                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAY 27 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BUTTE SCHOOL DISTRICT NO. 1,                     No.   19-35134

              Plaintiff-Appellee,                D.C. No. 2:14-cv-00060-SEH

 v.
                                                 MEMORANDUM*
C.S.; STUART MCCARVEL, in his
capacity as originator of the C.S. due
process complaint,

              Defendants-Appellants.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                        Argued and Submitted May 11, 2020
                                 Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CARDONE,** District
Judge.

      Appellants C.S. and his care giver, Stuart McCarvel, challenge the district

court’s decision reversing a hearing officer’s conclusion that appellee Butte School

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
District No. 1 (BSD) failed to provide C.S. a free appropriate public education

(FAPE) under the Individuals with Disabilities Education Improvement Act of

2007 (IDEA) during his junior year of high school, but did provide a FAPE during

his senior year. The district court held that C.S. was not denied a FAPE during

either school year. C.S. and McCarvel also challenge several evidentiary rulings

made by the district court before and during the four-day evidentiary hearing. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts of this case, we do not lay them out here except where

necessary.

      “We review the district court’s findings of fact for clear error even when

they are based on the written record of administrative proceedings.” Amanda J. ex

rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). Findings

of fact are “clearly erroneous when the evidence in the record supports the finding

but the reviewing court is left with a definite and firm conviction that a mistake has

been committed.” Id. (internal quotation marks omitted). “We review de novo the

question of whether” a school district provided a FAPE. Id.

      As the main method of implementing the policy goals of the IDEA, a

student’s individualized education plan (IEP) “must be drafted in compliance with

a detailed set of procedures.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.


                                          2
Dist. RE-1, 137 S. Ct. 988, 994 (2017). Procedural compliance “is essential to

ensuring that every eligible child receives a FAPE.” Amanda J., 267 F.3d at 891.

Not all violations of IDEA’s procedures, however, deny a student FAPE—they do

so only if they “impeded the child’s right to a [FAPE]; significantly impeded the

parents’ opportunity to participate in the decisionmaking process regarding the

provision of [FAPE] . . . ; or caused a deprivation of educational benefits.” 20

U.S.C. § 1415(f)(3)(E).

1.    C.S. first contends that BSD failed to follow IDEA’s procedures by not

evaluating him for specific learning disabilities (SLDs), despite staff suspecting

that he had SLDs in certain academic areas. See Timothy O. v. Paso Robles

Unified Sch. Dist., 822 F.3d 1105, 1126 (9th Cir. 2016) (holding that failure to

evaluate a child when required is a procedural violation that deprives the child of

FAPE). But there was no clear error in the district court’s holding that BSD

attempted to get C.S.’s mother’s approval to further evaluate and classify C.S. and

C.S.’s mother resisted. While schools ordinarily “cannot eschew [their]

affirmative duties under the IDEA by blaming the parents,” the IDEA states that

when parents do not consent to evaluations, schools do not violate the IDEA by not

evaluating the student. Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1045 (9th

Cir. 2013); see also 20 U.S.C. § 1414(a)(1)(D)(ii). Moreover, even if the school


                                          3
procedurally erred in not engaging in further evaluations, the record shows that

C.S. received specialized services in all SLD areas during both at-issue school

years, making any error harmless.

2.    C.S. next argues that BSD did not provide FAPE because it failed to

adequately assess C.S.’s behaviors and develop appropriate, individualized

behavioral-intervention plans. But C.S. misreads the IDEA’s requirements for

students with behavioral issues by contending that BSD was required to seek out a

comprehensive Functional Behavioral Assessment (FBA) performed by a licensed

individual. The IDEA only requires an FBA when a child is removed from his

current placement due to problem behaviors. 20 U.S.C. § 1415(k)(1)(D)(ii). For

other students with disability-related behavioral needs, an IEP need only include

(1) “measurable annual goals” developed to “enable the child to be involved in and

make progress in the general education curriculum;” and (2) how “progress toward

meeting the annual goals . . . will be measured.” 34 C.F.R. § 300.320(a)(2)(i),

(3)(i). Our concern is whether the IEP and its underlying behavioral analysis was

reasonable, not whether it was ideal, see Endrew F., 137 S.Ct. at 999, and C.S. is

arguing for the ideal here. The record is replete with evidence showing that BSD

staff and C.S.’s IEP team considered C.S.’s problem behaviors and took steps to

correct them, including adopting behavioral-intervention plans. And C.S.’s IEPs


                                          4
contained measurable annual behavioral goals and specified how these goals would

be measured. No more was required of BSD, so C.S. fails to show how he was

denied FAPE due to BSD’s behavioral programming.

3.    C.S. next argues that BSD procedurally erred in its provision of “transition

services.” For each IEP in effect after a child turns 16, the IEP must include

“[a]ppropriate postsecondary goals based upon age appropriate transition

assessments related to training, education, employment, and, where appropriate,

independent living skills,” and “[t]he transition services . . . needed to assist the

child in reaching those goals.” 34 C.F.R. § 300.320(b)(1)–(2). These services

must be designed in a “results-oriented process, that is focused on improving the

academic and functional achievement of the child” to enable them to move from

school to post-school activities, “including postsecondary education, vocational

education, integrated employment . . . , continuing and adult education, adult

services, independent living, or community participation.” 20 U.S.C.

§ 1401(34)(A); see also 34 C.F.R. § 300.43(a)(1).

      The record is clear that BSD failed to conduct any age-appropriate transition

assessments for C.S. when developing the 2011–12 school year’s IEP. Failure to

do so led to C.S.’s IEP containing goals that were not specific to C.S.’s needs.

BSD therefore committed a procedural error in this year.


                                            5
      BSD assessed C.S. in the 2012–13 school year, and the assessment was used

by his IEP team in developing measurable goals and outlining services that would

help meet those goals. But C.S. contends that his IEP that year was still inadequate

because additional assessments were required.

      However, taking into consideration the inadequate IEP in the 2011–12

school year and assuming more assessments were required in the 2012–13 school

year, the record is clear that C.S. received a host of transition services during both

school years. Procedural errors only operate to deny FAPE when they deny an

educational benefit, 20 U.S.C. § 1415(f)(3)(E)(ii), and the record supports the

district court’s finding that, even assuming an error, C.S. still benefitted from a

wide variety of transition services in both at-issue school years.

4.    C.S.’s last alleged deviation from the IDEA’s procedural safeguards arises

out of BSD seeking to have Mary Jo Mahoney instead of McCarvel appointed as

C.S.’s educational representative. When a student with a disability reaches the age

of majority, “all . . . rights accorded to parents under” the IDEA transfer to the

student. 20 U.S.C. § 1415(m)(1)(B). But if the student “has not been determined

to be incompetent, but . . . is determined not to have the ability to provide informed

consent with respect to” his or her education program, a state must “establish

procedures for appointing the parent of the child, or if the parent is not available,


                                           6
another appropriate individual” to represent the student’s educational interests. Id.

§ 1415(m)(2).

      C.S. was unable to provide informed consent about his educational program,

so BSD was right to seek appointment of an educational representative. Because

there were no established procedures in place in Montana at the time, the Office of

Public Instruction (OPI) directed BSD to seek appointment of a decisionmaker

using the state’s surrogate-parent procedure. BSD sought—and

won—appointment of Mahoney. But what OPI and BSD missed was the directive

in the IDEA to attempt to appoint a parent first. Only if a parent is unavailable

should “another appropriate individual” be appointed. Id.

      When C.S. challenged Mahoney’s appointment in state court, he prevailed.

In a published opinion, the Montana Supreme Court held that McCarvel qualified

as a parent under the applicable laws and reversed Mahoney’s appointment. See In

re C.S., 320 P.3d 981, 985–86 (Mont. 2014). The district court took judicial notice

of the opinion but held the opposite: that McCarvel had no right to appointment

and so there was no procedural error in appointing Mahoney. The district court did

so without a discussion of the Montana Supreme Court’s opinion or the provisions

of the IDEA that give foster parents the same rights as natural parents. This is




                                          7
clear error by the district court. There was no reason not to give full faith and

credit to the Montana Supreme Court’s opinion.

      BSD should have sought appointment of McCarvel because, as C.S.’s foster

parent, he had the same rights as C.S.’s natural parents. 20 U.S.C. § 1401(23)(A).

And under 20 U.S.C. § 1415(m)(2), schools should only seek appointment of

someone other than a parent if the parent is unavailable. But this procedural error

by BSD is harmless unless it significantly impacted McCarvel’s “opportunity to

participate in the IEP formulation process.” Amanda J., 267 F.3d at 892. And

here, the record shows that McCarvel was able to meaningfully participate the

same after Mahoney’s appointment as he had before. Accordingly, the procedural

error of not seeking McCarvel’s appointment as C.S.’s representative was

harmless.

5.    In addition to challenging BSD’s procedures in developing and

implementing his IEP, C.S. contends that the district court made multiple errors

before and during the evidentiary hearing that, individually and cumulatively,

merit reversal. “Evidentiary rulings are reviewed for an abuse of discretion and

should not be reversed absent some prejudice.” Defs. of Wildlife v. Bernal, 204

F.3d 920, 927–28 (9th Cir. 2000).




                                           8
      First, the district court did not abuse its discretion in allowing BSD’s

witnesses to testify. Under the IDEA, if a party brings a civil action in the district

court challenging a hearing officer’s administrative ruling, the district court is not

limited to the administrative record. Additional evidence may be submitted upon a

party’s request. 20 U.S.C. § 1415(i)(2)(C)(ii). The scope of this evidence is within

the trial court’s discretion, but it must not allow “additional evidence” to “change

the character of the hearing from one of review to a trial de novo.” Ojai Unified

Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993) (citation omitted). BSD’s

witnesses may have testified at the administrative hearing, but their testimony

before the district court was not mere repetition of that testimony. Accordingly, it

was not an abuse of discretion to allow BSD to present witnesses to rebut C.S.’s

new expert witnesses.

6.    Next, C.S. contends that it was an abuse of discretion for the district court to

allow BSD’s proposed experts to testify as expert witnesses. But any error in

allowing these individuals to testify as experts despite a lack of qualifications was

harmless. See Bernal, 204 F.3d at 927–28. The district court does not appear to

have actually considered these individuals as expert witnesses or given any weight

to their opinions. And given the lengthy testimony and the very few opinions




                                           9
rendered, even if these witnesses had not been allowed to testify to opinions, they

still would have been able to give substantially the same testimony.

7.    C.S. also argues that the district court abused its discretion by giving no

weight to the testimony of Dr. Gentry, C.S.’s expert witness in the administrative

hearing. C.S. contends that the district court should have applied the Montana

Rules of Evidence instead of the Federal Rules of Evidence, but we need not

decide which rules apply because they do not differ on the question that was

dispositive to the district court—whether Dr. Gentry was qualified to testify as an

expert. The Montana Supreme Court has rejected the federal standard for

assessing the reliability of the reasoning and methodology underlying a proposed

expert’s opinion, not the generally accepted standards for assessing a proposed

expert’s qualifications. See Hulse v. State, 961 P.2d 75, 89–91 (Mont. 1998).

Montana’s rules still require a proposed expert to “be qualified as an expert to give

an opinion in the particular area of the testimony.” Id. at 89 (citation omitted).

The district court’s decision here came down to doubts about Dr. Gentry’s

qualifications, not his methods, so the difference between the state and federal

rules is immaterial.

      It was not an abuse of discretion to sustain BSD’s objection to Dr. Gentry’s

designation as an expert. While Dr. Gentry is well educated, the record supports


                                          10
the district court’s findings that he lacked certain qualifications important to his

ability to give opinions on whether C.S.’s IEPs were adequate. But regardless,

C.S. was not prejudiced because he was able to present extensive testimony from

two experts that covered substantially similar information.

8.    C.S. also argues that the district court abused its discretion in refusing to

admit two exhibits for impeachment purposes. But any error related to these

documents was harmless. Exhibit 9 was eventually admitted as non-hearsay and

C.S. appeared to have gotten the answer that Exhibit 20-B was designed to induce

from the witness without the document being admitted. Accordingly, the failure to

admit these documents was not reversible error.

9.    Finally, C.S. argues that the neuropsychological evaluation reports created

by one of his experts should have been admitted. Setting aside the admissibility of

the documents, C.S. was able to fully question this expert at the hearing about the

information contained in the reports, including tests performed, diagnostic

conclusions, and the impact of C.S.’s conditions on his education. Because the

pertinent medical information contained in the reports became part of the record

via the expert witness’s testimony, there was no prejudice to the reports not being

admitted.

      AFFIRMED.


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