Middletown Township BOE v. IH obo NJ SPDR Agency Ref 2023-35639 | Case 02691-23 | 2023-04-28

New Jersey is an Eq ual Opportunity Employ er State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 02691-23 AGENCY REF. NO. 2023-35639 MIDDLETOWN TOWNSHIP BOARD OF EDUCATION , Petitioner, v. I.H. ON BEHALF OF N.J., Respondent . Jared S. Schure, Esq., for petitioner (Methfessel & Werbel, attorneys) I.H., respondent, pro se Record Closed: April 19, 2023 Decided: April 28, 2023 BEFORE DEAN J. BUONO, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a due process petition and motion for emergent relief with the Office of Special Educati on (OSE) in the New Jersey Department of Educa tion (DOE). The contested ma tter was t ransferred to the Office of Ad ministrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on March 28, 2023.

OAL DKT. NO. EDS 02691-23 2 The motion for emergent relief sought an Order that would place the student with a disability in an interim alternative placement on home instruction for not more than forty-five calendar days because it is dangerous for the student to be in his current placement, as the s tudent poses a danger to himself and others . The Board and the parent did not agree to the placement therefore t he request for emergent relief was heard on March 29, 2023. At the hearing, none of the respondents appeare d. Only the petitioner gave an argument . I granted the order for emergent relief and Ordered that N.J. be placed in the appropriate interim alternative education setting (IAES) of home instruction for forty-five calendar days because N.J.’s current placement is substantially likely t o result in injury to N.J. or others. I further Ordered that the respondent was compelled to enable the District to obtain, release, and/or exchange N.J.’s student records. The Due Process Hearing was held on April 19, 2023, wherein again, none of the respondents appeared. The record closed that day. FACTUAL BACKGROUND Petitioner I.H. is th e parent of N.J. who is a fourteen-year-old eigh th-grader who resides within the District and has been eligible and receiving special edu cation and related services. He is presently eligible under the classification category of Specific Learning Disability. N.J. moved into the Distr ict from Ohio and enrolled in the District’s Thorne Middle School, on November 17, 2021, as a general education student . He began being cited for discipline issues as soon as November 19, 2021. Due to academic concerns and be havior concerns, he was referred to Thorne’s Child Stud y Team (“CST”) on March 11, 2022. The CST evaluated him and found that he was eligible for special education and related service s under the c lassification category of Specific Learning Disability in the areas of math calculation, math problem solving, and written expression.

OAL DKT. NO. EDS 02691-23 3 An Individualized Edu cation Plan (IEP) was proposed at an IEP meeting held on June 20, 2022; I.H. consented to its implementation. At the me eting, N.J.’s case manager stated th at the District wanted its psychi atrist to evaluate N.J. due to the emotional and anger issues he had been displaying in school. The District scheduled two appointments with the psychiatrist, and I.H. and N.J. skipped both of them without informing the District in advance. N.J. finished the 2021–2022 school year having failed all four of his major academic subjects, and having accrued forty-two absences, thirty- four tardies, and twenty-two inciden ts for in fractions including substance abuse, class disruption, and inappropriate behavior. This is set forth in the March 21, 2023, case summary by case manager Frees, LDT-C, EXHIBIT A. N.J. currently attends the District’s Thorne Middle School, where he is placed in pull-out resource replacement courses for all major academic subjects and rec eives both group and i ndividual counseling. See February 23, 2023, IEP, EXHIBIT B. N.J. finished the t hird marking period with a grade of 0 in American Sign Langu age, a grade of 25 in Language Arts, a grade of 66 in Pre -Algebra, a grade of 72 in Science, a grade of 71 in Social Studies, and a grade of 0 in Coding/Robotics. See progress report, third marking period, EXHIBIT C. During the first half of the 2022–2023 school year, N.J. accrued twenty-seven absences and fourteen tardies. See second marking period attendance report and report card, EXHIBIT D. N.J.’s poor academic performance and attendance are of a piece with his behavioral problems, which are so severe at this point that they necessitated the instant Peti tion for Due Process. Specifically, on Se ptember 20, 2022, N.J. took another student’s water bottle, sprayed the other student with it, sprayed the other student’s pants with it, followed the other s tudent ou t of class and sprayed his backpack with it, t hen followed the other student into t he boy’s locker room, which N.J. did not have perm ission to enter, and dumped the water from the othe r student’s water bottle on the other student, and threw the other student’s water bottle at the other student. See discipline log, EXHIBIT E.

OAL DKT. NO. EDS 02691-23 4 On September 28, 2022, one of N.J.’s teachers instructed him to go to the main office because he was being disru ptive in class. In response, N.J. continuously repeated the w ords, “th ese nuts, these nuts, these nuts” in front of the entire class. Later that day, N. J. sho ved another student into his locker from behind , causing that student to fall into another student , and causing one of those students to have to go home due to an injured ear. On October 24, 2022, N.J. insulte d and made inappropriate comments towards several students in his advisory class. On Novemb er 4, 2022, N.J. arrived late to his sign language class. When he arrived, the other students had already begun taking a quiz. N.J. acted in a disruptive manner during the administration of the quiz. When the teacher took his quiz away, he began jumping on the classroom’s radiator and tried to remove the metal grates from the top. He began screaming that he was a “parkou r champion.” When his teacher told him t o go to the main office he responded, “I ’m not going, there is only 3 minutes left of class.” He th en told his teacher, “I don’t f***ing need ASL in m y life. This class f***ing sucks!” He then lef t the classroom, but never went to the main office as direct ed. That same day, N.J. splashed water on a female peer as they were leaving the cafeteria. On November 17, 2022, N.J. repeatedly entered a class he did not belong to and disturbed the students in it. On November 29, 2022, N.J. ask ed to leave his class and then never returned. He later admitted to cutting the class. On December 7, 2022, N.J. would not stop talking to his peers while the teac her was trying to teach. When one of his peers told him to be quiet, he responded t o her by saying, “You shut up. You are annoying with your ugly yell ow f***ing teeth.” On December 16, 2022, N.J. chased after t wo students while threatening to put water on them, d espite being repeatedly asked to st op. He was als o cited for “constantly using inappropriate language towar ds his peers, ar ound teachers.” On January 3, 2023, N.J. disrupted his class by refusing to put his Chromebook away and, when asked to do so, raising th e volume on a video he was wat ching. He insu lted a female peer when she walked into the class from the bathroom. He used foul language

OAL DKT. NO. EDS 02691-23 5 like “s***” and “f***” in class, then threatened that he would “r oast” his teacher, at which point N.J. had to be removed from the classroom. On January 6, 2023, N .J. slapped two peers in the crotch. When a staff member told him to report to the main off ice he responded, “F*** you, b****.” He also told a peer, “F*** you, you sound like a nasally b****” se veral times. On January 24, 2023, N.J. threw a piece of bread in the cafeteria, and it hit a teacher in the head. On February 1, 2023, N.J. sat in the back of his classroom tapping a pencil. When the teacher offered to help him with his assignment, he responded that he would not do his assignment and that he did n’t “give a s***.” When the teacher asked if he wanted to go to the main office, he respond ed by saying, “ F*** this,” and proceeded to throw a book across the room, tip over a desk, and knock over a chair. On February 10, 2023, N.J. was running in a hall way. When a teacher told him to stop, N.J. responded, “Shut up.” Later, N.J. approached a male peer and pretended that he was going to shake his hand, and then proceeded to hit the peer in the groin. On February 22, 2023, N.J. was cited f or disruptive behavior, ignoring reprimands, “totally inappropriate behavior” towards a teacher, “constant comments,” and “disruptive noises.” On February 23, 2023, N.J. refuse d to close his Chromebook despite having be en directed multiple times by his teacher to do so. While on his Chromebook, N.J. access ed Instagram and fiv e additional sites that he was not permitted to use. Id. On March 10, 2023, N.J. began screaming at a fe male peer, telling her that she was “ f***ing annoying” and that she c ould “go f*** herself.” He then stormed out of class. That same day, N.J. grabbed a peer’s neck with his two hand s. At this time, it is the judgement of the school -based members of Thorn e Middle School’s IEP team that the District is presently unable to handle N.J.’s signific ant behavioral needs in h is current placement. On March 1 3, 2023, an IEP meeting was held d uring which the school-based members of the IEP team recommended to I.H. th at N.J. be placed on home instruction via an IEP fo r up to forty-five days while the parties explore an appropriate out-of-district placement. IEP, EXHIBIT F.

OAL DKT. NO. EDS 02691-23 6 Despite N.J.’s manif est dangerousness and the risks he poses to the Thorne Middle School community, I.H. refused to cons ent to the implementation of the proposed IEP. I.H. also refuse d to consent to the relea se of N.J.’s student records to potential out-of-district placements. To protect its students and staff, the District had no recourse but to seek this Court’s intervention. Testimony Chalimar Frees testified that she is employed by the Middletown Township Board of Education as a learning disabilities teacher consultant (LDT-C). She was qualified as an expert in LDT’s, special education and as a case manager. She has been N .J.’s case manager and recom mended that he be in pullout resources and then on home instruction due to his behavio r. His behavior is well documented and causes a significant issue in the district not only for N .J. but also for his peers and faculty. His most recent IEP was developed on March 13, 2023. Faculty was there as well as I .H. It wa s at that meeting that t he decision to place him on homebound instruction was made. As always that decision is never taken lightly because it is a serious placement for an individual’s education . However, here, home instruction is the only option to provid e free appropriate public education (FAPE) to N.J. in the least restrictive environment (LRE). The home instruction in this case is only an interim solutio n until the District c an find an appropriate out-of-district placement. Respondent Neither I.H. nor N.J. appeared for the hearing . FINDINGS OF FACT It is the duty of the trier of fa ct to weigh each witness’s credibi lity and make a factual finding. Credibility is the value a fa ct finder assigns to the tes timony of a witness, and it contemplates an overall assessment of the witness’s story considering its rationality, consistency, and how it comports with other evidenc e. Carbo v. U nited

OAL DKT. NO. EDS 02691-23 7 States, 314 F.2d 718 (9th C ir. 1963); see, In re Polk, 90 N.J. 550 (19 82). Credibility findings “are often influen ced by matte rs such as observations of the character a nd demeanor of witnesses and comm on human experience that are not t ransmitted by the record.” State v. Locurto, 1 57 N.J. 463 (19 99). A fact finder is expec ted to ba se decisions o f credibility on his o r her common sense, intuition, or experience. Barnes v. United States, 412 U.S. 837 (1 973). A trier of fact may reject testimony beca use it is inherently i ncredible, or because it is inconsistent with other te stimony or with common experience, or because it is overborne by other testimony. Congleton v. Pura-Tex Stone Corp., 53 N.J. Super 282, 287 (App. Div. 1958). In determining cred ibility, I do not believe that District employees want to deprive N.J. of a program that augments his educational opportun ities while working within the parameters of the la w an d regulation. I am also aware tha t I am sure the parent wants the best education al opportu nity for N.J. Here, I don’t know what the parent believes but the District believes in home instruction and ultimatel y an out-of-district placement. It is for me to decide. In thi s case, I do not find that there i s necessarily an issue of credibility as much as there is an issu e of experience and knowledge of the law regarding declassification. As such , I a ccept the information set forth by the District. I FIND as FACT that the testimony of the witness was credible to the extent of considering and implementin g home instruction . Here, the information provided by the District is clearly the overriding factor and ample proof that FAPE was provided, and al l arguments were considered when pursuing home education . As such I FIND them all as FACT. LEGAL ANALYSIS AND CONCLUSIONS The Individuals with Di sabilities Education Act (IDEA or the Act), 20 U.S.C. §§ 1400 et seq., requires New Jersey to effectuate procedures that ensu re that all children with disabilities residing in the state have available to them a FAPE consisting of special education and re lated services provid ed in conformity with an IE P. 20 U.S.C. §§ 1401(9), 1412(a)(1). A purpose of the IDEA is:

OAL DKT. NO. EDS 02691-23 8 [T]o ensure that all children with disabil ities have available to them a fre e a ppropriate public educat ion that emphasizes special education a nd related services de signed to meet their unique needs and prepare them for further edu cation, employment, and independent liv ing. [20 U.S.C. § 1400(d)(1)(A).] Under 20 U.S.C. § 1412(a)(1), any state qualifyi ng for federal assistance u nder the IDEA mu st adopt a policy that assures all children with disabilities the right to a free appropriate public educati on. Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 18 0-81, 102 S. Ct. 3034, 3037 , 7 3 L. Ed . 2d 690, 696 (1982). State regulations track this requirement that a local school district must provide FAPE as that standard is set under the IDEA. N.J.A.C. 6A:14-1.1. New Jersey f ollows the feder al standard requiring such entitlement to be “sufficien t to confer some educational benefit,” although the State is not required to maximize the potential of handicapped childr en. Lascari v. Rama po Indian Hills Reg. High Sch. Dist ., 116 N.J. 30, 47 (1989) (citing Rowley, 458 U.S. at 20 0, 102 S. Ct. at 30 48, 73 L. Ed. 2d at 70 8). Thir d Circui t decision s have further refined that standard to clarify that such educational benefit must be “meaningful, ” “achieve signif icant lear ning,” and confer “more than mere ly trivial benefit.” T.R. v. Kingwood Tp. Bd. of Educ ., 205 F.3d 572 (3d Cir. 2000); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238 (3d Cir. 1999); Polk v. Cent. Susquehanna Intermediate U nit 16, 853 F.2d 171, 183 -84 (3d Cir. 1988), cert. den. sub. nom., Ctr. Columbia Sch. Dis t. v. Polk , 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989). The T hird Circuit has re -emphasized the importan ce of th e inquiry i nto whether the placement proposed by a district will provide the student with a “meaningf ul education al benefit.” S.H. v. State -Operated Sch. Dist. of N ewark, 336 F.3d 260 (3d Cir. 2003). The quantum of education al benefit necessary t o satisf y the IDEA varies with the potential of each pupil. N.E., 172 F.3d at 247. The basic tenant for that education is an education w hich o ffers the student an opportunity for m eaningfu l learning , considering the child’s p otential. Ridgewood, 172 F.3d at 247 wherein th e Court found that meaningf ul edu cation must be more than de minimis. New J ersey has adopted th e standards se t forth b y the United States Supreme Court and the Third Circuit . Lascari, 116 N.J. at 47-48, wherein it was foun d that the Di strict is no t required to provide the best education av ailable. See R.D. and

OAL DKT. NO. EDS 02691-23 9 A.D. for C .D. v. Delran Board of Education , 2001 WL 8 30871 ( N.J. Adm. 2001 ). Therefore, if the Di strict through t he applicable IEP is reasonably calculated to provide more than a de minimis benefit, then the school district has met its obligation under the IDEA. CV.J. and D.J. o/b/o B.J. v. Ocean City Boar d of Ed ucation , 2004 WL 763590 (N.J. Adm. 2004). Thus, the i ssue is whether the I EP proposed and implem ented by the Dist rict during the school year was appropriate for N.J. to provide home instruction and offered FAPE in the least restrictive environment. The witness proffered by petitioner, was qualified and very familiar with t he IEP and educational se rvices p rovided by th e District. She testified rega rding N.J.’s progress. The Dis trict in conducting the requi red reevaluation o f N.J. determined that he was still a student with a qualify ing disability and was in need of home instruction because of his unpredictable and vio lent behavior . Here, the Dist rict presented competent evidenc e from an expert in speci al education that FAPE in the LRE fo r N.J. is home instruction . I CONCLUDE that based on the persuasive te stimony presented by the District, and the lack of evidence from respondents, the home instruction provided to N.J. was reasonably calculated to offer him FAPE in the least restrictive environment and was not in any wa y violative of any law . ORDER For the reasons set forth above, it is ORDERED that the Due Process petition of the petitioner is GRANTED and N .J. is to remain on home instr uction as FAPE in the LRE until such time as an ap propriate out-of-district placement is achieved.

OAL DKT. NO. EDS 02691-23 10 This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2022) and is appea lable by filing a complaint and bringing a civil action either in the Law Division of the Superior Cou rt 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 (2022). If the parent or adult s tudent feels t hat this decision is not being fully impl emented with respect to program or services, this concern sho uld be communicated in writing to the Directo r, Office of Special Education . April 28, 2023 Date DEAN J. BUONO, ALJ Date Received at Agency April 28, 2023 Date Mailed to Parties: April 28, 2023 DJB/cb

OAL DKT. NO. EDS 02691-23 11 APPENDIX WITNESSES For petitioner Chalimar Frees, LDT-C For respondent None EXHIBITS For petitioner 1 Petition for Due Process 2 Referral to Child study team 3 Educational evaluation 4 Psychological evaluation 5 severe discrepancy estimators 6 MP2 report card 7 IEP 8 MP3 progress report 9 behavior incident log 10 Proposed home instruction IEP 11 Background statement from case manager 12 Order granting emergent relief 13 Chalimar Frees, LDT-C For respondents None