{
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    "judges": [
      "Judges EAGLES and GREENE concur."
    ],
    "parties": [
      "BEAUFORT COUNTY SCHOOLS, Appellee v. JANET ROACH, Appellant"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe issue presented by this appeal is whether the trial court erred in reversing the decision of the State Board of Education concluding that BCS failed to provide a free appropriate education for petitioner\u2019s daughter, Ginger Goforth, who is a behaviorally-emotionally handicapped (\u201cBEH\u201d) child.\nThis case was first heard by an Administrative Law Judge (\u201cALJ\u201d) who made the following findings of fact: In August of 1987, Ginger Goforth was enrolled in the BCS system at Bath High School and placed in a self-contained BEH class. In October of 1987, following a violent episode, petitioner committed Ginger to Brynn Marr Hospital with the help of the Tideland Mental Health Center. On 9 December 1987, Ginger was moved directly from Brynn Marr to The Whitaker School, a school in Granville County for children who exhibit behavior that could be considered dangerous to themselves or others. In late 1988, The Whitaker School determined that Ginger\u2019s discharge was necessary and convened a community planning conference for 5 January 1989.\nThe principal of Bath High School and the Program Administrator for Exceptional Children Programs of BCS, Rosa Beamon, both attended this meeting. At this meeting, the principal expressed his opinion that because of Ginger\u2019s previous violent behavior at Bath High School in 1987, it would not be a good idea to return her to this school. Beamon stated that BCS could provide home-bound services for Ginger. A teacher and a unit supervisor of The Whitaker School expressed their opinions, however, that a self-contained BEH class or day treatment, with group placement as a back-up, would be a less restrictive way to meet Ginger\u2019s needs.\nOn 22 February 1989, The Whitaker School discharged Ginger, and she returned to Beaufort County. On 1 March 1989, Rosa Beamon mailed out notices of a meeting of the School Based Committee to be held 6 March 1989 for the purpose of planning Ginger\u2019s placement. Although informed of this meeting, petitioner did not attend.\nAt this meeting, \u201c[i]t was decided by those present that when and if the Petitioner contacted the school to enroll Ginger that it be suggested that she have Homebound Services or limited time at school with a teacher assistant and much support from the Tideland Mental Health Center. No [Individualized Educational Program (\u201cIEp\u201d)] for Ginger was developed at this meeting.\u201d On 27 March 1989, the School Based Committee held another meeting.\nThe petitioner appeared at this meeting along with a representative from The Governor\u2019s Advocacy Council, and petitioner \u201cwas advised that a teacher assistant had been employed by [BCS] to work with Ginger on her return to Bath High School in a BEH self-contained classroom setting.\u201d Petitioner stated that she did not want Ginger at home. Also at this meeting, BCS began preparing an IEP for Ginger.\nDuring this process, on 10 April 1989, without giving prior notice to BCS, petitioner placed Ginger in NOVA, a private residential treatment center in Lenoir County. At NOVA, Ginger\u2019s teacher was provided by the Lenoir County Schools. BCS did not thereafter complete the IEP.\nSubsequently, funding by Tideland Mental Health Center for Ginger to attend NOVA was to run through September, 1989, and on 15 August 1989, the Tideland Mental Health Center called a meeting to discuss the fact that funding for Ginger\u2019s placement at NOVA was ending. Rosa Beamon and Dan Winslow, School Psychologist for BCS, attended this meeting. At the meeting, Beamon reported that BCS could provide education but not treatment for Ginger. She stated that BCS\u2019 program would consist of a resource or full-time BEH placement depending on Ginger\u2019s need and a full-time teacher assistant at Northside High School. As found by the ALJ, \u201c[s]hortly after this meeting the petition for a contested case hearing was filed[,] and Ginger has remained at NOVA.\u201d\nBased on these facts, the ALJ concluded that BCS failed to provide a free appropriate education fbr Ginger Goforth \u201cby not fully developing an IEP and presenting it in writing to Petitioner along with her procedural rights and safeguards as required\u201d and recommended that BCS provide an appropriate education for Ginger and \u201creimburse Petitioner for reasonable private placement costs from February 22, 1989, until it does so.\u201d Subsequently, the State Board of Education adopted the findings and conclusions of the ALJ.\nOn petition for judicial review, the trial court found, however, that BCS \u201chad no legal obligation to fully develope [sic] an IEP for Ginger Goforth and present it to the [petitioner] along with her procedural rights and safeguards,\u201d that there was \u201cno substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted within the meaning of G.S. 150B-51(b)(5) to support a finding of fact that [BCS had] not properly offered or provided an appropriate education for Ginger Goforth,\u201d and reversed the Board\u2019s decision. On appeal, petitioner contends that the trial court erred in its finding that BCS was under no legal obligation to fully develop an IEP for Ginger and present it to petitioner and that the trial court exceeded its scope of review by making additional findings of fact not contained in the final decision of the Board and reversing the Board\u2019s decision.\nOur standard of review over an agency\u2019s decision is governed by N.C. Gen. Stat. \u00a7 150B-51(b), \u201cthe same scope of review utilized by superior courts.\u201d Clay v. Employment Security Commission of N.C., 111 N.C. App. 599, 602, 432 S.E.2d 873, 875 (1993), disc. review allowed, 335 N.C. 553, \u2014 S.E.2d \u2014 (1994); Jarrett v. N.C. Dep\u2019t of Cultural Resources, 101 N.C. App. 475, 478, 400 S.E.2d 66, 68 (1991).\nUnder N.C. Gen. Stat. \u00a7 150B-51(b) (1991), a court may \u201creverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced . . . .\u201d Petitioner\u2019s rights may have been prejudiced under the statute if the agency\u2019s findings, inferences, conclusions, or decisions are:\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 150B-51(b) (1991).\n\u201cAgency findings of fact are conclusive if, upon review of the whole record, they are supported by competent, material, and substantial evidence.\u201d In re Humana Hosp. Corp. v. North Carolina Dep\u2019t of Human Resources, 81 N.C. App. 628, 633, 345 S.E.2d 235, 238 (1986). \u201c[T]he Superior Court is without authority to make findings at variance with the findings of the [agency] when the findings of the [agency] are supported by competent, material and substantial evidence.\u201d In re Appeal of Amp, Inc., 287 N.C. 547, 561, 215 S.E.2d 752, 761 (1975). However, \u201c[w]here the reviewing court determines that the findings of the agency are not supported by substantial evidence, the [C]ourt may make findings at variance with those of the agency.\u201d Scroggs v. North Carolina Criminal Justice Educ. and Training Standards Comm\u2019n, 101 N.C. App. 699, 702-03, 400 S.E.2d 742, 745 (1991).\nFirst we must determine whether the trial court erred in finding that BCS was under no legal obligation to fully develop an IEP for Ginger. The federal \u201cEducation for All Handicapped Children Act of 1975\u201d (the \u201cEHCA\u201d), 20 U.S.C. \u00a7 1400, et seq., which Act is now entitled \u201cIndividuals with Disabilities Education Act,\u201d was enacted to promote the education of children with special needs. Specifically, the EHCA creates a state grant program to aid states in educating handicapped children. The EHCA requires all states receiving funds under this Act to provide a \u201cfree appropriate public education\u201d for all children with disabilities in the state. 20 U.S.C. \u00a7 1412.\nNorth Carolina receives funds under the EHCA and is, therefore, required to provide a free appropriate public education to children with disabilities living in the State. Article 9 of Chapter 115C of the North Carolina General Statutes (\u201cArticle 9\u201d) establishes policies in accordance with the EHCA to provide this education. Article 9 states, \u201c[e]ach local educational agency shall provide free appropriate special education and related services in accordance with the provisions of this Article for all children with special needs who are residents of, or whose parents or guardians are residents of, the agency\u2019s district, beginning with children aged five.\u201d N.C. Gen. Stat. \u00a7 115C-110(i).\nIn the present case, the issue before us is whether the trial court erred in reversing the Board\u2019s decision that BCS failed to provide Ginger with a free appropriate education since her release from The Whitaker School on 22 February 1989.\nOn 22 February 1989, N.C. Gen. Stat. \u00a7 115C-113(c) (1987) stated that once a child is referred for diagnosis and evaluation,\n[wjithin 30 days of such referral, the local educational agency shall send a written notice to the parents or guardian describing the evaluation procedure to be followed and requesting consent for the evaluation. If the parents or guardian consent, the diagnosis and evaluation may be undertaken; if they do not, the local educational agency may obtain a due process hearing on the failure of the parent to consent under G.S. 115C-116.\nThe local educational agency shall provide or cause to be provided a diagnosis and evaluation appropriate to the needs of the child within 30 calendar days after sending the notice unless the parents or guardian have objected to such evaluation. At the end of such diagnosis and evaluation, the local educational agency shall offer a proposal for an educational program appropriate to the child\u2019s needs. If this proposal calls for a special educational program, it shall set forth the specific benefits expected from such a program, a method for monitoring the benefits, and a statement regarding conditions which will be considered indicative of the child\u2019s readiness for participation in regular classes.\nFurther, at the time of Ginger\u2019s release from The Whitaker School, N.C. Gen. Stat. \u00a7 115C-113(f) (1987) stated:\nEach local educational agency shall prepare individualized educational programs for all children found to be children with special needs .... The individualized educational program shall be developed in conformity with Public Law 94-142 and the implementing regulations issued by the United States Department of Education and shall be implemented in conformity with timeliness set by that Department.\nPublic-Law 94-142 was codified into the EHCA. At the time of Ginger\u2019s release from The Whitaker School, the federal regulations for the EHCA pertaining to the preparation and implementation of an IEP stated:\n(b) An individualized education program must:\n(1) Be in effect before special education and related services are provided to a child; and\n(2) Be implemented as soon as possible following the meetings under \u00a7 300.343.\n34 C.F.R. \u00a7 300.342(b). Under 34 C.F.R. \u00a7 300.343, \u201c[e]ach public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising a handicapped child\u2019s [IEP].\u201d 34 C.F.R. \u00a7 300.343(a). \u201c[A] meeting must be held within thirty calendar days of a determination that the child needs special education and related services.\u201d 34 C.F.R. \u00a7 300.343(c).\n\u201cEach public agency shall take steps to insure that one or both of the parents of the handicapped child are present at each meeting or are afforded the opportunity to participate, including:\u201d notifying parents of the meeting and scheduling meetings at a mutually agreed upon time and place. 34 C.F.R. \u00a7 300.345(a). \u201cA meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend.\u201d 34 C.F.R. \u00a7 300.345(d). Further, \u201c[t]he public agency shall give the parent, on request, a copy of the [IEP].\u201d 34 C.F.R. \u00a7 300.345(f); See also N.C. Gen. Stat. \u00a7 115C-113(d) (1987) (\u201clocal educational agency shall furnish the results, findings, and proposals based on the diagnosis and evaluation to the parents or guardian in writing . . . .\u201d).\nOur review of the applicable provisions of Article 9 and the EHCA and its regulations in effect at the time of Ginger\u2019s release from The Whitaker School shows no provision whereby a local educational agency is relieved of its duty to create an IEP for a child whose parents reside in the agency\u2019s district once that child has been determined to be a child with special needs. In the present case, it is undisputed that BCS is a \u201clocal educational agency\u201d and that petitioner, the parent of Ginger, is a resident of BCS\u2019 district. It is also undisputed that at the time of Ginger\u2019s release from The Whitaker School on 22 February 1989, Ginger had been determined to be a child with special needs. Thus, based on our reading of the statute and federal regulations, BCS had a legal obligation to fully develop an IEP for Ginger following her release from The Whitaker School, to present the IEP to petitioner upon petitioner\u2019s request, and to present BCS\u2019s proposals in writing to petitioner, regardless of petitioner\u2019s request; the trial court erred, therefore, in its finding that BCS was under no legal obligation to do so.\nThe determination that BCS had a duty to fully develop an IEP for Ginger and that BCS failed to do so is not, however, dispositive of this case. The failure to fully develop an IEP does not necessarily constitute a failure to provide a free appropriate education under the statute or the EHCA.\nThe facts of this case as found by the ALJ and adopted by the Board show that Ginger was released from The Whitaker School on 22 February 1989. The Board found that before the expiration of thirty days, on 1 March 1989, BCS informed petitioner that it was going to hold a meeting on 6 March 1989 to determine Ginger\u2019s educational needs; petitioner chose, however, not to attend. Then on 27 March 1989, BCS held another meeting which petitioner did attend. At this meeting, BCS began to create an IEP for Ginger with petitioner. Before BCS completed the IEP, however, on 10 April 1989, petitioner chose to enroll Ginger in NOVA, a private residential treatment center in Kinston, N.C., where, according to the evidence, Lenoir County School System developed an IEP for Ginger, and BCS, therefore, stopped preparing an IEP for her. Petitioner\u2019s act of placing Ginger in NOVA effectively prevented BCS from implementing an IEP for Ginger \u201cas soon as possible.\u201d\nSubsequently, on 15 August 1989, Tideland Mental Health Center called a meeting to discuss the fact that Ginger\u2019s funding at NOVA was running out. At this time, N.C. Gen. Stat. \u00a7 115C-113(c) had been amended effective 21 June 1989, which provision is still in effect and states that once a child is referred for diagnosis and evaluation,\n[t]he local educational agency shall provide or cause to be provided, as soon as possible after receiving consent for evaluation, a diagnosis and evaluation appropriate to the needs of the child unless the parents or guardian have objected to such evaluation. If at the conclusion of the evaluation, the child is determined to be a child with special needs, the local educational agency shall within 30 calendar days convene an [IEP] committee. The purpose of the meeting shall be to propose the special education and related services for the child. . . . The proposal shall set forth the specific benefits expected from such a program, a method for monitoring the benefits, and a statement regarding conditions which will be considered indicative of the child\u2019s readiness for participation in regular classes.\nAfter an initial referral is made, the provision of special education and related services shall be implemented within 90 calendar days to eligible students, unless the parents or guardian refuse to consent to evaluation or placement or the parent or local educational agency requests a due process hearing.\nFurther, N.C. Gen. Stat. \u00a7 115C-113(d) was amended effective 21 June 1989, which provision is still in effect, and states,\n[t]he local educational agency shall furnish the results, findings, and proposals, as described in the [IEP] or group educational program based on the diagnosis and evaluation to the parents or guardian in writing . . . prior to the parent or guardian giving consent for initial placement in special education and related services.\nIn the present case, as found by the Board, Rosa Beamon and a School Psychologist for BCS were invited to and attended the meeting of 15 August 1989 called by Tideland Mental Health Center. When asked what type of education BCS could provide for Ginger, Beamon stated that \u201cthe Beaufort County Schools program would consist of a resource or full-time BEH placement depending on Ginger\u2019s need and a full-time teacher assistant at Northside High School.\u201d (Emphasis added.) \u201cShortly after this meeting the petition for a contested case hearing [in which petitioner alleged that BCS had failed to provide a free appropriate public education for Ginger] was filed and Ginger has remained at NOVA.\u201d\nOur review of the amendments to Article 9 again shows no provision whereby a local educational agency is relieved of its duty to create an IEP for a child whose parents reside in the agency\u2019s district once that child has been determined to be a child with special needs. Thus, BCS was still under the obligation to fully develop an IEP for Ginger but with additional time constraints.\nUnder Article 9 as amended, once a child has been referred for a diagnosis and evaluation, the local educational agency shall, \u201cas soon as possible after receiving consent for evaluation,\u201d provide or cause to be provided a diagnosis and evaluation of the child. N.C. Gen. Stat. \u00a7 115C-113(c) (1991). If the child is determined to be a child with special needs, the local educational agency is to convene an IEP committee within thirty calendar days after such determination. N.C. Gen. Stat. \u00a7 115C-113(c) (1991). The local educational agency is to develop an IEP, furnish the results as described in the IEP to the child\u2019s parent or guardian in writing, and implement the special education and related services within ninety calendar days from the initial referral. N.C. Gen. Stat. \u00a7 115C-113(c), (d) and (f) (1991).\nOur review of the evidence shows that BCS followed the correct procedure to provide Ginger with a free appropriate education upon her release from The Whitaker School. The process for providing Ginger with a free appropriate education was, however, interrupted by petitioner\u2019s act of placing Ginger into another school. Further, at the time Tideland Mental Health Center called the meeting to discuss the fact that Ginger\u2019s funding to attend NOVA was ending, Ginger was still enrolled at NOVA as a student, and the Board made no findings as to whether petitioner contacted BCS again after this meeting before filing this action.\nBased on these facts, we conclude that there is no evidence to support a finding or conclusion that BCS failed to provide a free appropriate education. Although the record reveals subsequent discussion among the parties as funding for NOVA ran out, it is not clear from the record or issues presented that any subsequent acts of BCS constituted a failure to provide a free appropriate education.\nThus, the precipitating factor that led to a breakdown of BCS following the procedure outlined by Article 9 and the federal regulations for the EHCA for providing Ginger with a free appropriate education was petitioner\u2019s own act of placing Ginger into another school system. Based on our review of the facts as found by the Board and as supported by sufficient and competent evidence, we conclude that insufficient evidence exists to support the Board\u2019s conclusion that BCS failed to provide a free appropriate education for Ginger.\nAccordingly, insofar as the trial court reversed the Board\u2019s conclusion that BCS failed to provide a free appropriate education for Ginger, we affirm the order of the trial court. Insofar as the trial court concluded that BCS was under no legal obligation to prepare an IEP for Ginger and present it to petitioner, however, we reverse the order of the trial court and remand this case for entry of an order requiring BCS to prepare an IEP for Ginger, to present the results of the IEP to petitioner pursuant to the provisions of Article 9, and to implement that IEP within 90 calendar days absent one of the factors listed in G.S. 115C-113(c) taking place.\nAffirmed in part, reversed and remanded in part.\nJudges EAGLES and GREENE concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Lee E. Knott, Jr. for appellee Beaufort County Schools.",
      "Governor\u2019s Advocacy Council for Persons with Disabilities, by Judy J. Burke, Augustus B. Elkins, II and Barbara A. Jackson, for appellant."
    ],
    "corrections": "",
    "head_matter": "BEAUFORT COUNTY SCHOOLS, Appellee v. JANET ROACH, Appellant\nNo. 922SC1117\n(Filed 19 April 1994)\n1. Schools \u00a7 113 (NCI4th)\u2014 child with special needs \u2014free appropriate public education \u2014duty of system to develop individualized educational plan\nThe trial court erred in determining that respondent was under no legal obligation to fully develop an Individualized Educational Program for petitioner\u2019s daughter, to present an IEP to petitioner upon request, and to present respondent\u2019s proposals in writing to petitioner, regardless of petitioner\u2019s request, since it was undisputed that respondent was a local educational agency, petitioner was a resident of respondent\u2019s district, and petitioner\u2019s child was determined to be a child with special needs. N.C.G.S. \u00a7 115C-113; 20 U.S.C. \u00a7 1400.\nAm Jur 2d, Schools \u00a7\u00a7 298 et seq.\nRequisite conditions and appropriate factors affecting educational placement of handicapped children. 23 ALR4th 740.\n2. Schools \u00a7 227 (NCI4th)\u2014 child with special needs \u2014 free appropriate public education \u2014no failure by school system to provide\nThere was no evidence to support a finding or conclusion that respondent failed in its statutory duty to provide a free appropriate education for petitioner\u2019s child who had been determined to be a child with special needs, since the precipitating factor which led to a breakdown in respondent\u2019s following the procedure outlined by N.C.G.S. Article 9, Chapter 115C and the federal regulations for the \u201cEducation for All Handicapped Children Act of 1975\u201d for providing the child with a free appropriate public education was petitioner\u2019s own act of placing the child in another school system.\nAm Jur 2d, Schools \u00a7\u00a7 298 et seq.\nRequisite conditions and appropriate factors affecting educational placement of handicapped children. 23 ALR4th 740.\nAppeal by Petitioner Janet Roach from order entered 8 May 1992 by Judge W. Russell Duke, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 6 October 1993.\nOn 26 September 1989, Petitioner Janet Roach filed a petition for a contested case hearing in the Office of Administrative Hearings against Respondent Beaufort County Schools (\u201cBCS\u201d) alleging that Beaufort County Schools had \u201cfailed to provide a free appropriate public education for [her] daughter, Ginger Goforth\u201d pursuant to Article 9 of Chapter 115C of the North Carolina General Statutes. Following a hearing, the Administrative Law Judge on 25 July 1990 filed his recommended decision finding that BCS had \u201cnot properly offered or provided an appropriate education for Ginger\u201d and ordered BCS to provide Ginger Goforth with an appropriate education and reimburse petitioner for reasonable private placement costs from 22 February 1989 until the time BCS provides such education. On 26 September 1990, the State Board of Education, which was the agency given the authority to make the final decision in an action brought pursuant to N.C. Gen. Stat. \u00a7 115C-116 and Article 3 of Chapter 150B prior to 1 October 1990, filed its final decision in this action adopting the findings of fact and conclusions of law made by the administrative law judge in his recommended decision.\nBCS filed a petition for judicial review of this decision in Beaufort County Superior Court pursuant to Article 4 of Chapter 150B. After making additional findings of fact, on 8 May 1992, Judge W. Russell Duke, Jr. entered an order reversing the decision of the State Board of Education. From this order, petitioner appeals.\nLee E. Knott, Jr. for appellee Beaufort County Schools.\nGovernor\u2019s Advocacy Council for Persons with Disabilities, by Judy J. Burke, Augustus B. Elkins, II and Barbara A. Jackson, for appellant."
  },
  "file_name": "0330-01",
  "first_page_order": 358,
  "last_page_order": 369
}