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A.H. v. Independence Sch. District

Court of Appeals of Missouri, Western District, Second Division

April 7, 2015

A.H., a Minor, by and through her Grandmother and Next Friend, SANDRA D'AVIS, Appellant,

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Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Robert M. Schieber, Judge.

For Appellant: Robin K. Carlson and William Vandivort, Kansas City, MO.

For Respondent: Duane A. Martin and Thomas C. Smith, Columbia, MO.

Karen King Mitchell, Judge. Anthony Rex Gabbert, Presiding Judge, and Joseph M. Ellis, Judge, concur.


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Karen King Mitchell, Judge

Sandra D'Avis filed a due process complaint on behalf of her granddaughter, protesting the Independence School District's (District) denial of special education services under the Individuals with Disabilities Education Act (IDEA). The hearing panel dismissed the complaint because it was not filed while D'Avis's granddaughter attended the District. We affirm.


D'Avis is the grandmother and guardian of A.H., a school-aged child who was born prematurely. Complications from A.H.'s premature birth have led to a number of health issues, including lung, vision, and hearing problems. These problems have, at various times, affected A.H.'s ability to learn in the classroom environment.

In the fall of 2009, A.H. attended a Head Start program at Hanthorn Early Childhood Center, a preschool in the District. While at Hanthorn, A.H. was found eligible for services under the IDEA.[1] She received an Individualized Educational Program (IEP) that included special education services for speech, occupational therapy, physical therapy, and door-to-door transportation to and from school.

In the 2010-11 school year, A.H. attended kindergarten at Sugar Creek Elementary, a District school. At the beginning of the year, A.H. continued receiving all services she had received at Hanthorn, with the exception of door-to-door transportation. Because A.H.'s IEP had expired, an evaluation team met in November of 2010 to conduct an evaluation of A.H.'s special education eligibility and needs. The team determined that A.H. no longer qualified for services because her educational achievement was commensurate with her ability without special education services. A.H. has not received special education services since this determination.[2]

Following the determination, D'Avis requested an independent evaluation of A.H. in order to determine whether she qualified for services under the IDEA. The District agreed, and paid for independent evaluations " in the areas of Vision, General Intelligence and Memory, Adaptive Behavior, Motor, . . . and Speech." On June 30, 2011, following the additional testing, the District issued a report determining that A.H. did not qualify for services under IDEA.

On August 16, 2011, A.H. began attending Nativity of Mary, a private school that has no affiliation with the District, but lies within the District's geographical boundaries. A.H. attended Nativity of Mary until 2014, when A.H. began attending Horizon Academy, a private school located in Roeland Park, Kansas, outside the geographic boundaries of the District.

On August 25, nine days after A.H. started school at Nativity of Mary, D'Avis filed a due process complaint with the Department of Elementary and Secondary Education (DESE), challenging the District's determination during the previous year that A.H. was not entitled to services. D'Avis subsequently filed two amended complaints. DESE convened a

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three-member panel to hear the matter.[3] The complaints were not the picture of clarity, but the panel interpreting D'Avis's complaints determined that the issues for review were whether the District erred either: (1) in its November 15, 2010 determination that A.H. did not qualify for special education services; or (2) in its June 30, 2011 determination following the additional testing, that A.H. did not qualify for services. D'Avis cited the District's " [o]ffering only 3 accommodations and no door to door services" as the " two main reasons" for filing her complaint. D'Avis requested that the District either pay for placement in private school and provide occupational and physical therapy services to A.H. during that placement, or place A.H. in a school within the District with door-to-door transportation and other special education services.

Before the hearing, the District filed a Motion to Dismiss the complaint, arguing that A.H.'s enrollment in private school before filing the complaint barred the action under federal authority. The hearing panel ordered the hearing bifurcated in order to first hear testimony and argument on the District's Motion to Dismiss.[4] After two days of evidence, the panel agreed with the District that, because A.H. withdrew from the District before filing her due process complaint, her claim was barred.

The Circuit Court of Jackson County affirmed the hearing panel's decision. D'Avis timely appealed.

Standard of Review

" In an appeal following judicial review of an agency's administrative action, [an appellate court] reviews the decision of the agency, not the circuit court." TAP Pharm. Prods., Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140, 141 (Mo. banc 2007). Under section 536.140.2,[5] our review

involves a determination of whether the agency's action: is in violation of constitutional provisions; is in excess of the statutory authority of the agency; is unsupported by competent and substantial evidence on the record; is otherwise unauthorized by law; is made upon unlawful procedure or without a fair ...

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