DA obo DA v Jersey City BOE | Case 07880-18 | 2019-01-23

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 07880-18 AGENCY REF. NO. 2018-27876 D.A. ON BEHALF OF D.A., Petitioner(s), v. JERSEY CITY BOARD OF EDUCATION, Respondent. __________________________________ D.A., petitioner, pro se Cherie Adams, Esq. on behalf of respondent (Adams, Gutierrez & Lattibourdere, LLC) Record Closed: January 22, 2019 Decided: January 23, 2019 BEFORE KIMBERLY A. MOSS, ALJ: Petitioner, D.A., filed a due process petition on behalf of her minor child D.A., requesting respondent (Respondent or Board) provide a Functional Behavioral Assessment. Respondent denied the request and the matter was transmitted to the Office of Administrative Law (OAL) on June 4, 2018. A telephone prehearing was conducted wherein the parties agreed on a hearing date of November 14, 2018. On the date of the hearing, petitioner failed to appear. An additional hearing date was

OAL DKT. NO. EDS 07880-18 2 scheduled for March 13, 2019. Re spondent filed a motion for summary decision on December 14, 2018. Respondent filed an amended certification of an January 17, 2019. On January 22, 2019, petitioner sent an email again requesting an FBA for D.A. FACTUAL DISCUSSION Having reviewed the r ecord in its entirety, I FIND the following to be the FACTS in this matter: D.A. is a six -year-old student eligible to receive special education and related services under the classification category of autistic. She is currently enrolled in the District’s Primary Applied Behavioral Analysis (ABA) class. The due process petition requested an FBA. The petitioner does not state why petitioner believes it is necessary that D.A. have a FBA done. The petition does not state that D.A. has any type of behavioral issues. Petitioner has not provided any basis for the need for a FBA for D.A. Petitioner did not appear on the November 14, 2018 hearing. Further, petitioner has not contacted the undersigned to explain why she failed to appear for the hearing. Petitioner’s response to Respondent’s motion was to state D.A. should have a FBA. She provided no reason as to why D.A. needed an FBA. LEGAL DISCUSSION AND CONCLUSIONS Pursuant to N.J.A.C. 1:1 -12.5(b), a summary decision “may be rendered if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law.” This rule is substantially similar to the summary judgment rule embodied in the New Jersey Court Rules, R. 4:46 -2. See Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74 (1954). In connection therewith, all inferences of doubt are drawn against the movant and in favor of the par ty against whom the motion is directed. Id. at 75. In Brill v. Guardian Life Insurance Co .,

OAL DKT. NO. EDS 07880-18 3 142 N.J. 520 (1995), the New Jersey Supreme Court addressed the appropriate test to be employed in determining the motion: [A] determination whether there exists a ‘genuine issue’ of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non -moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. The ‘judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial’. [Brill, supra, 142 N.J. at 540 (citations omitted).] In this matter, petitioner failed to appear for the November 14, 2018 hearing. Her petition for due process requested a FBA for minor child D.A. Petitioner has provided no evidence as to why a FBA is necess ary for her daughter. Petitioner has abandoned the prosecution of this case. I CONCLUDE that as a result of petitioner failing to appear for the hearing and providing no evidence or information of any type to substantiate the need for D.A. to have a FBA, petitioner has abandoned the prosecution of this case. Accordingly, this matter is no longer a contested case before the OAL. It is therefore ORDERED that respondent’s motion for Summary Decision is hereby GRANTED. It is FURTHER ORDERED that this m atter be and is hereby DISMISSED WITH PREJUDICE.

OAL DKT. NO. EDS 07880-18 4 This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2017) and is appealable by filing a complaint and bringing a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516 (2017). If the parent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern sh ould be communicated in writing to the Director, Office of Special Education Programs. January 23, 2019 DATE KIMBERLY A. MOSS, ALJ Date Received at Agency January 23, 2019 Date Mailed to Parties: January 23, 2019 ljb