district court contradicted supreme court precedent misapplied k panel open and most clearing only despite the l j having heard eleven days of testimony over six hundred pages of transcripts the district court violated the standard of provided t w with fate and i'd like you to refer specifically to somewhere in this sixty three or four page opinion of the l g i'm having a hard time finding finding the finding and the basis for the fine so if you could point me in that direction  leave the issue here is pre school versus kindergarten with support yes so the finding the fact of beginning at appendix a fifty five and looking at the kindergarten program which would use the word retard his progress emotionally distraught and his ability to interact with other students and that would set him back from advancing honor so what do we make of his real i mean there are all these experts every which way and he chooses to rely upon expert and never even looked at the while dr braun cartel is a very experienced developmental pediatrician at the children's hospital hospital in philadelphia she has been she has been a used pediatrician since he was two years old and she the majority of the children that she sees are children on autism spectrum so she has a lot of experience with this and specifically at paid in the transcripts at page eight hundred sixty five she expects and in other places in her testimony  as well as in her letters she explains that the idea that a child on the autism spectrum is particularly with such a late september birthday not turning five until the end of september the idea that a can of are and that they could be successful and can a garden she could very easily see that that absolutely would not work so it's a blanket rule all children that fit that diagnosis are ineligible for kindergarten i don't know that for dr bomb cartel in her expert opinion yes obviously other acts means we don't even really need them to go through the interactive process of consulting the looking at the support look at the scaffolding look at n for all she had seen since the age of two up until now you know almost him turning five that's that's how dr brom cartel felt now not just this child you said you just said a minute ago that anybody on the autism spectrum with a late september birth to kindergarten is not going to be a for i apologize runner i misquoted just dr bartha she did she did not say aspecific as that those are reasons why but she was making this decision for what she knew of her patient t w kindergarten would not be appropriate other experts made me look at it differently but it would have to kinda what if the kindergarden i e involves all sorts of socialization enrichment but how do we know that that would not  say that says he needed a lot of support and scaffolding to develop the ability to listen to others and interact with peers and teachers but didn't even look at the high e p to see the support and scaffolding that was provided which they adopted everything that yale said should be adopted  let me go back a minute and your initial argument before we started questioning about the the merits was that the district court got it wrong in applying k panel open and i think there's something to be said for the fact that the district court never did address the issue of whether fate whether the correctly decided the fate was not provide is that not correct the district court based on a legal error decided that the l j could not have determined whether or not faith was us that we send it back to the district court to say you got it wrong penalty and doesn't apply you need to decide whether the a l j was right or wrong in saying that what was set forth  was for the determination of attorneys cost and interest and the why did we decide fate why would we decide the issue that the district court didn't decide shouldn't we have the district court in the first instance to side with it was correct or not well in in he disagreed whether it was a fact person that's it they're the district court decided the merits and said you know i disagree there is no faith i mean the faith was provided and then we would address that with them correct or not but here we don't have the district court speaking at all as to that issue well your honor i would also say that here the district court had multiple grounds for overturning they all j none of them valid and given that the district court has already tried various approaches i think that that shows that this record has already thought about what would be the issues with the oldies opinion and because none of those are valid which is before the court right now there's no reason to believe that on a remake and the district where we're now find a valid reason when they've already tried at least three holding here it's based on cape town love i think there's three holdings there's there's there's holding saying that you can't make a safe to determination there is also a determination which contradicts the supreme court's precedent in florence county saying that an alternative grounds is that  when the parents made an ip with project child as a unilateral placement that because they didn't invite the school district to that that that would make it on able to determine that's just clearly wrong with supreme court precedent and third the idea that the district court if i may just finish the question i thought thank you and third the terminations that alternative findings that the parents the lead meetings and that they didn't give notice and those those factual findings by the district  morning may please the court sherry adams adams turned good t r s law to be there on behalf of the upper freehold regional order that i'd like to address the question that was was raised by the court in terms of dr bomb go all of the other witnesses the district witnesses all of the experts who are educators who are behaviorists who went to the program who observed the program and all of those individuals who supported the movement from preschool to to kindergarten basically the district court did not have to overturn any findings because literally you actually have experts testifying both ways they want to keep the child in the child predator program or the child should administer can the garden i mean for me looking at the record this is pretty close friends yes and i probably a very difficult case for you because of the competing experts who are testifying i think that that's accurate i think and what we tried to make clear in the in the brief is at the time of the ip and this feeds into actually the district court's position in terms of the equitable considerations of notice at the time that the i was proposed in june fifteenth dr bom cartel had basically said that he needed to move to a project find program with older age appropriate children that to me is not the equivalent of staying in preschool  finding to that effect so we're really dealing with something after the fact when me june fifteenth meeting occurred and dr presents report wasn't ready they adjourned the meeting at that time they asked the parents to accept or reject they did not say so either way they couldn't  the meeting was rescheduled wanted more time to produce the final report right and the report was rescheduled for twenty nine right and apparently with them informally on that correct and then apparently the report was not yet done so the meeting was cancelled and the report was repaired provided the district sent a letter suggesting they contact the district you can to try to work towards an agreement there was no further contact ever after fifteen days yes it d say that yes because they have to offer something with a fifteen day notice the requirement you offer this is the truth of war judge's decision and individual education plan provides or does not the the regulatory provisions having to do with you know lateral placements and reimbursements were violated there was no notice there wasn't a rejection of the ip there was basically any further discussion in terms of the ip process was that if in fact what happened at the ip meeting or when the ip was proposed was basically i disagree and i'm filing and i'm going to make you give you notice of my you know lateral placement i'm going to go precede in place my child in september that's not what happened what happened was now we are not accepting this is your final proposed i we want to sit down into scott says we want your response to reports so there was an effort on the part of the parents side to try to continue discussions with me and i thought that the district expected there to be further discussions but instead on july third you got a letter saying we're going our own way well basically that would have but the one letter that they received had only to do regular preschool kindergarten program and the july third letter from the parents said we look forward to your response correct and that's when the district sent a letter in july eleventh trying to basically arrange for further jay didn't have the benefit my concern here is the l g not of the benefit of our decision and correct it's right so why shouldn't the district court of sent it back to the ale j so you could make a full record because it seems to me the action in this case the grounds for a decision focuses largely on on whether or not the parents what their own way prematurely rather than letting the process in try private school at twenty five thousand a year i do think that that is a factor in terms of the k pendulum case but in this particular circumstance a unilateral placement was made and the issue before the district court was whether or not the parents were entitled to reimbursement for that so the fact that that they equitable considerations the lack of notice warranted denial of that reimbursement for the unilateral placement regardless of whether the a l j found that the district e where the facts and circumstances related to that issue adequately litigated in front of the ale j recognising that nobody knew lope and would decide if there were i think the factual findings were made i think i don't think the district  dentist the a l j is factual findings that they also found that basically the meetings were cancelled that there were was no further contract contact with the district following the district sending that letter all those things that were determined and a suggested that at that point in time there was a disagreement in the parent no longer wanted to have a discussion the parent wanted to place in a preschool program so that's what they were looking to do and they supports that regained after that from their experts were to support that position so i asked you you know what's what's a parent to do that's a letter saying you have fifteen days to respond you know i thank you for bringing that up because i know in the  raised the issue that the parent had no choice but that's clearly not the case first of all they could as they did making a lot of replacement and seek reimbursement the other possibility is that they brought suit within this fifteen days but then you get into september and the parents are saying ok we've been at this we've got a school year here we've got to we've got to do something and i think that's why the regulatory provisions allow for notice ten days before and that didn't happen here so even though the parents decided to initiate a due process petition they didn't provide the ten days notice prior to september that they were placing the child in the preschool program the closest factually to this because i don't find keep experts everybody was talking but everybody was disagreeing and at some point the parents said ok we've got to do something so what's your best case for the proposition that the district court was correct that given the equities i think a panel up and has the faith the closest scenario but i think the cases that deal with this issue are the cases that talk about standards to be applied in the cases of reimbursement for unilateral placement because it isn't just the fact of having  those cases you know you know the i mean he didn't have feet for two months so they put him in a place where he wasn't getting what they were saying he should get and the unilaterally put him there so i agree and also they are they made that finding so they ok in essence did find that the program that they chose was not proper and appropriate as we've set forth in our paperwork and therefore for up until november there was no faith because there was no  there's a general ed student and he had no service so she had the finding in his petition now the fact that and i would disagree i would say the district courts entirely correct that the meeting between the project child in the parents did not create an ip it's not an ip it's some document that they use there after but there was no placement in an appropriate program where the child receives supports and services under a night pay and the judge jail jay recognize that as of september when he was rolled in the program there was no program there was no supports there was no i pay so and that was inappropriate so if you go back to the cases that outline the limitations on you know our placement then clearly if even if you  option what happens is if you do unilateral placement you then make a claim for reimbursement isn't that an error it is unusual scenario but the analysis to go into that is not only what did the district offer at the time that you were making that made a decision that the individual educational plan would not as proposed by upper freehold would not provide an appropriate education that's one finding yes and then he also found that they decision to place the child that about the district program i don't disagree with the part about the project which project child program without any services as a general ed student being inappropriate i agree with that if the finding does not provide a faith i hate to use the acron is and that's a finding of why was it clearly wrong because it's clearly erroneous because of all of the wealth of information that they all j excepted as credible evidence on the record that suggested that it was appropriate f people who went into the program or looked at the program educators and not while dr brown cartel has great credentials in his developmental pediatrician she did not review the ip she did not go in observe any school program she was basing her if you read the l j recounting of her testimony she was basically reiterating what she has an understanding of what kenneth barnes about versus what preschools about so i think you have the whole record and without overturning any findings  any credibility determinations i think that it would be determined and have the district court got into this issue would be determined that the district it did in fact off her state can just comment on the idea the district court came to the conclusion that the parents actually withdrew from the process and they withdrew another was there were not participants and that's one of the reasons why he felt that the administrative voice or just decision was incorrect because after the present a report was provided in the district contacted them to try to engage in further discussion and they no longer wanted to participate and had no further contact other than the context of their no surprise to you based on our discussion about you fifteen that is unacceptable to us because it requires our child to be placed in kindergarten and we absolutely based on the advice of dr bar cartel refused to place our child in kindergarten that would have been the end of the law wouldn't it yes but that wasn't what happened i understand but so so they had all of the it's lori support services called with the program yes they were aware that that was the dispute in fact there didn't seem to be much of a dispute in terms of the actual supports and services but the fact is the yes and then then what did you do then we sent a letter asking them to contact us to discuss a report you never heard correct is your best case at the ale jay got it wrong or is it the district court's decision that the parents withdrew too early from the think that they're supporting the record in a basis for the substantial basis for the district court signing that the notice and the other equitable considerations are taken into account also barred unilateral reimbursement for unilateral play placement appellants expert finished the report the next day july third with a cover letter hand and w handle liver's the expert's report with a cover letter saying please e mail me call me to discuss then almost two weeks pass and the fifteen day time line under new jersey law six a dash fourteen to two point ten the fifth the fifteen day deadline is ticking on the thirteenth day of that  conciliatory approach of consenting to mediation and their cover letter they said you know please contact us to schedule the mediation mediation didn't happen there was a resolution session that happened in august at the end police refer to a letter responding that letter and the record clearly reflects this is postmarked either july thirteenth or sixteenth so i would think that the pellets could have gotten it before the sixteenth even if they got at the thirteen that's after the twelfth even with those  those filings by the parent could these to work towards and they could have and nothing nothing precluded that the parents can would have proposed mediation they didn't do mediation but they ultimately did do a resolution meeting at that resolution meeting the parents came with another letter from dr brom cartel and hand their what they had already provided in early june as the record reflects in our briefs show they had already provided a march letter from dr barnhart's all suggesting project out for the following year they provided another letter at august the at as required by the law the resolution meeting has to involve the parents and the i p t so they were all there courts it was a complete disengagement here and and the dish of course ninth they could when they sent their proposed ip with a cover letter they could have just said you know this you know we're sending you a proposed ip this is just for purposes of you know furthering our discussion we're not we're not sending you this to start the fifteen day other meetings why would you send that letter on june twenty ninth to start the clock ticking that doesn't show interest by the school board in where many say they were rock required regulatory mandate they were not required to do it in that way your honor they could kindergarten had sent in a garden pre registration slips in february and that cover letter it said look we know we've discussed with the child study team that can a garden might not be the right choice but you know we've been advised to go ahead and get the ball rolling so as already in february the parents were having this style off with the school and it continued through the spring and then june they enjoy they have this meeting so it wasn't a last minute thing we're in the record did you front of me and if we if we made the request for relief it sets out the statutory required items which are to inform the school that there is a disagreement and that there is and that as a result of that disagreement the provisions are yes yes running those provisions are in there i would say that at the record again at page twenty one eighteen all of that is laid out written and then for the first prong of that i'm sorry that that's july twelfth so it's almost two months before so well psychologist saying the parents voice their concern that the child wasn't ready for kindergarten and that he should be placed a project child again that satisfies of the statutes roll their child in a private school at public expense yes yes or honor and the parents told them that given on on july twelfth and so that there is a there is a letter later in september that's given the day before and there with the parent say is ok now we're like tomorrow he's going there we're doing but the intent had been put out as far back as as july fifth that they say we think he belongs and project our preschool thank you russia thank you very much case as well argued will take it under advisement