Braydon K. v. Douglas Cnty. Sch. Dist. RE-1

BRAYDON K., by and through his parents and next friends,MARK K. and MICHELLE K., Plaintiffs, v. DOUGLAS COUNTY SCHOOL DISTRICT RE-1, Defendant.

DOUGLAS COUNTY SCHOOL DISTRICT RE-1, Plaintiff, v. B.K., a minor, by and through his parents and next friends,MARK K. and MICHELLE K., Defendants.

Civil Action No. 19-cv-01273-PAB-KLM

C/w Civil Action No. 19-cv-01694-PAB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 29, 2020

Chief Judge Philip A. Brimmer

ORDER

This matter is before the Court on the Complaint [Docket No. 1]¹ of the Douglas County School District RE-1 ("the school district") and its Opening Brief [Docket No.35].² In its complaint, the school district requests that the Court reverse two decisions of the State of Colorado, Office of Administrative Courts: (1) a decision that the school district failed to provide a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., to plaintiff Braydon K; and (2) a decision that the school district did not provide Braydon's parents with meaningful participation in developing his individualized educational program ("IEP"). Docket No. 1 at 12.³ In its appellate brief, the school district only raises arguments concerning whether the school district provided a FAPE. See Docket No. 35. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A).

I. FACTUAL BACKGROUND⁴

Braydon K. was born in 2004. AR at 248.⁵ When Braydon was four years old, he was found unattended on a city bus. AR at 1075. He was placed in foster care with Michelle K. and Mark K ("Braydon's parents"), who eventually adopted him. Id. Before being placed in the care of his parents, Braydon had experienced homelessness andneglect. AR at 1076. Within the first few years of having custody, Braydon's parents submitted him to a psychological evaluation. AR at 1079. Braydon was diagnosed with attention deficit hyperactivity disorder ("ADHD"), post-traumatic stress disorder ("PTSD"), and dyspraxia (impaired motor condition). AR at 1079-80.

From early on, Braydon had difficulty with boundaries and was defiant when faced with authority. AR at 1077-78. In the fifth and sixth grades, Braydon's behavioral issues escalated. AR at 1078, 1080. At home, he was stealing from his family and from the grocery store, and he ran away from home more than once. AR at 1078, 1086. At school, he was insubordinate and disruptive to the point where teachers could not instruct other students when he was present. AR at 1083, 1085. Due to these behavioral issues, Braydon began attending school in a shortened school day. AR at 1083-84.

For the 2016-17 school year, Braydon's parents enrolled him in a special education program at the Front Range Christian School ("Front Range"). AR at 1088-89. He continued to engage in disruptive behaviors and was not permitted to return to Front Range the following school year. Id. In the summer of 2017, Braydon's therapist, Jennifer Platt, recommended that Braydon's parents meet with Rob Metzler, an educational consultant. AR at 1105-06. Mr. Metzler recommended that Braydon undergo a thirty-day evaluation at Northwest Passage, an assessment facility in Frederic, Wisconsin. AR at 1053-54. At Northwest Passage, Braydon was examined by a clinical psychologist, a child and family therapist, a psychiatric nurse practitioner, and a developmental pediatrician. AR at 1183. A neuropsychological evaluationplaced Braydon's intellectual abilities in the low-average range. AR at 274. Emotionally, he showed signs of hyperactivity, somatization, attention problems, and mild to moderate anxiety, depression, and aggression. AR at 276. Braydon was diagnosed with disinhibited social engagement disorder, ADHD, and an anxiety disorder that manifests in nervousness, worrying, fearfulness, and extreme emotional sensitivity, as well as a developmental coordination disorder that prevents him from staying on task and leads to severe difficulty tolerating emotional distress. AR at 276-77. The evaluation indicated that Braydon "needs firm, consistent, and concrete guidelines with immediate positive and negative consequences." AR at 278. The evaluation recommended "a structured environment" for Braydon "that provides clear expectations for his behavior." Id. Northwest Passage's Child and Family Assessment recommended that "Braydon reside in an emotionally neutral environment that can be firm, yet calm when providing redirections in a non-critical manner." AR at 265.⁶ Northwest Passage further recommended "milieu therapy," which is structured, consistent therapy "with integrated therapeutic interventions with [in-the-moment] training opportunities." AR at 265. It indicated that Braydon needed caregivers who could provide consistent supervision and who could model healthy interpersonal behaviors, such as boundary setting, effective communication, consistency, patience, and support. Id. The assessment did not include any education-specific findings. AR at 262-66. In the Northwest Passage psychiatric progress note, the nurse practitioneropined that "Braydon requires a therapeutic residential program for ongoing mental health care." AR at 252. The noted benefits of the residential program were that it would provide a higher level of medication management as well as constant supervision to determine the efficacy of the medications. Id. Further, the program would provide an environment where Braydon could identify and learn skills and then practice using them in his living environment. Id.

In Northwest Passage's assessment team summary, it was recommended that, "[a]t this time," Braydon "receive intensive services in a therapeutic residential program." Id. Mr. Metzler presented Braydon's parents with a list of schools that he believed might appropriately serve Braydon's needs. AR at 1100-01. One of the schools listed was the Wediko School in Windsor, New Hampshire ("Wediko"). Id. Wediko provides a highly structured environment that employs the recommended milieu approach in which every minute of the day has therapeutic value. AR at 1480.

Braydon's parents filled out an application for Braydon to attend Wediko. AR at 1118-19. The application process involved an interview with Braydon's parents and a half-day interview and meeting with Braydon. Id. Because Braydon's parents had not yet secured an alternative placement for Braydon, they re-enrolled Braydon in the school district effective August 8, 2017. AR at 218, 1103. They shared the Northwest Passage assessment with the school district for purposes of developing a new IEP. AR at 1105-07. In the meantime, on August 15, 2017, Wediko informed Braydon's parents that it had a spot available for Braydon. AR at 1103. Braydon started at the school onAugust 21, 2017. AR at 1454.⁷

Braydon had a difficult time adjusting to his placement at Wediko. AR at 1415. He was kicking, pushing, and elbowing other students and exposed himself to staff on multiple occasions. AR at 1415-16. Mr. Russell Bloch, the senior clinical supervisor at Wediko, testified at the hearing that this behavior led to Braydon being physically restrained, on average, more than other students. AR at 1421-22. Each time that a student needs to be physically restrained or engaged in "extreme behavior," Wediko prepares a critical incident report ("CIR") documenting the event. AR at 1421. Mr. Bloch testified that Braydon acquired approximately five times the number of CIRs than is typical for other Wediko students, and that most of Braydon's CIRs resulted from behavior outside of school hours. AR at 1422. Of thirty-one CIRs recorded between August 22, 2017 and January 23, 2018, only one occurred during school hours. AR at 164-67.⁸ From "the end of January 2018" until April 10, 2018, six additional CIRs were recorded, five of which occurred outside of school hours. AR at 197.

Wediko took several steps to support Braydon's educational progress. Tobias Iselin, the chief administrator of Wediko, testified that Braydon and a small number of other students stay in a single classroom with a small number of other students, where teachers come to teach them, as opposed to those students going from classroom toclassroom like other Wediko students. AR at 1476-77. Mr. Bloch indicated in his testimony that "Braydon essentially requires constant adult attention," but that the attention need not be one-on-one. AR at 1429.

The evidence establishes that Braydon has experienced "measurable progress" at Wediko since his enrollment. AR at 1440. Mr. Bloch testified that, compared to when he started at Wediko, Braydon displays fewer extreme behaviors, has fewer verbal outbursts, and has been able to maintain friendships with other students. AR at 1413. Mr. Iselin testified that Wediko has "seen the intensity of [Braydon's] behaviors in the classroom reduced" and has "seen him be able to respond better to teachers." AR at 1483. Mr. Iselin explained that behavior that initially would have required Braydon to leave the classroom may now just require a reset back to his desk area. Id. However, Mr. Iselin testified that Braydon experiences a regression in these skills when he leaves the classroom and, the longer that he is away from a structured environment, the more behavioral issues resurface. AR at 1484; see also AR at 1414 (Mr. Bloch testifying that they "see regression after home visits"). Mr. Bloch stated in his testimony that he believes Braydon requires a residential treatment program in order to "receive a basic education, as well as to just be able to have some of the basic kind of enrichment experiences that one would want for every kid." AR at 1437-38. Mr. Iselin testified that he cannot "have a definitive answer" as to what environment Braydon requires as he has only seen Braydon as a residential student. AR at 1485-86. He stated that Braydon "definitely . . . needs a highly structured environment to access the current...