           United States Court of Appeals
                       For the First Circuit


No. 00-1689
No. 01-1032

        HÉCTOR GONZÁLEZ, GRICELLE I. NAZARIO GONZÁLEZ,
                     AND GABRIEL GONZÁLEZ,

                      Plaintiffs, Appellants,

                                 v.

              PUERTO RICO DEPARTMENT OF EDUCATION,

                       Defendant, Appellee.


         APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Héctor M. Laffitte, U.S. District Judge]



                               Before

                    Selya, Lynch, and Lipez,
                         Circuit Judges.



     Nydia María Díaz-Buxó, with whom Orlin P. Goble was on brief, for
appellants.
     Sigfredo Rodríguez-Isaac, with whom Roberto J. Sánchez Ramos,
Solicitor General, Puerto Rico Department of Justice, Vanessa Lugo
Flores, Deputy Solicitor General, Sylvia Roger Stefani, Assistant
Solicitor General, Leigh M. Manasevit, and Brunstein & Manasevit were
on brief, for appellee.
                            June 26, 2001



          Per Curiam. This appeal is brought by Héctor Gonzalez, his

wife Gricelle Nazario González, and their seventeen-year-old son

Gabriel González, who is autistic. For the past nine years, Gabriel

has attended the Higashi School in Boston, a residential school

specializing in the education of autistic children. While at Higashi,

Gabriel has progressed well. Plaintiffs wish Gabriel to continue his

attendance at the Higashi School, or, failing that, at some comparable

residential program. They claim that the Puerto Rico Department of

Education must pay for such residential placement as part of its

obligation to provide Gabriel a "free appropriate public education,"

pursuant to the Individuals with Disabilities Education Act (IDEA), 20

U.S.C. §§ 1400 et seq.     The Department instead has proposed an

individualized education plan (IEP) under which Gabriel would reside at

home in Puerto Rico and attend special education classes at a local

public school, supplemented by extra instructional personnel and

extended-year services.

          After lengthy administrative proceedings, a hearing officer

ruled that the Department's proposed IEP was sufficient to meet the

requirements of the IDEA; the hearing officer also ordered that the IEP

be amended to include additional services that he thought would


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strengthen the plan and that the Department had itself expressed a

willingness to offer. Plaintiffs sought review by the district court.

The district court found the case close, but affirmed the hearing

officer's determination; also, the court ordered that the IEP be

amended to include additional services (beyond those added by the

hearing officer), mainly designed to ensure that Gabriel's transition

to schooling in Puerto Rico would be smooth and that his daily life

would continue to be highly structured, as it has been at the Higashi

School. See González v. Puerto Rico Dep't of Educ., Civ. No. 95-2284

(D.P.R. Mar. 30, 2000).

          Plaintiffs now appeal the district court's ruling. They

challenge, in essence, the court's finding of fact that although

Gabriel needs to be educated in a highly structured environment, such

structure can be achieved through the Department's IEP and hence does

not require residential placement. We review the district court's

findings of fact only for clear error, Kathleen H. v. Mass. Dep't of

Educ., 154 F.3d 8, 13 (1st Cir. 1998), and find none. As the district

court explained, it had before it conflicting testimony from credible

experts as to whether Gabriel could be appropriately educated outside

a residential program; owing a degree of deference to the hearing

officer's determination, see, e.g., Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982); Lenn v. Portland

Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993), the district court


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felt bound to affirm in the face of this reasonable disagreement.

González, Civ. No. 95-2284, slip op. at      16.   We see no cause for

disturbing the court's finding.        The district court has dealt

extensively and sensitively with this case since 1995 and was well

positioned to assess the facts. Our review of the record confirms that

there was indeed conflicting testimony by several witnesses as to the

need for residential placement; and the district court acted within its

bounds in finding the testimony of the defendant's expert credible and

sufficient to support the hearing officer's decision.1

          Besides challenging the district court's factual findings,

the plaintiffs might also be understood as raising a legal issue as to

whether the district court sufficiently took into account Gabriel's

past behavioral difficulties at home in deciding the appropriateness of

removing him from a residential program. Gabriel has a history of

throwing tantrums at home (although the frequency and controllability

of those tantrums is disputed by the parties); and his parents have

expressed considerable concern for their safety and that of their

daughter if Gabriel returns home pursuant to the proposed IEP.


     1    While plaintiffs suggest in their brief that the
defendant's expert, Dr. Linares, actually agreed with their experts
that removing Gabriel from a residential program was too risky and
would likely cause him to regress, that characterization of Dr.
Linares' testimony is inaccurate. In the portion of his testimony to
which plaintiffs refer, Dr. Linares simply testified that absent
careful planning -- in particular, absent the measures outlined in
the Department's IEP -- removing Gabriel from a residential program
would be too risky and would likely cause him to regress.

                                 -4-
          The district court took cognizance of Gabriel's behavior

problems at home, but stated as a matter of law that

          [a] court deciding on the appropriateness of residential
          placement must determine whether such placement is necessary
          for the child's education . . . , rather than for any
          social, medical, or emotional problems distinct from his
          learning problem. . . . Although a child may have severe
          behavior problems at home which make it difficult for his
          parents to control, the educational agency is not
          necessarily responsible to remedy this problem.

González, Civ. No. 95-2284, slip op. at 10 (paragraph structure and

citations omitted). As to Gabriel's parents' safety concerns, the

court found them separable from Gabriel's educational problems and

therefore an insufficient ground to justify a residential placement.

Id. at 11.

          As a conceptual matter, the district court's recitation of

the relevant legal standard was correct as to problems truly "distinct"

from learning problems. Educational benefit is indeed the touchstone

in determining the extent of governmental obligations under the IDEA.

See Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1st Cir. 2001)

("The question is whether these behavioral disturbances interfere[]

with the child's ability to learn.") Thus we have said, for example,

that the Act does not require

          a local school committee to support a handicapped child in
          a residential program simply to remedy a poor home setting
          or to make up for some other deficit not covered by the Act.
          It is not the responsibility of local officials under the
          Act to finance foster care as such: other resources must be
          looked to.


                                 -5-
Abrahamson v. Hershman, 701 F.2d 223, 227-28 (1st Cir. 1983).

Nonetheless, as a practical matter, in cases such as this one, where

all agree that the student's activities need to be highly structured

both during and after school in order for him to receive an appropriate

education, clear lines can rarely be drawn between the student's

educational needs and his social problems at home. Thus, typically an

IEP in cases where the student's disability is this serious (and

requires such a degree of structure) must address such problems in some

fashion, even if they do not warrant residential placement.

          The district court here did not dismiss the significance of

Gabriel's problems at home. While it did not find that those problems

so affected Gabriel's ability to learn as to warrant residential

placement, the court did find it necessary for the Department's IEP to

address them. Accordingly, it ordered that the IEP be expanded to

include further services and training for Gabriel's parents designed to

help them manage Gabriel's behavior at home. And there is sufficient

evidence in the record as to the nature of Gabriel's behavioral

problems to support the district court's conclusion that they can be

managed effectively through such means. Accordingly, we find no error

in the way in which the district court addressed the link between

Gabriel's problems at home and his educational needs.2

     2    Plaintiffs raise two further issues in their brief that
can be summarily dispatched. First, plaintiffs argue that the burden
below was on the Department to show that residential placement was

                                 -6-
          Finally, we note that plaintiffs' oral argument focused

largely on events that have occurred since the district court's ruling;

specifically, plaintiffs alleged that the Department has failed to

comply with the district court's order to make effective preparations

for Gabriel's return to Puerto Rico. Two points are in order. First,

any charges of non-compliance with the court's order are not properly

before us on appeal; if such charges are to be brought, plaintiffs must

bring them in the first instance before the district court. Second,

having said that, we urge cooperation between the parties at this

point. Despite plaintiffs' deep and sincere reservations about the

wisdom of educating Gabriel in Puerto Rico, that course of action has

been duly determined. It is now soon to be effected, and, clearly,

success will depend on the careful collaboration and determined efforts

of both parties.

          The judgment of the district court is affirmed. No costs are



unnecessary to provide Gabriel a free appropriate public education.
But the burden was not the defendant's to bear; it properly belonged
to plaintiffs, as they were the party challenging the hearing
officer's decision. E.g., Hampton Sch. Dist. v. Dobrowolski, 976
F.2d 48, 54 (1st Cir. 1992).
          Second, plaintiffs argue that they are entitled to
attorney's fees. The district court awarded plaintiffs partial
attorney's fees based on their partial success before the court (in
that the court amended the IEP in a way beneficial to the
plaintiffs). On appeal, plaintiffs present no developed argument as
to why the district court's award was legally flawed. Hence, the
issue has been waived. See, e.g., United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (possible arguments raised only in "skeletal"
form on appeal deemed waived).

                                 -7-
awarded.




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