United States District Court, W.D. Tennessee, Eastern Division
H.M., individually, and by and through J.M., natural parent and guardian of H.M., Plaintiffs,
WEAKLEY COUNTY BOARD OF EDUCATION, Defendant.
J. DANIEL BREEN, Chief District Judge.
INTRODUCTION AND PROCEDURAL BACKGROUND
On October 21, 2008, the Defendant in this case, Weakley County Board of Education (the "Board"), brought an action against the Plaintiffs herein, H.M., individually and by and through J.M., natural parent and guardian of H.M., pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), appealing the decision of Administrative Law Judge ("ALJ") William Jay Reynolds entered on September 22, 2008. (W.D. Tenn, No. 1:08-cv-01254-JDB-cgc ("Case No. 08-1254").) Judge Reynolds found that, based on procedural errors by the Board, J.M. was entitled under the IDEA to reimbursement of certain tuition fees and related costs. In an order entered March 28, 2012, this Court remanded the matter to the ALJ for the purpose of determining whether H.M. suffered from an "emotional disturbance" under the statute. (Case No. 08-1254, D.E. 154.)
On remand, the case was assigned to ALJ Kim Summers,  who issued an order on December 19, 2012 finding that H.M. was not emotionally disturbed and, therefore, not a child with a disability under the IDEA. The instant suit is an appeal of Judge Summers' decision, pursuant to the IDEA as well as § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504") and 34 C.F.R. § 104.4, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA") and 28 C.F.R. § 35.130. The parties have agreed that this case would be decided on the briefs.
FINDINGS OF FACT 
H.M. was born on February 1, 1989 in Murray, Kentucky and attended Weakley County Schools ("WCS") from kindergarten through high school. At the age of nine, unbeknownst to her parents, she was sexually assaulted by an adult. Her grandfather also died around that time. Thereafter, her grades declined and one of her teachers suggested she might have emotional problems. The teacher referred H.M.'s parents to Dr. Carla L. Farr, a counselor in nearby Paducah, Kentucky. H.M. told the counselor what had happened to her and the perpetrator was arrested. At the preliminary hearing, H.M. was called to testify but instead fled the room in tears. Her parents divorced when she was twelve years old, after which she lived with her father. Her mother remarried the following year. Dr. Farr's working diagnosis of H.M. was Axis I: post traumatic stress disorder ("PTSD"), parent child relational problem; Axis IV: family conflict, school environment; sexual abuse issues and Axis V: moderate to severe. Dr. Farr saw H.M. from October 25, 2001 through May 28, 2003. Thereafter, it was Dr. Farr's understanding that J.M. would seek help for his daughter as deemed necessary closer to his home. According to J.M., she seemed to "do okay" in middle school.
H.M. began high school at Dresden High School in Dresden, Tennessee. Her father recalled that her grades fluctuated. She was seeing a counselor but was not on medication. According to H.M., she skipped school while at Dresden because she did not like it. In February of her freshman year, she was sexually assaulted by the stepfather of a friend. The man was prosecuted and sent to prison. When H.M. returned to school, she was harassed by the friend and eventually placed in Weakley County's nonpunitive KEEP HOPING program. Although H.M. appeared to be under less stress in the program and felt comfortable there, J.M. objected to the placement for several reasons, including the lack of any repercussions with respect to the other girl, the instigator in his opinion, and the presence of "negative people" to whom his daughter might be drawn. He requested and obtained a transfer to Westview High School in Martin, Tennessee.
While she was at Westview, H.M. called the Weakley County Alternative School stating she was the aunt of a male student and asked to speak with him. A few days later, another call for the same male student was made, this time by an individual identifying herself as Bobbie Doer, a crisis worker. After two more calls to the student, ostensibly from Doer, officials at the alternative school suspected the caller was actually H.M. Alternative school director Joyce Hale contacted Westview, asked if H.M. was at school and explained the situation. It was determined that H.M. was at school and that she had made the calls from a cellphone to which she gained access by citing a family emergency. During one of the calls, H.M. and the male student made plans to meet at her father's rental home. When J.M. arrived at the residence, he discovered his daughter and the male inside.
In October 2004, shortly before fall break, J.M. discovered H.M. skipping school with the same boy again and this time had him arrested. He also had H.M. taken before the juvenile judge for truancy. H.M. stated in her deposition that she was angry at her father during this time. According to J.M., there was another student at Westview who had transferred from Dresden High School and who reminded his daughter of the assault. He stated in the due process hearing that she would come home from school in tears, lock herself in her room and refuse to talk. He took her to Carey Counseling Center, Inc. in Union City, Tennessee for evaluation on October 5, 2004. The psychiatric evaluation indicated a long history of depression, nightmares, flashbacks, and irritable outbursts at home. Mary Helen Wood, Ph.D., APRN, BC, noted that H.M. was cooperative and had organized, logical thought process and normal to above-average intellect. The evaluation also reflected worries, fears, thoughts of hopelessness and guilt, depressed mood and severe dysphoric affect. H.M. reported having friends. Wood diagnosed her with PTSD and severe major depression. Zoloft and Seroquel were prescribed and it was requested that she return in six weeks.
In progress notes dated November 3, 2004, Wood referenced concerns voiced by the father about H.M.'s continued depression, vomiting and inability to attend school. She increased the dosage of Zoloft and, along with James Williams, M.D., sent a request to WCS for homebound education due to H.M.'s condition. A homebound application was submitted to WCS on November 8, 2004 stating that H.M. had "significant self-esteem issues" and was unable to attend classes in regular school because her anxiety level prohibited school attendance and interfered with her concentration, ability to learn new information and interact with others. (AR00970.)
An Individual Education Program ("IEP") meeting was conducted on November 23, 2004, attended by J.M., WSC Director of Special Education Sue Moore, school counselor Jennifer Martin, the school principal and Pat Bradberry, the homebound teacher. It was concluded that H.M. would begin homebound education on that date and continue until the beginning of the second semester. It was noted on the IEP meeting form that "Holly's father is trying to place her in a residential facility. If this placement has not occurred, the IEP committee will meet [at] the beginning of [the second] semester to discuss further educational placement on homebound." (AR00972.) J.M. accepted the recommendation. The IEP noted H.M.'s strengths as "very creative, writing [a] song [and] drawing pictures." (AR00973.) The parent's concern regarding his child's education was listed as "Holly's father wants her to reach her potential." ( Id. )
During this time, Wood suggested that H.M. see a counselor at Baptist Behavioral Health Care. The counselor told her that she had been in counseling for two to two-and-a-half years and at some point she needed to stand up and do it on her own. H.M. attended one or two sessions with this individual and never went back.
In December 2004, on her father's request, H.M. was referred for a comprehensive assessment for determination of eligibility and need of special education services. J.M.'s stated reason for the request was his daughter's inability to function in the classroom setting and failure to realize her full potential due to past trauma. On a parent information form dated December 9, 2004, J.M. stated that his daughter was a very smart girl but that "due to events that happened to her she has become emotionally handicapped and is not able to move past these problems." (AR01011.)
Carey Counseling Center progress notes from that same month revealed stabilized mood, decreased nightmares, good eye contact, appropriate affect and an easy smile. The notes also indicated that J.M. planned to send her to a residential school and that H.M. was still receiving a homebound education. Wood requested a follow-up appointment in twelve weeks. The record contains no evidence of further counseling.
H.M.'s experience with the homebound program was less than positive. Bradberry reported that she frequently did not complete assignments and failed to bring her books to the last two sessions, which were held at her father's Martin, Tennessee home three hours per week. She recalled that H.M. showed her a picture of her boyfriend on her computer. Bradberry noted that H.M. "failed to complete the assigned homework, not because she could not do the work, but because she would not do the work." (AR00540-41, 01009.) Bradberry recommended the services be discontinued as H.M. was failing every class. On January 11, 2005, H.M. enrolled in Gateway Christian Schools, a homeschool program in Memphis, Tennessee. That same month, J.M. remarried, which, according to his daughter, caused tension between them.
WCS's psychological evaluation was conducted on January 18 and 21, 2005 by school psychologist Kathy Bucy. She interviewed H.M.'s teachers and recorded their observations. Pam Harris, her homeroom teacher, had transferred from Dresden High School and felt H.M. gravitated toward her because they already knew each other. Harris also felt used by the girl. Apparently, it was her cellphone H.M. asked to borrow to call her boyfriend, stating that she needed to call her father. Harris also noted that H.M. "interacted socially and appropriately with her peers; she appeared to have friends. There appeared nothing out of the ordinary' in her demeanor." (AR01347.) Biology teacher Rosemary Neville, who H.M. said she hated at the time, advised that H.M. failed to complete assignments and made excuses for incomplete work. She also reported that H.M. was "happy, she interacted socially with her peers, and she appeared interested in her personal appearance." (AR01343.) Spanish teacher Jaime Romero recalled that she was quiet in his class and frequently did not complete her work. As the year progressed, she went from being very attentive to "distracted and unfocused, " which he believed was normal for teenagers. (AR01338.) He also related that she frequently responded to questions with "I don't know" and appeared reluctant to participate. (AR00995.) Steve Kilgas, her art instructor, reported that H.M. interacted appropriately with classmates but found frequent excuses to leave class. Math teacher Ed Baker found her capable and quiet. According to Baker, she turned in her work when she attended school. Computer teacher Jeff Kurrus found nothing atypical about her behavior. Her English instructor, Mrs. Smith, described H.M. as shy and cooperative in working with other students. School counselor Cathie Holmes and assistant principal Mr. Hurst advised that H.M. often came to them claiming to be unhappy or unwell. She reported feeling uneasy at her mother's house because of the movies her mother's boyfriend watched. After a time, the two noticed a pattern in that her visits to them corresponded with her biology class, which she disliked. They also found her manipulative. On one occasion, instead of going to class, she went to another classroom to "help" the teacher because Hurst had sent her to do so when he in fact had not. She often missed the bus and asked teachers to give her a ride home. Holmes observed that H.M. was "able to interact with others. She, you know, as a teenager. Again, I say, she did have problems with some students. She voiced concerns about that, but I think at the time she had a boyfriend and there were some other kids that she had a relationship with." (AR00893.)
A report prepared by Bucy with respect to the evaluation also included the responses of J.M., H.M. and some of her teachers to the Behavior Assessment System for Children ("BASC"). J.M. reported that his daughter exhibited a number of behavioral and emotional problems resulting in an overall rating in the at-risk range. His ratings on the internalizing problems composite revealed scores in the clinically significant range. He also rated her level of anxiety and depression in the clinically significant range, indicating a high probability for maladjustment. J.M.'s ratings suggested that his daughter displayed physical complaints in the at-risk range on the somatization scale. Teacher evaluations completed by Bradberry and Hale indicated that she exhibited "some behavioral and emotional problems when compared to her peers." (AR01001.) Bucy noted that
[t]he overall rating of [H.M.'s] behavior fell in the At-Risk range.... This rating of [her] overall behavioral functioning is consistent with responses made by [J.M.]. In the Externalizing Problems composite (which includes the following areas: Hyperactivity, Aggression, and Conduct Problems) resulted in scores in the At-Risk range. The teachers' responses on the Internalizing Problems Composite indicate behaviors at the At-Risk range. They rated [H.M.'s] display of Somatization as Average; Anxiety in the At-Risk range; and Depression in the Clinically Significant range. The teachers' ratings on School Problems, Attention Problems, Learning Problems, Adaptive Skills, Social Skills, Leadership Skills, Atypicality, and Withdrawal all fell in the Average Range.
( Id. ) On the self-reporting portion of the BASC, H.M.'s responses fell into the average range except for somatization, in which she rated at-risk. The responses suggested that H.M. was overly sensitive to physical discomfort and frequently complained.
Bucy's testing also included the Vineland Adaptive Behavior Scale, on which J.M. was the respondent. H.M. scaled moderately low in general adaptive functioning and daily living skills and low in socialization skills. Her score in the maladaptive behavior domain fell into the significant range. Bucy noted that her "overall adaptive skills were significantly lower than expected." (AR01000.)
Holmes testified before Judge Reynolds as follows:
Q:... As her counselor did you see any deterioration in her ability to function as that tenth grade year moved forward?
A: H.M. was an exceptionally bright young lady. Academically she could function. It's possible that she could have some difficulties with certain things.
Q: Did you see a decline in her output say, academically as that semester progressed?
A: Only by what the teachers were telling. As her counselor they would come to me.
Q: They'd say she was doing poorly, doing less?
A: They were just concerned and they, you know, and I talk to several students academically if there are some drops in their grades.
Q: Did you feel like you had a good relationship with H.M.?
A: I thought we ...