discreet issues that face the court which number one is whether the appellant's exhausted their i d e a administratively remedies and the second issue before the court is whether the a r j in the district court erred in ruling that conner was not eligible under the ideate did not need evaluation and received a free appropriate public education after referred to by this court in other courts as faith the standard for review is a court knows is a mix question of fact and law is dunno though briefly some of the facts that i think are most relevant and i won't go into all of them because there are extensive documents this was a nine day due process hearing the largest i've ever been in what that means is that conor can't initiate a task consistently timely can't complete them consistently calmly can't follow through can't find his items he's sort of like i think we've heard the saying and we've seen it the absent minded professor brilliant but he doesn't know where to be when to be and how to get there and that is going the story of connor's life it started in in kindergarden it started when he was non metric school the it's in the record i won't go and all that it went on in middle school there is an overwhelming amount of objective evidence during the time that this was happening that not only did cobb county school district know the kind who wasn't just suspected of having a disability cut county school district knew he had a disability knew it was severe stated in writing and stated that it had negatively impacted his education for years this court hell and held in filing in two thousand and fifteen cited in the brief that what triggers an evaluation under the id eg is that what you have to do is you have to you have to do you have to undertake it have to suspect the disability and that it may have negatively impact your education well the evidence in the record i want to read this one section because i think it's important this isn't written in mission back up county in here in connor's night grade year his second semester prepared by his school counselor on his five zero four referral that states connor has struggled with symptoms of a d h d for many years they knew he has difficulty staying focused in the classroom as does easily distracted by sights and sounds time management is a huge issue for him organizing completing tasks is extremely difficult he has trouble completing the class work come work and projects in a timely manner although he takes medication for a d h d he still gets distracted homework that should take thirty minutes usually takes him an hour and a half or more at times he has extra homework as a result of unfinished class work he frequently loses things and is very forgetful and finally quote unquote his grades have been deeply impacted by these issues under this court's prior rulings under the clear law cub cammy had to evaluate this child at that time it was raised in the hearing request that he had to be evaluated under both father for an idea because both those laws require evaluation that he had a five zero four he received a five a four second semester ninth grade and what the facts show is even after he received that five zero four plan which only said that they were going to try to put him in smaller classes try to give him math in the morning and give him some extended time and one of the arguments we raised is it was ineffective we proved it was an effective school district witnesses testified that it did not teach him the skills that he needed  testimony is that the scottish would tell the parents to back off don't help him don't don't support him don't do is work for him make him learn to be organized so they back off that would go way south so then what they would do is hire tutors and get in and basically services front load for his executive function skills and find out what was missing get it done also what happened is very important to realize just for example on that first night grade year he had one hundred  forty one missing assignments this is a bring a kid in a stem class with one hundred a program with one hundred forty one missing assignments if that's not a red flag there are no red flags besides i knew you had a d h d and it negatively impacted his grades they forgave forty getting his homework knowing what materials to have come in the class with his notebook staying on task giving him accommodations if he was not if he was doing work in another class that he was hyper focusing on we needed a behavior plan to get him off that work in and of the work you needed to be the special ed educator miss davies testified that we teach this in special ed this is nothing new this is what we teach we can teach these skills dr gurney the school psychologist to evalu evaluate him said he's a hard worker he doesn't want to fell he just hasn't been taught the skills that he needs to be taught it's not really an issue is he eligible they found him eligible the question is is when  you are because it's a finding from the lower court but that is clear and i can explain why because i'm not i don't i don't want you to just lightly slide over the question because how we review that may be a very important question on the resolution of the underlying question do we give are we obliged to give some deference to the trial court's determination that the did not request an evaluation before the boy's senior year in high school i believe you or not you believe that it is dunno though because they appeal pursuant to the id a under the statute itself  finding mission as an appellate judge you may review that for clear area ok so if i'm just trying to find out how do i review it it may be that it's clearly erroneous but is that the standard of review by i made i can do so yes or i was there and i'll tell you what happened the only evidence in this record at all is that this family asked for in elementary school in middle school that this child get i evaluations and that he have some faggot for some kind of help i do want to say that the laws require it is very clear in this country that they did not have to refer him but to go forward and isn't your filing decision as well that the parents didn't have to request but in any event educational records the defendant asked when did it who did us this for well this was five to nine years prior mother took a few minutes and and couldn't remember names and she came up with a couple that she directly asked the store and the judge said was she couldn't remember it first she said about it we said it would have those educational records they would have been in there but we did have this middle school records where they had had the meeting so she could recall their names so he ruled that it wasn't credible that he did that she did not believe that they asked for them we had another eight days of hearing they never call the names of the people that they said that they asked them for and said no she never asked for that i would never get the relevant wouldn't it be a not for a fact finder to say i heard a and b i just didn't believe well they didn't say that record provided to this court that supports that what evidence of this admission exist yes or it is in their motion for partial summary determination filed thought i cited to that and it was should be in the record to the district courts and that is in the administrators record they found a motion for partial summary determination and the end of record that we reviewed i don't see anything in the record other than what  that i want to go back to my question because i'm not satisfied with the answer that i heard from you was that's not what happened here i looked at the yale j's opinion and the jay says and i quote at page twenty four the only evidence the do browse presented to establish that there was a requirement for c c s d to provide prior written notice and procedural safeguards was whether they previously requested an id you ation were testing for a five zero one five zero four plan but the the in light of clarity specificity in some inconsistency the l j obviously didn't except the the do browse assertion on that point if i review it for clear era i'm still not  this determination was off the charts beyond the goalpost that i would step in and find it was clearly wrong as you're not saying it was an error a legal era that infected the determination it was fact in the purest form so  i'm just not clear if you can tell me just in bullet form why that determination which you concede must be reviewed for clear era amounted to clearer because the parents both testified under oath that they did in fact ask i think that i think the transcript is that is why i would suggest that there's clear error when you look at it and then i thought the administration law judge did concede that she finally did recall a couple of names in that same order there and she that she did so without the benefit of having the child's records for many many years prior in a different school i don't think that's an equivocation i think she said she couldn't remember the names but she asked and then she sat there and thought and she did on the transcript morning honors good morning my name is michael bear so i represent the cobb county school district and let me ask you question at the outset the same question i asked your colleague how do we review that fact finding the a l j i so that's why we're not giving any deference to the district court's determination on that fact finding is that right i don't think that is clear at that i would have to refer to that case right now you don't follow this rest of my question i'm just trying to get at what do we give clear our deferential review to to the ale j s determination of fact one of the district courts determination of fact based upon her review of the jays record i believe that makes sense law ministry of record it's clear the district was actually citing an allegation from the appellant's complaint and there there is a section that was written by the school district in the following allegations from plaint s complaint reveal the any claims arising outside of the two year statute of limitations should be dismissed after that there are multiple paragraphs showing that these particular paragraphs from the plaintiff's complaint petitioner that point should be dismissed so there was no admission by the district that there was a request for an ip meeting or anything like that that was actually quoting in that brief  quoting the plaintiff's complaint saying that that should be dismissed so any argument that there was an admission by the district itself in a legal briefing is not true  granted extended time to turn in homework and items like that once the student did turn in these assignments then that failing grade would disappear and that's how you ended up with a student who actually ended up excel ing in a very stressful and demanding school program the student was in the wheeler high school magnet program is  school of choice option he you have to apply to get into this program which he did he ended up with very good grades he was involved in a lot of extracurricular activities the judge and the district court itself also neither relied strictly just on looking at grades looking at to two test looking at things such as the s a t or the a c t all of which he did actually did score very well and this was a student who more than had grant access to students to the general curriculum this is someone who more than access a general curriculum he was taking beyond general curriculum classes teachers testified that they did not believe he had any problem focusing on assignments when he was in class he didn't have a problem completing the assignments his quality of work was very good he would come back and complete assignments there were as you know one of the experts testified that this executive functioning this order is an invisible disorder one of the things that would show up to someone who can't follow through on suggestions that is not true for this student he clearly would follow through would come back you complete assignments that set in he ended up with great grades there is a lot of testimony in the record showing you know all the positives of the student you know  he helped students with electronics projects he was a class manager in his electronics classes he didn't have problems starting assignments in class i did a very good job and with good results in those one of his teachers who was with him for three i'm not sure i don't think it's a matter of record but it made may not be because i was just curious i don't remember reading in the record i was curious as to what happened to and i think that there's also testimony that you know some of the actions of turning in homework late was not worrisome to teachers because it was not uncommon in this magnet program having multiple hours of homework a night is not uncommon in this magnet program it's a very strenuous program that is much more difficult much much more difficult than what your average high school kid is in to is going through mr george you told him for three years and saw no problems who spent over a thousand hours with this student  hired him to work with pedals by george i thought that was a very showing example mr joyce testified how dangerous are that soldiering guitar pedals can be very dangerous and requires a lot of focus on you dealing with wiring that you are simply melting metal together this could be dangerous you could easily burn yourself or something else and this was a student who was able to focus and i have a problem doing that i believe that it's important to note that the idea of a has a focus on the need for special education  adverse effect just the fact that he had a d h he had a diagnosis of a d h d does not mean that he needed special education the diagnosis itself adverse effect is only the first prong of whether someone qualifies for special education you must also exhibit a need for special education and that need the focus when that idea is where that need come from well it's do you need specialized instruction other specialized items to let you access the general education do you need for example maybe someone with a listening disability do you need something that can help you actually hear the instruction are you having a problem hearing the instructions therefore you're not able to access the curriculum someone with a d h d do they need to have a test down into smaller segments because they can't focus on taking a test that would be specialized instruction specialized assessment and example of specialized education there making a test in smaller segments this was the testimony this student didn't require that when he did take a test he was able to focus he did a great job he no none of this test were shown during the thing to a smaller amount and he was excel and he was a ninety something percent on some of the standardized tests and of course test he would end up making a zone in the course test that's great on the general curriculum level so even if it was a class that he was taking honors or a p level i believe for one example you had a one class where you know it was the worst grade he had this and that semester he had a seventy something in an a p class a p is the hardest level class you have in high school this student so the end of course test which is great on the general curriculum level and i made a ninety something on that i think the evidence is overwhelming that there was no reason to believe that this student needed special education and he didn't need special education along with other  complements you know he had leadership in the robotics club during one of his projects he developed a specialized battery pack for a small unmanned flight he volunteered at summer science camps he was in the philosophy club he participated in ultimate frisbee league he worked after school this was a very busy kid and who knows what effect that had on his ability to complete homework assignments and as other teachers said it is not uncommon at all for students to have hours of homework in that particular program additionally  states that  impeded the child's right to a fate significantly impeded the parents opportunity to participate in this issue making process regarding the provision of a fate or calls deprivation of educational benefit the appellant's in this matter who are the petitioners below had the burden of proof in this case and they didn't prove there was a need for special education and or that there was any procedural violation that violated his rights and that is under clear air review the numerous factual findings that the administrative law judge made the ministry of law judge made an exhaustive review of this case as felon just stated believe is one hundred pages maybe more or at least  paragraphs of factual findings and unlike what has been asserted in some of the briefs that the administrative law judge did not ignore that the student would have failing grades at certain points did not ignore what the petitioners expert said during the trial these excerpts were placed in there that ministry of law just did make findings on that as well the minister of all judge found that the mother wasn't credible when talking about requesting an ip you can look in the record the judge stated that  they relied solely on their own testimony there was no documentary evidence that they had ever to request an ip or meeting to obtain an i t then and the only evidence showed they request a five a for which they got the five o four looking through was the combinations in that were great also i think it's important to know that freshman year one of the items that the appellant's of claim that they want is training on organizational  and that was a worry of the parents but the parents said no that this might embarrass the student they didn't want him to go and meet with someone to teach him how to organize himself and this was something that you know they claim that the district failed on but it was offered to him in the the freshman year of school at five before meeting overlooked clear signs of disability and were negligent in failing to order testing or that there was no rational justification for not deciding to evaluate i believe that was cited in the briefs but it was a board of education a fake county kentucky versus l  m and it quotes clay t v as walton county school district which is from the middle district of georgia i believe that the evidence i've just talked about all the positives the judge looked at the overall scheme of everything that was going on did not focus just solely on grades and everything showed that this was a student who was excelling and was more than accessing the general curriculum and i believe my time is out so if you don't have any questions thank you very much thank you it's unfair to come into a case late he is the third attorney on this case and so i understand that he can have the facts and correct so i just want to state that mrs suttles training wasn't real training on executive function what the testimony showed in the record in our findings of that movement was a law that he would meet once a week with a student some student who would help him but he didn't have any issues with cognition he had issues where he needed training and executive function and that's what i want to talk about the judge ruled that he was  defined by statute as special education provided through and i design to meet the individual child disabilities of say for example i'm blind and i am gifted and i can make a zombie's but i can't get down the hallway of the school building because i'm blind mobility training well then it's impacting my grades because i'm coming to school late well then i would get an ip and i would get mobility training and i would have goals and objectives and you would decide of a receive faith as to what those goals and objectives were what this john needed was executive function skills he was gifted there are twelve thirteen arguably categories and the idea of eligibility only too would involve someone not being able to really learn that would be mental impairment or specific learning disability being blind doesn't mean i can't learn to the standard and they're trying to apply isn't correct i do also want to say that the senatorial law is very clear the l j is not rule for clear error she's the dale j is written over that's in twenty u s c section fourteen fifteen so i think that that was a misunderstanding of the idea in that in that situation and then you then when you reviewed novo of the a r j you decided differences do so i just want to clear that or well let me just stop at that point because i'm confused now earlier i heard you say that is an irreducible question of fact whether the do browse did or did not do x y and z there's a finding by the a ok so then the clear error applies to our review of the district court's determination on that issue is that how it breaks out i mean either we defer or we don't if we review for clear or we either reviewing here the first is the ail j the second is the district court do we give clear error of you to the determination of one or the other or both on this question about whether the do browse in fact asked with specificity and clarity this court is real one is reviewing the district court it's clear air i believe the l j requires this court to review that i mean that the idea requires this court review the algiers order dinner that's my understanding of the idea is twenty u s c section fourteen fifteen if i may proceed i just want to talk about this emission because it became i will give you all the time you need but i just i'm still unclear it's probably me and i just want you to help me with it the a l j concluded in light of the lack of clarity specificity and some inconsistency in the plaintiff's testimony as well as connor's mother is admitted lack of memory regarding the teacher's names with whom she spoke and the lack of evidence corroborating their testimony the undersigned is not and find the plaintiff's recollection to be credible that's what the a l j said the district judge said i agree with that determination the district judge says the algae balance the testimony of the district's witnesses who testified that the parents had not made the request under the id a against the parents who testified that they had made the request such a balance involves a credibility determination based on a live witness testimony having not had the benefit of witnesses before it the court will not second guess the a l j is findings instead the court will defer to the a l j is credibility defining findings moreover the district court says despite the fact that this court did not have a live witness testimony before it the court agrees with the a l j is conclusion that testimony presented by the plaintiff's lack clarity and specificity was somewhat inconsistent and was not bolstered by any corroborating evidence after a review of the opinion the court finds that's the district court now that it is correct and therefore the a l j was right to limit the plaintiff's claims to the court said do we were view the district courts finding on this point for clear era or do we review what the district court found your denial of do you know because you believe the question that you're asking me is very difficult the clarify what mr de rosa said he said that the that was quoted from our complaint it was but a motion for summary determination as an administrative arena is a motion for summary judgment before district courts in the state courts and so you have to state undisputed facts and so they took our assertion that there had been request for evaluations and made that an undisputed fact and number to his he said it was a number understated fact so i figured that was an admission that they agreed to that so i just wanted to clear that up to talk about exhaustion of five years on the anyway ok so thank you for raising that issue exhaustion is a very important issue and i think the supreme court and frye added some more to it basically what fourteen fifteen  fourteen fifteen l says is that if you are going to seek relief under say section five of fours in this case and that relief can also be available under i d a you've got to see that relief under idea a very good court case and is not is from th court is not cited in the brief as or take a versus the county school district this court set forth in order to go what relief is available the relief that is available is compensatory education reimbursement to parents for payments and sometimes equitable hearing where all the five or four issues were not only raised in the complaint but were also tried that five or four was not appropriate that's one thing i want to argue about and that we put in the evidence he said the fab four had a great accommodations extra times on assignment it did not until after he had filled in twelfth grade it did not what was the five or four really presented a minute to the l j because didn't you object to the consolidation of the claims and then the j says at the end of his opinion just be clear we're only talking about idea  for no two on page two the jason i'm going to consider it but i'm not going to make any findings on it but no absolutely we introduced the five or four educational plans in you look at our findings in fact and conclusions of law we argued they were totally ineffective the why the objection  the consolidation to some clear because they're not paid the georgia department of education has to pay them here five or four complaints they don't pay them back contract any more they want here fiber for a fiver for hearing and and what the district court said is we had to have a in effect a missed date is their special ed director supervisor testified they were not effective they were he was not successful with them they did not teach him skills that he needed to be taught that we have so many admissions in this in the family and the families if that what you're looking at is you're looking at the ale j's final decision there is almost a carbon copy of the school districts compare it to our final decision and you will see the abundance of evidence in the record that was omitted and these are actual admissions by the school district we got that he said that he said the case were you know what triggers their their their requirement to evaluate suspecting a disability then middy had a disability that was severe and lifelong in their own five or four plants when the child was in ninth grade like to come back to something you just said in response to the judge knew some of the after contesting the impartiality of the five zero four hearing did you  your request for a five hour for hearing we did withdraw not not and idea a proceeding because this judge rules she would not she would not hear the idea matter so what we did is then the school district went forward to provide a five or four separate hearing not an idea hearing separate they first selected someone who was a former special ed director and we said we can't have him we asked for right procedure so we could get subpoenas they wouldn't give us any rights we couldn't get procedures we until nine am tomorrow morning