                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 01 2012

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




                            FOR THE NINTH CIRCUIT



C.M., by and through her mother, Jodi M.,         No. 10-16240

              Plaintiff - Appellant,              D.C. No. 1:09-cv-00205-SPK-
                                                  KSC
  v.

DEPARTMENT OF EDUCATION,                          MEMORANDUM *
STATE OF HAWAI’I,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Hawaii
                    Kevin S. Chang, Magistrate Judge, Presiding

                      Argued and Submitted February 14, 2012
                                Honolulu, Hawaii

Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.

       C.M., a minor, by and through her mother, appeals the district court’s

judgment in favor of the State of Hawaii Department of Education (“DOE”). The

district court upheld the decision of the administrative hearings officer that C.M.,

despite diagnoses of Central Auditory Processing Disorder (“CAPD”) and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Attention Deficit Hyperactivity Disorder (“ADHD”), was not a “child with a

disability” for purposes of eligibility to receive special education services under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1491.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we affirm.

      This Court reviews the district court’s findings of fact for clear error.

Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir.

2001). A finding of fact is clearly erroneous if “‘the reviewing court is left with a

definite and firm conviction that a mistake has been committed.’” Id. (quoting

Burlington N., Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983)).

When a party challenges the outcome of an IDEA due process hearing, the

reviewing court receives the administrative record, hears any additional evidence,

and, ‘‘basing its decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate.’’ 20 U.S.C. § 1415(i)(2)(C)(iii).

Courts give “‘due weight’” to the state administrative proceedings, Van Duyn ex

rel. Van Duyn v. Baker School District 5J, 502, F.3d 811, 817 (9th Cir. 2007)

(quoting Bd. of Educ. of Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

206 (1982)), and, at a minimum, “‘must consider the findings carefully,’” Ojai

Unified School District v. Jackson, 4 F.3d 1467, 1474 (9th Cir. 1993) (quoting

Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). This


                                           2
court, like the district court, gives particular deference where the hearing officer’s

administrative findings are “thorough and careful.” Union Sch. Dist. v. Smith, 15

F.3d 1519, 1524 (9th Cir. 1994). We treat a hearing officer’s findings as

“thorough and careful” when, as here, the officer participates in the questioning of

witnesses and writes a decision “contain[ing] a complete factual background as

well as a discrete analysis supporting the ultimate conclusions.” Park ex rel. Park

v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006). On

appellate review, the burden of proof is on the party challenging the administrative

ruling, which in this case is C.M. See Ms. S. ex rel. G. v. Vashon Island Sch. Dist.,

337 F.3d 1115, 1127 (9th Cir. 2003) (superseded by statute on other grounds).

      Contrary to C.M.’s contention, the district court did not err in using the

standard set forth by the Supreme Court in Rowley, 458 U.S. at 206-207, in making

its eligibility determination. In Hood v. Encinitas Union School District, 486 F.3d

1099 (9th Cir. 2007), we addressed the Rowley benefit standard and held that it was

appropriate for courts to use the benefit standard in determining whether a child “is

receiving adequate accommodations in the general classroom–and thus is not

entitled to special education services.” Id. at 1107. Accordingly, the district court

applied the proper standard in determining that, based on C.M.’s performance in

her regular education classes, with accommodations and modifications, C.M. was


                                           3
able to benefit from her general education classes without special education

services.

      The record does not support C.M.’s contention that the DOE failed to

evaluate her in all areas of suspected disability under the “Child Find” provisions

of the IDEA. See 20 U.S.C. § 1414(b)(3)(B). Here, the hearings officer found that

due to C.M.’s diagnoses of CAPD and ADHD, as well as the information

contained in C.M.’s academic and speech-language assessments, “the DOE had

reason to suspect that [C.M.] may have academic and speech-language deficits.”

Indeed, these disability categories were discussed at the August 19, 2008 eligibility

meeting. The DOE reviewed C.M.’s prior school records, psychological and

medical reports, standardized testing data, grades, attendance records, teacher

observations and reports, parental input, student input, and student work samples.

Based on this information, the DOE determined that C.M. did not require special

education services because she was able to perform and compete successfully in

the general education classes. Further, based on the testimony of two of C.M.’s

teachers that C.M. did not exhibit any behavioral problems, the DOE did not have

any reason to suspect any emotional disturbance that would require it to assess

C.M. in this area. Accordingly, the DOE met its child find obligations by assessing

C.M. in all areas of suspected disability.


                                             4
      Further, we find no clear error in the district court’s determination that C.M.

was benefitting in the regular classroom and therefore did not require special

education services. C.M. provides no support for her claim that some of the

specific modifications in her 504 plan, including the READ 180 program, as well

as the pre-algebra course and math lab, were “specialized instruction” within the

meaning of the IDEA. The district court found, and we agree, that substantial

evidence supported the hearings officer’s conclusion that these reading and math

classes were not “special education” classes, but rather were regular education

classes with small enrollments designed to provide additional support and were

open to many types of students who needed additional help.

      In addition, we conclude that C.M. has not met her burden of demonstrating

that she is eligible for special education services under the category of “specific

learning disability.”1 To be eligible under this category, a student must not only

demonstrate a severe discrepancy between actual achievement and intellectual

ability as demonstrated by a difference of at least one and one-half standard

deviations in one or more of the listed areas, but also must demonstrate that, having



      1
       We decline to address any arguments with respect to this issue raised by
C.M. in her 28(j) letter or at oral argument that were not presented in her briefs.
Such arguments would, in any event, not affect the outcome here.


                                           5
been “provided with learning experiences appropriate for [her] age and ability

levels, [she] does not achieve commensurate with [her] age and ability levels.”

H.A.R. § 8-56-26 (repealed Nov. 23, 2009).

      The hearings officer found that the evidence did not show that C.M. had

demonstrated even the second part of this test, i.e., that she was not achieving. The

hearings officer pointed to specific testimony by C.M.’s teachers that she was

progressing appropriately in her classes. Giving due deference to the hearings

officer’s thorough and careful findings, Union Sch. Dist., 15 F.3d at 1524, we hold

that C.M. has not met her burden of showing that the district court, which affirmed

the hearings officer in this regard, committed clear error by not finding C.M.

eligible for special education and related services under the category of specific

learning disability.

      C.M. also contends that the district court committed clear error by not

finding C.M. eligible for special education and related services under the category

of “other health impairment.” See H.A.R. § 8-56-25 (repealed Nov. 23, 2009).

C.M. makes no argument in this regard and thus has waived the issue.

Nonetheless, the hearings officer determined that although C.M. has been

diagnosed with ADHD, she did not show that she has “limited strength, vitality, or

alertness,” nor did she show “that any health impairment [she] may have adversely


                                          6
affects [her] educational performance.” Id. Therefore, C.M. has failed to

demonstrate clear error in this determination.

      In light of the foregoing, C.M. has failed to demonstrate that the district

court committed clear error in determining, based on the hearings officer’s

“thorough and careful” findings, Union Sch. Dist., 15 F.3d at 1524, that C.M. did

not require special education services and that her needs could be met in a 504

plan. There are no findings of fact that leave this Court with any kind of

“conviction that a mistake has been committed,” Amanda J., 267 F.3d at 887, and

there is no error in the district court’s conclusion that the DOE did not violate the

IDEA in this case. Accordingly, we AFFIRM the district court’s judgment.




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