                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 18 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


G. M. and R. M., a minor child by and            No. 12-56627
through her mother G.M.,
                                                 D.C. No. 8:11-cv-01449-DOC-
              Plaintiffs - Appellants,           MLG

  v.
                                                 MEMORANDUM*
SADDLEBACK VALLEY UNIFIED
SCHOOL DISTRICT,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                        Argued and Submitted May 16, 2014
                               Pasadena, California

Before: NOONAN and WARDLAW, Circuit Judges, and SILVER, Senior District
Judge.**

       Appellants G.M. (“Mother”) and R.M. (“Student”) appeal the district court’s

decision, which affirmed an Administrative Law Judge’s determination that

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Saddleback Valley Unified School District (“School District”) did not violate its

“child find” obligation with respect to Student, nor did it fail to provide Student

with a Free and Appropriate Public Education (“FAPE”). In addition to ruling on

the merits of plaintiffs’ claims, the district court also solicited a request for an

award of attorneys’ fees from the School District based on its conclusion that

plaintiffs’ claims were frivolous or presented for an improper purpose.

       Though a close and novel question, the district court did not err in

concluding that the School District complied with its child find duty with respect to

Student because it took steps to “identif[y], locate[], and evaluate[]” Student.

Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1183 (9th Cir. 2010)

(quoting 20 U.S.C. § 1412(a)(3)(A)).

       Nor did the district court err when it concluded that the School District also

met its obligation to provide a FAPE to Student. 20 U.S.C. § 1412(a)(1). The

School District drafted an individualized education plan (“IEP”) “reasonably

calculated to confer an educational benefit on the child.” JG v. Douglas Cnty. Sch.

Dist., 552 F.3d 786, 801 (9th Cir. 2008). While the IEP may not have been perfect,

it did “take into account what was, and was not, objectively reasonable when the

snapshot was taken, that is, at the time the IEP was drafted.” Adams v. State of

Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (internal quotation marks omitted).


                                             2
      However, the district court’s solicitation of a motion for attorneys’ fees from

the School District on this record was questionable. Congress amended the IDEA

in 2004 to allow prevailing school districts to obtain attorneys’ fees from the

plaintiffs if the litigation was “frivolous, unreasonable, or without foundation,” or

“presented for any improper purpose, such as to harass, to cause unnecessary

delay, or to needlessly increase the cost of litigation.” 20 U.S.C.

§ 1415(i)(3)(B)(i)(II), (III). The district court’s order makes clear that it solicited

“a future motion for attorney’s fees from [the] District” because it had already

concluded that plaintiffs’ claims were frivolous. The question of whether the

School District violated its child find duties was close, and one of first impression

for our circuit,1 especially given that Student’s school counselor had been advised



      1
         We have not yet articulated a test for when the child find obligation is
triggered. The parties and the district court rely upon a test articulated by a Hawaii
district court. See Dept. of Educ., Haw. v. Cari Rae S., 158 F. Supp. 2d 1190 (D.
Haw. 2001) (“[T]he child-find duty is triggered when the [district] has reason to
suspect a disability, and reason to suspect that special education services may be
needed to address that disability.”) (internal quotation marks omitted). The Sixth
and Third Circuits have promulgated tests that differ significantly from the Cari
Rae standard. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012)
(noting that “Child Find does not demand that schools conduct a formal evaluation
of every struggling student”); Bd. of Educ. of Fayette Cnty., Ky. v. L.M., 478 F.3d
307, 314 (6th Cir. 2007) (holding that the individual claiming a child find violation
must demonstrate “that school officials overlooked clear signs of disability and
were negligent in failing to order testing or that there was no rational justification
for not deciding to evaluate”).
                                            3
of Student’s diagnosis of “major depressive disorder” as of at least October 15,

2009. The question of whether the School District failed to provide a FAPE was,

at a minimum, legally cognizable. See R.P. ex rel. C.P. v. Prescott Unified Sch.

Dist., 631 F.3d 1117, 1126 (9th Cir. 2011) (“Lawyers would be improperly

discouraged from taking on potentially meritorious IDEA cases if they risked being

saddled with a six-figure judgment for bringing a suit where they have a plausible,

though ultimately unsuccessful, argument, as here.”). We remand in part to the

district court so it may consider whether it should have solicited the request of

attorneys’ fees from the district.2

      Each side shall bear its own costs.

      AFFIRMED; REMANDED.




      2
       Plaintiffs’ failed to appeal the November 26, 2012 order granting the
School District’s motion for attorneys’ fees, so we lack jurisdiction over the actual
amount awarded.
                                            4
