1985 until June 1986 Volenski saw B.G. on a weekly basis. Volenski advised the F.G.'s that in his opinion B.G.'s school problems were related to underlying emotional problems. He found B.G. to be a very depressed child who had experienced a great deal of rejection in his life and who suffered from an attachment disorder stemming from B.G.'s abandonment by his natural parents. During his testimony before Judge Klinger on October 23, 1986, Dr. Volenski characterized B.G. as an emotionally disturbed child with a primary diagnosis of an intentional deficit disorder and a secondary diagnosis of a developmental disorder tracing back to B.G.'s early childhood. He further testified that B.G.'s emotional problems exacerbated the perceptual problems associated with his inadequate attention span. Volenski concluded that the most appropriate classification for B.G. was Emotionally Disturbed ("E.D.") and that the least restrictive program would be a residential setting. This opinion was bottomed on the theory that the selected program must be all-inclusive, thereby encompassing B.G.'s living needs and addressing his emotional and perceptual problems. Volenski rejected a day setting program because "I think B.G.'s emotional problems will tend to interfere with his learning process until he finds a setting that deals with the emotional problem."

 Despite his opinion as to the need for a residential placement, Volenski recommended that F.G. place B.G. with the Youth Behavior Program in Colorado, since it was the only program of which he was aware that addressed attachment disorders of Korean children. Since YBP, in Volenski's opinion, dealt with both the home and school environment, he considered it as "the most appropriate placement." Volenski was particularly impressed with its therapeutic approach through trained surrogate parents, utilization of a contained classroom for emotionally disturbed children, outside therapy, and inclusion of the F.G.'s through a parent training program. YBP's establishment of limited and long-term goals seemed to Volenski a reasonable approach and, together with the other enumerated facets of the program, was the reason he recommended it to the F.G.'s.

 Volenski made two other critical observations in his testimony: first, that B.G.'s educational and emotional needs were inseparable in terms of program placement; and second, that the CST's recommendation that B.G. be classified Perceptually Impaired ("P.I.") was inappropriate since it ignored B.G.'s emotional disturbance.

 During Volenski's therapeutic intervention with B.G., he was alerted to certain death wish ideation that led him to believe that B.G. was potentially suicidal. This focus, together with B.G.'s anger, depression and withdrawal, obliged Volenski to refer B.G. for a psychiatric evaluation in order to determine possible psychiatric factors relating to B.G.'s behavioral problems.

 On March 24, 1986, Dr. Felicia Oliver-Smith, a duly licensed psychiatrist, interviewed B.G. Her psychiatric evaluation confirmed for the F.G.'s the earlier observations of Volenski. Oliver-Smith concluded that B.G. "appears to be a multi-handicapped individual with neurological dysfunction, emotional disturbance and social maladjustment." She recommended a residential placement with family and individual therapy due to the unremitting difficulties between B.G. and his parents, particularly his mother. As an interim plan, Oliver-Smith suggested Woodbridge Child Diagnostic Center in order to get a better diagnostic picture of B.G. outside the home. Through this type of evaluation, she reasoned, the most appropriate placement could be determined for him.

 On February 27, 1986, while Volenski was treating B.G., F.G. requested, in writing, a CST evaluation. At that time B.G. was at the Brookside School in a normal fifth grade placement. His assigned teacher was Sobelson. The evaluation commenced in March 1986 though Sobelson, according to the school principal, thought it premature.

 A CST evaluation is comprised of three components representing various disciplines integral to the educational process. They include the social, learning disability and psychological aspects of a student's profile. Each discipline is represented by a certified trained professional who prepares a report. Subsequent to the completion of their reports they meet ("staffing") and discuss their findings preliminary to the preparation of a conference report containing a classification and an IEP. A CST conference with the parents follows the report preparation.

 B.G.'s Child Study Team consisted of Bridget DePinto, a School Social Worker, Ethel White, a Learning Disability Teacher Consultant ("LDTC"), and Robert Hegedus, a Certified School Psychologist. DePinto was in charge of preparing the CST report. Her social evaluation consisted of a home interview, two observations of B.G. in class, a conference with Sobelson and a review of outside consultant reports. At the home interview on March 12, 1986, the F.G.'s demonstrated great concern as to B.G.'s home behavior and its impact on existing family relationships. Mrs. F.G. was distraught and confided that she had done everything she could do. Though the negative characteristics of B.G.'s personality dominated the interview, F.G. did stress that "He's a nice boy. He's not mean, he doesn't do mean things to other boys or other girls." *fn1"

 In May 1986, White tested B.G., spoke with Sobelson and also spoke with B.G.'s comp-ed teacher. White's duty as the LDTC is to determine how a child functions in a classroom and to evaluate the child's overall level of classroom performance. *fn2" Hegedus's input consisted of performing other tests and a comp-ed observation and holding discussions with the school's psychiatric consultant, Samuel Levine, M.D.

 Meanwhile, as other reports were being prepared, Sobelson, in two reports dated February 28, 1986 and April 11, 1986, advised the CST that B.G.'s personal and social behavior in class was very poor. He experienced problems in social interaction with his peers and was difficult to deal with. *fn3" Her April report characterized B.G.'s personal and social behavior as " very, very poor." (emphasis added).

 When DePinto summoned the CST for staffing on May 19, 1986, the information available consisted of reports prepared by DePinto, White, Hegedus, Dr. Vicci *fn4" (an optometrist), the outside consultant reports of Volenski, Oliver-Smith and Dr. Gold, *fn5" and the written observations of Sobelson. Additionally, Hegedus had spoken to both Levine and Volenski. Present were the CST members, Sobelson and the school principal, Mr. Mandel. After a review of all of these materials, the CST concluded that a classification of Perceptually Impaired was appropriate. Each member of the CST testified that prior to the staffing, none of them had a preconceived notion as to the proper educational handicap classification of B.G. DePinto said all reports were considered and evaluated as to their relevance in the educational setting. In discussing the reports of Volenski, Oliver-Smith and Gold, she commented that the behavior in those reports was not the behavior the CST observed in the classroom setting. Thus, an E.D. classification was determined to be inappropriate. Hegedus, in his testimony, further elaborated that the Volenski and Oliver-Smith reports followed a medical model and did not focus sufficiently on B.G. in the classroom setting. He was satisfied, as a Certified School Psychologist, that such reports dealt with emotional difficulty in the home environment and had no impact in the educational setting. In his opinion, a P.I. classification was conducive to meeting B.G.'s educational needs and a proposed YBP placement was therefore not in B.G.'s best interest.

 After determining the P.I. classification, an IEP was developed for B.G. *fn6" It consisted of the following:

 1. Transfer to Orange Avenue School.

 2. Assignment to a self-contained classroom staffed by a certified teacher of the handicapped, and a teacher's aide. *fn7"

 3. Individualized instruction and mainstreaming as to non-academic curricula.

 4. Participation in a school swimming program.

 With the classification decided and the IEP developed, DePinto proceeded to have the conference report and IEP finalized in preparation for a meeting with the F.G.'s.

 Volenski attended the conference with the F.G.'s. Much to their collective surprise, B.G. was classified as P.I. The F.G.'s were aghast and after listening, left in "absolute, total, sheer disgust" because F.G.'s worst fears had been realized. *fn9" He characterized the CST conference as an "absolute, positive charade" and attributed the recommendation to "nothing more than a school board fearful that they were going to have to pay for a kid to go to a special treatment center and they didn't want to fund it."

 The F.G.'s did not sign the IEP as this would have indicated acceptance of the classification and program recommended by the CST. Each left with a copy of it with the understanding they would be provided an opportunity to study the report and reconvene the CST after digesting it. On June 6, 1986 F.G. advised the Child Study Team by letter that he refused to consent to the proposed IEP. F.G. viewed any further contact or effort to request a different placement as a "waste of time." The F.G.'s made no attempt to contact William Cashman, the school district Director of Special Services, nor did they request a CST follow-up meeting.

 In advance of the CST meeting in late May, the F.G.'s had been gathering literature on potential placements for B.G. By chance circumstance, F.G.'s brother called his attention to YBP, a program located in Colorado that specialized in attachment disorders. F.G. received the literature and shared it with both Volenski and Hegedus. Volenski recommended it. Hegedus thought it was not in B.G.'s best interest. By the first week in June, the F.G.'s had determined to place B.G. in YBP if a space became available. *fn10" F.G. was resigned to paying B.G.'s monthly costs of approximately $ 2,000.00 but hoped to be eventually reimbursed if he were successful in future litigation pertaining to B.G.'s status as E.D. YBP was not then, and is not now, on the approved list maintained by the New Jersey Department of Education.

 YBP notified F.G. that there was a potential opening for placement of B.G. On June 15, 1986, F.G. and his family traveled to Evergreen, Colorado. B.G. was conditionally accepted subject to two weeks of family therapy in advance of formal acceptance. At the end of June, B.G. was formally accepted into YBP and the F.G.'s returned home.

 On June 10, 1986, the Cranford Board of Education requested a due process hearing under N.J.A.C. 6:28-2.7 because of the refusal by the F.G.'s to consent to the initial placement. Thereafter, the Department of Education held a settlement conference on July 10, 1986, which was unsuccessful. September 22, 1986 was then assigned as a peremptory hearing date. On request of the Commissioner of Education, an ALJ was assigned to hear the matter of classification and appropriate placement. Hearings were held on September 22, 23 and 24, October 23 and November 20, 1986. The ALJ rendered her decision on December 10, 1986 and found that B.G. should be classified as E.D. Since the CST had mistakenly classified B.G. as P.I. and had not focused on his placement in a program placement appropriate for E.D., the ALJ ordered the CST to consider appropriate placements for B.G., including YBP. *fn11" She ordered B.G.'s continued placement at YBP until the Child Study Team had the opportunity to develop a suitable IEP and placement for him. The ALJ did not retain jurisdiction. *fn12" Her decision was final pursuant to 20 U.S.C.A. § 1415(e) and neither party appealed.

 While the due process hearing was ongoing and after its conclusion, B.G. was participating in YBP and also attending the sixth grade in the Jefferson County Public School system ("Jefferson"). *fn13" At Jefferson he did not receive special education service assistance; he was "mainstreamed" *fn14" and unclassified. However, individual therapy and group therapy were provided to B.G. by the school psychologist on a weekly basis. Some confusion exists as to whether B.G. was in fact classified as Emotionally and Behaviorally Disturbed ("EBD") as well as the basis for his receiving school psychological services as an unclassified student. Documentary evidence supplied by Jefferson appears to support the conclusion that B.G. was in fact unclassified and not enrolled as a special education student.

 During January 1987, Cashman and Hegedus, in an effort to comply with the ALJ's order to develop a suitable IEP and placement for B.G., contacted Jefferson. Each learned that B.G. was being mainstreamed and was not receiving special education service assistance. They were particularly surprised, in light of their prior IEP recommendation, that he was not receiving self-contained classroom assistance. Hegedus also sought information from a program called SCRIPT, which references all day and residential placements throughout New Jersey and surrounding states. *fn15" Also, Cashman had received a letter from Eileen Ware, an employee of the State Department of Education, dated February 10, 1987, advising that YBP was not on the Department's approved list and that in her opinion YBP was not an educational program. Accordingly, the Youth Behavior Program was not considered by the CST as an appropriate placement for B.G., despite the ALJ's order.

 The CST held another preliminary planning staffing conference, considering the following information: reports from B.G.'s previous staffing (when he was classified as P.I.), B.G.'s current status in Jefferson, Ware's letter and Hegedus's SCRIPT information. There had been no updated contact and retesting of B.G., no further contact with the F.G.'s, and no current contact with YBP officials. Also, Jefferson's IEP and B.G.'s current report card were missing.

 At the staffing conference the CST concluded that the most appropriate educational program for B.G. in the least restrictive environment would be one that retained him in the ...


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