                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 11 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



H. BERRY, by and through his Guardian            No. 08-55693
Ad Litem Penny Berry; et al.,
                                                 D.C. No. 2:04-cv-08572-FMC-SS
             Plaintiffs - Appellees,

  v.                                             MEMORANDUM *

LAS VIRGENES UNIFIED SCHOOL
DISTRICT,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

                             Submitted March 2, 2010
                               Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, ** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
      The Las Virgenes Unified School District (School District) appeals the

district court’s determination that it violated the procedural requirements of the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., by

predetermining the placement of an autistic boy, H.B., prior to his individualized

education program (IEP) meeting. We previously considered this case and

remanded so that the district court could make findings regarding the School

District’s intent or state of mind prior to and during the IEP meeting. H.B. v. Las

Virgenes Unified Sch. Dist., 239 F. App’x 342 (9th Cir. 2007). The court held an

evidentiary hearing on remand, and made factual determinations that we review for

clear error. See Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 588 (9th Cir. 1992).

Seeing none, we affirm.

      Based on testimony from School District representatives and the child’s

mother at the evidentiary hearing as well as the entire record, the district court

found that the decision to transfer H.B. from his private placement to the district

had been made before the meeting was held. It specifically found district

representatives’ testimony about being open to considering alternative placements

incredible, and found credible the mother’s testimony that her minimal

participation was due to futility. These findings are not clearly erroneous.

Applying the legal standard endorsed in our prior disposition, the district court

concluded that H.B.’s placement was predetermined. This being so, the procedural
requirements of the IDEA were violated, and the hearing officer’s decision was

properly reversed.

      AFFIRMED.
