Elizabeth BOE v DF obo MF | Case 01330-22 | 2022-02-24

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 01330-22 AGY REF NO. 2022/33913 ELIZABETH CITY BOARD OF EDUCATION, Petitioner, v. D.F. ON BEHALF OF M.F., Respondent ____________________________________ Richard P. Flaum , Esq., for Petitioner (DiFrancesco, Bateman, Coley , Yospin, Kunzman, Davis, Lehrer & Flaum, attorneys) D.F., parent of M.F., Respondent, pro se Record Closed: February 24, 2022 Decided: February 24, 2022 BEFORE THOMAS R. BETANCOURT, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a due process petition and motion for e mergent relief with the Office of Special Education (OSE ) in the New Jersey Department of Education (DOE).

OAL DKT. NO. EDS 01330-22 - 2 - The contested matter was t ransferred to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on February 18, 2022. The motion for emergent relief seeks an order placing the student on home instruction pending re -evaluations for appropriate placement as the student poses a danger to staff and other students. The request f or emergent relief was heard on February 24, 2022. FACTUAL BACKGROUND D.F. is the parent of N.F. N.F. attends the William F. Halloran #22 School in the Elizabeth Public Sch ool District. N.F. is eligible for special education and related services under the classification of Autism. N.F . has been due for a triennial re- evaluation for approximately one year. No re-evaluation has taken place to date. N.F. exhibited self-injurious behaviors while in school on January 21, 2022. Staff were required to use physical restraint and therapeutic hold techniques. The School Nurse checked out N.F. after the incident. D.F. was notified by letter from the Principal, Ms. Alfaro. A one -day suspension was imposed on N.F. on January 24, 2022 for “hitting, punching and kicking staff members. ” D.F. was again notified by letter from Princi pal Alfaro. He was advised that he must accomp any N.F. to school and attend a conference. N.F. returned to school on January 25, 2022 with D.F. A three- day suspension followed on February 1, 2022 for “ physical aggression against the teacher and aide and classroom elopement. ” N.F. strangled the special education teacher and stated “ I want to kill you and s lit your throat. ” He also stated “ I want to skip this thing called life. ” Again, D.F. was notif ied of the above via letter , this time from Vice Principal, Linda Trebino. N.F. was required to see a licensed mental health professional before retur ning to s chool. N.F. returned to school with D.F. on

OAL DKT. NO. EDS 01330-22 - 3 - February 7, 2022 after seeing a licensed mental health professional, and after D.F. met with Principal Alfaro and other District staff. An email from N.F.’s case manager , Susan Luskie, was sent to D.F. to request and IEP meeting. Several dates were proposed, either in person or virtually. D.F. responded he was unavailable on the suggested dat es and would provide alternative dates. Also on February 7, 2022, the Director of Special Services, Diana Pinto-Gomez, followed up to request dates D.F. was available. The response from D.F. was to inquire about the Distri ct’s den ial of his request for independent evaluations. He refused to attend an IEP meeting until he retained an advocate of counsel. He also asked f or a meeting to discuss N.F.’s suspensions. Director Pinto-Gomez emailed D.F. on February 8, 2022 to follow up as to dates for an IEP meeting. There were further email ex changes which did not result in a date for an IEP meeting. Director Pinto-Gomez replied via email, on February 9, 2022, to D.F. advising of the need for an IEP meeting. N.F. was given another one- day suspension on this date for “physical ag gression against a teacher, aide and security guard and classroom elopement.” Vice Principal Tre bino notified D.F. via letter and advised that he must accompany N.F. to school for a conference on November 11, 2022. D.F. sent an email to Principal Alfaro on February 9, 2022 regarding the attendance issues with N.F. and accusing the District of falsifying records, stating “ the bias and malic ious manipulation, revision and recording of student attendance by staff has a pattern.” He further advised that he received a telephone call from Vice Principal Trebino about the suspension and that N.F. contradi cted the events that led to his suspension.

OAL DKT. NO. EDS 01330-22 - 4 - Another email from D.F., on February 10, 2022, addressed the need for a meeting with the CST and the falsification of reports. D.F. brought N.F. to school on February 11, 2022 after his suspensi on. D.F . would not speak with anyone regarding placement and left. After D.F. left N.F. was again physically restrained and therapeutic hold techni ques employed due to aggression towards staff and school property destruction . At this time N.F . was placed on home i nstruction. D.F. was notified by letter dated February 11, 2022. D.F. responded via email that he opposed home instruction. There has been no IEP meeting and no re-evaluations. D.F. has refused to meet with the IEP team and has refused to consent to any re-evaluations. N.F. has been on home instruction since February 18, 2022, consisting of t wo hours per day, five days per week. LEGAL ANALYSIS AND CONCLUSION Initially, it must be determined if petitioner is entitled to request emergent relief. A party may only request emergent relief for the following reasons, in accordance with N.J.A.C. 6A:14-2.7(r)1: i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation determinations and determinations of interim alternate education settings; iii. Issues concerning placement pending outcome of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies.

OAL DKT. NO. EDS 01330-22 - 5 - As the present matter concerns the issue s of a break in services, d iscipline and placement pending the outcome of due process proceedings , Petitioner is certainly entitled to seek emergent relief. The New Jersey Supreme Court has set forth a four -prong test for determining whether an applicant is entitled to emergent relief. Crowe v. DeGioia, 90 N.J. 126, 132- 34 (1982) (enumerating the factors later codified at N.J.A.C. 6A:14.2-7(s)1.) The four factors (“the Factors”), include: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying petitioner's claim is settled; 3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. The moving party bears the burden of proving each of the C rowe elements “clearly and convincingly.” Waste Mgmt. of N.J. v. Union County Util. Auth. , 399 N.J. Super. 508, 520 (App. Div. 2008). A review of the four factors is in order. Factor One. The petitioner will suffer irreparable harm if the requested rel ief is not granted. Staff are also at risk. N.F. is also at risk, as he has exhibited self-injurious behavior. H is continued behavio rs need to be addressed , and an IEP developed to address them. Petitioner is required to maintain the safety of its stude nts and staff, and to ensure an atmosphere conducive to le arning for it s students. N.F .’s continued attendance at William F. Halloran #22 School will greatly diminish Petitioner’s ability to provide the same.

OAL DKT. NO. EDS 01330-22 - 6 - Factor Two. The legal right underlying petit ioner’s claim is settled. Petitioner is responsible for maintaini ng a safe sch ool for its students and staff. N.J.A.C. 6A:14 - 2.8(f) authorizes the removal of a student when the student caused a serious bodily injury under 20 U.S.C. §1415(k). N.J.S.A. 18A:37-13 states in pertinent part “… a safe and civil environment in school is ne cessary for students to learn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts bot h a student’s ability to learn and a school’s ability to educate its students in a safe environment…”. Factor Three. Petitioner has a likelihood of prevailing on the merits of the underlying claim. Petitioner must address N.F.’s behavior and his disabi lity in developing an appropriate IEP. The only avenue available is to re -evaluate N.F. and determine an appropriate placement. In this regard, Petitioner is likely to prevail on the merits. Factor Four. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will s uffer if the requested relief will not be granted . Both Petitioner and Respondent will suffer ir reparable harm if the requested relief is not granted. If granted, N.F . will continue to receive an education via home instruction pending re- evaluation. This is not the least restri ctive environment. He needs to have re -evaluations done and a proper placement made according to his needs. The Petitioner, if not granted, will be unable to ensure the safety of its students and staff, and the ability of its students, particularly the classmates of N.F ., from receiving an appropriate education in a safe and civil environment. It should be noted that D.F. stated that he believes any evaluations done by the District will be biased. This is why he requested independent evaluations. That request for independ ent evaluations is the s ubject of ano ther due process petition currently before the OAL with a different ALJ. This belief is speculative. N.F. is one year past due for his triennial re- evaluation. See N.J.A.C. 6A:14- 3.8(), which states in pertinent part : Within three years of the previous classification, a

OAL DKT. NO. EDS 01330-22 - 7 - multi-disciplinary reevaluation shall be completed to determine whether the student continues to be a student with a disability. The OAL has previously granted emergent relief in similar circumstanc es. See Gloucester City Bd. of Educ., OAL DKT. NO. EDS 09165-15 (2015), Wayne Twp. Bd. of Educ. v. G.G. and S.W. ex.rel. G.G. , OAL D KT. NO. EDS 05519- 17 (2017) , and Washington Twp. Bd. of Educ. v. H.M. ex.rel., OAL DKT NO. EDS 08328-19 (2019). Based upon the foregoing, I CONCLUDE that petitioner’s request for emergent relief be GRANTED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief is GRANTED, as follows: 1. J.L. is to continue on home instruction . D.F . shall cooperate with the implementation of home instruction; 2. Petitioner is to commence the triennial re-evaluation process as soon as is practicable, but in no event later than forty-five days from the date hereof; 3. Evaluations done by the District shall consi st of a Psychological Evaluation, an Educational and Social Evaluation, and a Psychiatric Evaluation; 4. Respondent is to fully cooperate with Petitioner concerning the triennial re- evaluations; and, 5. All re-evaluations are to be completed no lat er than ninet y days from the date hereof. This decision on application for emergency relief shall remain in effect until the issuance of the decision on the merits in this matter. T he parties will be notified of t he scheduled hearing dates . If the parent or a dult student feels that this decision is not

OAL DKT. NO. EDS 01330-22 - 8 - being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education. February 24, 2022 DATE THOMAS R. BETANCOURT, ALJ Date Received at Agency ________________________________ Date Mailed to Parties: ___ db

OAL DKT. NO. EDS 01330-22 - 9 - APPENDIX List of Moving Papers For Petitioner: Due Process Petition Brief in Support of Application for Emergent Relief Certification of Chihui Seo-Alfano with Exhibits A through I For Respondent: None