good morning your honor my name is jack clark i represent the riverside county office of education appellant in this matter yours i would like to highlight three points of argument this morning the first and most important is the both the administrative law judges and the trial court below failure to properly apply the difference between the standards under educational law under the i determining where a child should be placed and i'm going to try to separate those terms in terms of the disposition hearing after a finding of responsibility for a violation of california juvenile  law i want you to get into that i'm going to panera question since you're i understand what's at issue here actually that's the question what's at issue here i'm not sure what's left i mean the county has already made the recommendation the judge directed the county to make the judge was not persuaded of the counties no longer responsible for his help by the state is there any practical result to come from this hearing very much so you that the concern here is that the i d f should not be used for purposes that it was not intended by congress but if what can we do to help you with that i mean when you already tried to intervene and were denied if we rule for you do you take any other action do they have to take any other action what would happen if you rule for us because there are two aspects of this if you will for us and we believe that the administrative law judge in particular did not consider powerful evidence that showed today age made educational benefits during the two year period he was incarcerated in the juvenile and juvenile hall and being educated in the juvenile court school but even if we agree with you what difference does that make what will happen it makes that makes a significant difference you're honor in that situation then groups like county also to case would not be required to provide compensatory education because you recall that one aspect of the judge's order was that we were to try to provide speech in line with services defendants excuse me the division of juvenile justice facility in northern california didn't ask didn't talk about that means far as we know that's already been accomplished or it has to do with a particular deficiency not the broad proposition as to whether she should made any educational process i mean there are lots of cases that we get we get as surely you're familiar with we have lots of id cases and there are many of them where there's general progress but there's a particular deficiency in some degree of compensatory education is required as far as i can tell i mean your brief didn't tell me why compensatory education a said shouldn't be required so i didn't view that as being an issue we thought we did your honor in the in the extensive section but  of may progress well you know i understand that but what i just what i was posing to your most trying to pose to you was that we see lots of cases where there's an argument or an issue as to whether there's been progress but there is also even if the court determines there has been progress there may be specific deficiency short of not having any progress at all some specific deficiency that says but we still need some degree of compensatory education or board sessions for this particular problem and i didn't see discussion in your brief i have a lot of discussion certainly about progress but the specific deficiency that prompted the algae to say this speech the speech sessions maybe it's covered by your general discussion and i confess i never i never picked up through your briefs that a challenge to the compensatory education was really on the table here under that's the that's the thrust of our point if indeed only relief that they asked for which we can ask your opposing counsel about why they didn't ask for other relief but it seems like the only relief they asked for was that you try to intervene and make this recommendation and those things seem to have happened unsuccessfully and they're gone and now i believe it would be presidential your honor because the argument could be made for every child who's on who's incarcerated in a juvenile hall in the state of california so why don't we hear the appeal of the next child's case then i don't understand why we would reach out to try to just announce some law in this case when it doesn't have any effect on what would happen with this child but that's the problem in almost all id cases you're under the under the idea when an administrative law judge orders a remedy and the trial court  court cited a nother district court the humbled case which was on order on a motion to dismiss t r vs humble county county also education and asserted that it would support what the district court trial what the district court trial court did so and indeed your honor if this continues this case is not reviewing the reverse it will have a very significant presidential effect i need to expand on that and it's going to be a very important effect in terms of the difference between what congress intended through the idea which was to make sure that the members of the children of our community who have disabilities that make them eligible to receive educational benefit and the support they need to receive an education it was not intended in congress in the real authorization of the i d e a in two thousand and four one thousand nine hundred ninety seven actually made it clear that the state should not be precluded from applying its juvenile court laws to an individual student who happened to be on and i p well that that's not at issue here though there's no question but the juvenile court had the last a juvenile court was swayed by the recommendation of the county was required to make so so i don't see how that's offended it is offending your honor because particularly in the way that the that the administrative law judge ordered us to do it the administrative law judge who knew that the case of being closed ordered us to try and find a residential treatment center and i'll address the issue in terms of the infirmity of these on the administrative law judge order in that because it was in not an educational based order but he ordered us to try and join the matter after the case had been closed we believe that's strong strong evidence that an educational tribunals is trying to directly affect a state court juvenile court proceeding and that should not follow yes but a fact not control you why can't why couldn't it be reasoned that you know the juvenile court should at least hear from the educational expert and if in this case the educational expert recommends residential treatment center take that is one of the part part of the broth for the juvenile court to consider but the juvenile courts not required in this case did not because because the educational analysis in term and i thank you for that question because it goes to the core of our position the educational analysis in terms of residential treatment center is not at all connected with the overall analysis as the california court of appeal fed the myriad factors including and this is important including the concept of public safety and i p team is required to provide special education and related services the reason we calculated to provide some educational benefit in the least restrictive environment the combination of those factors well control an offer of educational placement under the rachel h case and of the ninth circuit about twenty three years ago and the progeny of that case there are four factors in terms of least restrictive environment not one of those factors one of them concerns public safety or or as and it's in the well from institutional but the juvenile court can have the concern about public safety what's wrong with making an educational recommendation that then gets considered in the mix because that in the disposition here in your honor and then this and this is the the the core of the matter before the court but whether you're in a state penal institution or juvenile court determination they asked you to think about it and make a recommendation from the educational perspective and then tell the court what you thought and then the court can reject it just like the court did but and in so doing your honor we're making we're making a recommendation that has no connection to the juvenile court proceeding in other words we're making a record we don't know that the right the juvenile court maybe isn't equitable as we think either of these placements would be ok and so maybe the educational input would tip the balance and that's exactly what it's if the if the if the court were pows in terms of the services that were needed and let me put it this way if the child needed a quote unquote residential treatment center then whether in state prison or where they were in juvenile hall in a court school then in that setting you would need to bring in the services and facilities that would approximate or recreate a residential treatment center in that facility it is a misnomer to suggest that an can't say to a juvenile court we believe that this child should be placed somewhere that would be considered generally in the community that's the problem here is about this because i thought part of your defense was that the court did recognize that there was an ip i mean it the juvenile court didn't think about the educational needs here as it's required to do but it's the elements of the education place if we were in the community if we were not incarcerated in that situation course relation the ip team could make a recommendation for anything from a comprehensive school campus to home to a home placement and let me put it that way could we because of a child's illness suggest the child be placed at home and given home hospital instruction that would mean it seems like you could recommend it in the court could say no way it would make it would make no sense in that and we're going through an analysis that that's fictional and we and that can and the concern that was raised by that your honor and just a moment ago is of great concern to us as a local educational agency that somehow the recommendation of the local educational agency for residential treatment center might actually have some some sway because well teachers are suggesting this but we would we would be hamstrung because we would not be able to give  the true recommendation in terms of overall troop placement for the student under the juvenile court it would be it would be in our in the in our view and i think properly so and especially in light of what congress said that it does not  one five subdivision case six right but so it seems like there's some tension between those two i don't believe so your honor ok six and judicial stories from exercising the responsibility to guard the application of federal and state law crimes committed by the child with a disability we submit your honor if school officials in the court schools are coming in and saying we believe this child should be placed someplace outside of the juvenile justice system that will confuse the issue and actually could do do harm to the juvenile justice system well sentencing judges and the judge do not a does that is is they job have to deal with recommendations from lots of different perspectives it's not that the court is incapable or the juvenile court here was incapable of sorting out the perspectives of the different people making recommendations again your honor but there's nothing the i d e a makes it clear that for incarcerated age was placement in eight a juvenile residential treatment center i mean there was even discussion i've forgotten the name of the facility it was there were skills comparable it was there was a specific discussion that was an option available to the juvenile and they cited control in calif no one is questioning yes the ultimate judgment of the juvenile court the issue here is near is there a reason why the juvenile court shouldn't have the benefit of the county office of education's view  and nobody is trying to say the county of office of education has to be blind to the fact that this is somebody who's been held by the juvenile horn accountable for second degree murder so home placement is not likely to be in the car but that's the problem you are  submitting to the court that ip teams have to be blind to that yes we have to then you tell the court we're blind to the danger to the community issue we're just educators we're just telling you the educational perspective and then the court which is responsible for considering the danger to judicially creating an obligation on the part of the local educational agency at the time of disposition in a juvenile court proceeding to give a recommendation that otherwise we do not believe it is qualified to give under the circumstances i first a p for j h occurred in the fall and actually in the summer of two thousand and eleven when he first came in if the courts reasoning is to be applied in accordance with id a law we would have to consider outside placements every single time we call an ip that's the problem the the fit between an educational analysis and a societal analysis in terms of the juvenile justice system is not there and we are greatly concerned that th one four one five case six and say yes so doesn't the legislative history of that provision suggest that it's about arrest and ability to prosecute and not what happens in detention do you have any case the talks about something like what you're arguing that that provision affects your ability to make a recommendation about what happens in detention the we don't have a case on point and that's why we're here today your honor because because it was true that the courts when the when the manifestations from a nation requirements under the in that case it was it was an arrest which of course would be a precursor perhaps to incarceration they were mistakingly thinking that the manifestation of terminations could extend into the juvenile court we believe congress tried to make it clear that the idea was not to intrude upon that function but it's pretty strange that the other provision we talked about the d'sevyn a one only talks about adult incarceration so there seems to be an omission that when you fit the two together leaves at least an ambiguity i can see your honor's  the the apple e's own expert who testified that this child could be fully educated in a regular education classroom a regular education classroom would be at a comprehensive school site and therefore are we going to come in and come and say to a court if assuming that the experts testimony was what's taken properly we do not believe it was if that position was to be taken then we would be recommending that a student who burden is on you all to give some advice to a juvenile court that's going to ultimately make the decision for you and your as as my colleagues as sent no juvenile court is going to say yes well put the person convicted of second degree murder in a public school or yes we will release him to his home it's not going to happen i know it's annoying i get that you might have to discuss that even though there's zero possibility of it happening but so what i mean i just what is the huge burden the puts the district out so much in this situation it's the function it's and i tried to make this clear in the argument before the court is the complexity of the id we are already in a situation where where we're responsible for assessing providing educational services and determining what's appropriate i associate is a process but this comes up how many times once or twice a year but five times a year on our i can work concern that if this case is left at standing this will come up multiple times per year of a multiple meaning the juvenile court schools in riverside county one county for four million people out of fifty two in the union in california so at least ok so i'm still not getting a flavor of why this is so crushingly a burden on the district because your honor we were being asked to do something one that makes no sense under the circumstances and we believe will lead to even further litigation when we say have a burden on us your honor we're talking about making  the court has to do and that was that was what is issue here they were the petition to give me the apple leave was asking for us to make a recommendation for placement the placement was being incarcerated and we had regard to provide services while the does and so in real terms you are we're very concerned that we're going to intrude upon and confuse the juvenile court proceedings and have the idea used we're going to see the intent of the court judge is not going to let you intrude upon anything in his or her domain this is not going to happen in real terms or aren't and we argued this in our in our reply brief if if the what's going to happen as a practical matter if we have a dispute concerning the id and the juvenile court proceedings are going on we then have this disjointed illogical we believe system that creates more and more confusion of juvenile court here than i have any problem saying thanks but no thanks i mean well that if it was because the case was over to a statute that was intended to make sure the children who are incarcerated or in the community have proper services if you're incarcerated that is where you're going to be educated to suggest that a group of educators should good morning your honour's it please the court i am tonya white leather i represent j h a student with a disability i have to let you know when i first took over representation of j h i was concerned that i had each client who was a sociopath i had heard about the horrible crime he'd been accused of i was worried for his safety for that of others i looked at the records i net with him i talked to another value waiter's i learned that he was a child with a lot of abuse whose original school district and the riverside county office of ed had ignored his mental health his behavior his educational needs and he was in need of a lot of things including no there is no i was going to start with abstention which i think is just a not an issue nothing that the juvenile court did had anything to do with education they never heard anything they never had testimony they never looked at educational records they handled the juvenile court matter and whatever is done there is separate with the sole exception that in placement hearings under under rules of court by a point six one five or five one whichever it is it's in my  brief the the juvenile court takes recommendations upon placement recommendations from probation it's in the record officer post researched recommendations and gave her probation officer recommendations the i e p is the entity tasked with the terminating educational needs under congress i d e a says they will sit down with the experts do the assessments determine the needs addressed services and although it doesn't exactly say placement services as part of placement and make recommendations were j h not incarcerated east entitled to all the rights including continuum were he not incarcerated the offer here in california would be given to the parents and the parents would say yes or no and until a parent said yes or no a new placement could not be which is a placement for a year's time it goes into the future the placement could not be implemented without express consent from the parent the courts involvement with an incarcerated student is very much the same the court relies on the experts one of those is the team which is supposed to pursuant to i d e a identify all of the needs through appropriate assessment and by the way they did in speech and language and in sri believe it's two sixty nine is in october of thirteen i'm sorry s r one sixty s e r was the very first time that the full speech in language had been done and it was identified at just before the start hearing that he needed speech and language services that were based on a formal assessment and that was lorraine hill from department of juvenile justice is johannah boss the ip team comes up with the recommendations makes  recommendations i trust the juvenile court whether i agree with the placement or not i trust the juvenile court to take in all of those recommendations and to make the appropriate placement one of the things the juvenile court does is determine safety to the community it is not an ip determination the ip determination is education placement services and could the juvenile court say the only way to maintain safety to the community is to put this person in solitary confinement and give them no education at all i don't believe so under ideal because there must there is under state law a requirement that the court consider educational needs and this is again the rules of  court education special education and mental health because i have been a little bit confused about why you didn't ask for more relief i mean it seems like part of our problem here with why there's nothing left is that you asked for a very minimal form of relief and i'm a little bit confused about whether you think if he's not improving something else should happen what had happened until typically in these these are very assessment based we did not have the assessment by dr fuentes even as the first day of hearing started mr clark and i were ordered to go to the ip because mr fuentes at the direction of mr clarke had stopped his assessment when joseph had been temporarily sent to stockton so we didn't even have the assessment done even though mr clegg mr dr fuentes could have flown up there to finish it we had to put off the hearing and then we got the hearing and we got the information the same time we were getting a private assessment from dr bashar by that time by the time we were in hearing we couldn't raise the issues we did seek remedies dr presario gave a list of remedies it's in the record and i won't go over those but a list of remedies and things that j h required some reading services instructional services he talked about one to one which was other appeals or complaints we had a subsequent a complaint against our riverside county office of ed and the predict probation department was transferred up to johannes oss so we've had two complaints against the california so we have been addressing that so there are other pieces of litigation that are proceeding we have not currently because we've settled all of them and obtained other remedies so even with those we're going to stay there because he is up there and not and was not getting services even actually ordered yes but we did get those remedies when we had the evidence from the expert assessors including mental health which was crucial for this young man does he have a hey b s case is our has it is there anything left of the criminal no i don't know it has it's been exhausted through the state and there was actually a petition for certiorari to the supreme court that was on director of you're right you know if there is a heaviest no no no there was nothing for it so that it's  it's done and again the the court of appeals did not address that they made comments dicta regarding educational needs but they did not conduct a hearing and they did not review the record so it's a completely separate matter  the the ip team's duties are very clear under ideate to make these recommendations again the parent would except in this case it was the juvenile court except it and i i have yet to have what  you suggested the situation your honor where the student is put in a room without any education would be fascinating but i don't think any juvenile court would go there the student has to have some education and the court determines that within the consent safety first and then how do we meet those needs within safety if the court doesn't have a recommendation as to what the student's full educational needs are the can't court can't make that recommendation but i really can kind of come back to the question it sounds like all of this is is is done if there's no longer anything that the county is responsible for if it is made the recommendation that you  juvenile court that it was required to do unless there's an issue about the compensatory speech and language sessions i think still pending as i've been accomplished by that's been resolved so is there anything left for us to do until we get to the possibility of of capable of repetition but evading review it is that the situation that we're in that's the situation we're in we fought long and hard fornia we have various offices of education to have them recommend residential placement the position has long been we can't recommend anything outside of juvenile hall which there is nothing in i d e o state law that prohibits an i e p team from saying we think this type of placement would be appropriate to a juvenile court you're saying that's a statewide position it just this county it's been yes it's been addressed  the california department of education and it was orange county office of education and the when a student goes to juvenile court the team still continues or the local educational agency continues to have duties to identify the needs of the student again as state law and as fourteen fifteen says the state still may affect whatever orders it needs to or i guess i'm confused maybe we miss communicated but i thought you were saying that the state of california has taken a position statewide that the department of education cannot make these kind of recommend no i'm sorry i didn't mean to imply that we have found in many of our due process matters with dealing with county offices of education and this is where i think mr clark is arguing have said no we cannot recommend a residential treatment center i believe the reason is if in financial because if a county office of education makes the recommendation and again an i p is not for today only it's going ahead into a years time if the county office of it makes that recommendation then they must initiate it and if it's approved by the court if the court is involved they must  initiate the payment that's where i think the problem is they are concerned about getting on the hook for having to start those there is authority that says then the so you're saying they're worried i mean he didn't say that i don't think but you're saying he's worried he would have to pay for the residential placement that it wouldn't be within the criminal budget no no if if the courts usually what happened c m is a good example the c m case that mr clarke referred to and i addressed in my answering brief is a very good example sam was my client she was in l a county office of education she was going to be placed by the court we had an ip team meeting the i e p a involving like oh l a county office of  indicated that yes she should actually we went to hearing on that she should be offered a residential treatment center placement that's what the young lady need we took that order to the court and the court then released  is the court instead of ordering the placement released her to residential with the order that she return and they would continue to follow her progress the court has the authority to do that so they did they didn't place or because they would have been responsible and financially she was placed by like oh like over and under our state laws gave a financial responsibility over to the school district los angeles unified c m we would have gone someplace else had we not identified residential treatment center and i have been in half a dozen cases where the same thing occurred a county office if they had as a student who needs residential we get the recommendation and present that to the juvenile court judge the juvenile court judge makes the determination and in every single case we have had nothing a series a crime as this but in every other case we have had the court release the student to be placed in the residential treatment center so it sounds like you don't need our help you'd rather us just say this is moot i think so i think i think it is all i mean we've done it i think the law is clear  let me see if i got anything else that i know you didn't argue really i didn't think that this case was i think i understood where mr clarke was going i understood he's talking policy and that's going to be repeated poor county offices of education will have to hold you want to note that i'm sorry i was just going to say you don't have to use all your time i'm not sure we have further questions i was just looking to see if there were anything else i did want to know even dr wesson who is a clinical psychologist with the riverside county office sorry testimony by him in the due process hearing this is the o j not to the juvenile court yes this was in s are for twenty eight it's in my supplemental seven for twenty eight seven to twenty five this is the clinical psychologist yet they never made a recommendation if there are no more questions thank you council will give you two minutes  placement you're not saying that you were saying there was nothing to prevent j h from being able to go into a general education classroom if you were outside the juvenile system is that right yes and then he was asked question what is your understanding the role of the actual juvenile court in terms of placement of young offenders and his answer was this in part and so what i'm saying is i'm not sure that a long sentence in the juvenile court system is necessarily going to give him or me in regard to some of the things we're talking about here and that's why i'm suggesting a residential treatment center in other words your honor his testimony was geared to try to affect the disposition of the court not of the juvenile court not from the perspective of what he needed educationally but in terms of what he believed placement would be appropriate in terms of not putting them into the division of juvenile justice that is exactly the thing that court as as an educator a group of educators the same we believe the child should be placed pursuant to the idea and say jones occasion classroom and i do believe that there is a real concern that the juvenile court system will be adversely affected by that thank you thank you thank you both sides for the very helpful arguments the cases submitted that we are joined for that week