Calumet County Department of Human Services v. Randall H.

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2002 WI 126 SUPREME COURT CASE NO.: OF WISCONSIN 01-1272 COMPLETE TITLE: State of Wisconsin ex rel. In re the Support of Robert H.: Calumet County Department of Human Services, Petitioner-Respondent, v. Randall H., Respondent-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 11, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Calumet Donald A. Poppy November 21, 2002 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant, there were briefs by Brett C. Petranech and Kelly & Petranech LLP, Madison, and oral argument by Brett C. Petranech. For the petitioner-respondent, there was a brief and oral argument by Melody Buchinger, corporation counsel. An amicus curiae brief was filed by Mary S. Gerbig, Mary L. Hubacher, Mark L. Olson and Davis & Kuelthau, S.C., Green Bay, on behalf of the Wisconsin Counsel of Administrators of Special Services, with oral argument by Mary S. Gerbig. An amicus curiae brief was filed by Jeffrey SpitzerResnick, Madison, on behalf of the Wisconsin Coalition for Advocacy. An amicus curiae brief was filed by Lucy T. Brown, Joanne Huston and Bruce Meredith, Madison, on behalf of the Wisconsin Education Association Council. An amicus curiae brief was filed by John J. Prentice, Julianne Barker and Prentice & Phillips LLP, Milwaukee, on behalf of the Wisconsin Counties Association. 2 2002 WI 126 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-1272 (L.C. No. 00 FA 139) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. In re the Support of Robert H.: Calumet County Department of Human Services, FILED Nov 21, 2002 Petitioner-Respondent, v. Cornelia G. Clark Clerk of Supreme Court Randall H., Respondent-Appellant. APPEAL from an order of County, Donald A. Poppy, Judge. ¶1 DIANE intersection of S. the SYKES, the Court for Calumet Affirmed. J. federal Circuit This case Individuals with involves the Disabilities Education Act (IDEA) and state statutes governing children in need of protection or services (CHIPS). The issue is whether the parent of a disabled child placed in a residential treatment facility pursuant to a circuit court's CHIPS order is exempt from the court's child support order if the child's individualized education program (IEP), mandated by the IDEA, No. 01-1272 subsequently specifies that the child's educational program be implemented at the residential treatment facility. We conclude that the parent is not relieved of the obligation to contribute to the child's support under these circumstances. ¶2 Randall H. petitioned the Calumet County Circuit Court to have his son, Robert H., adjudicated a child in need of protection or services pursuant to Wis. Stat. § 48.13(4) (19992000).1 Robert was diagnosed with schizo-affective disorder, oppositional defiant schizo-typal features, problems, his family disorder, and could and personality because not of care these for him disorder mental at with health home. The circuit court entered a dispositional order finding Robert a child in need of protection or services and ordered him placed in a residential treatment facility, and also ordered Randall to contribute toward Robert's support pursuant to Wis. Stat. §§ 46.10 and 48.355. ¶3 Pursuant to Wis. Stat. § 115.81, the responsible local education agency (LEA) convened an IEP team, which recommended that Robert's residential educational treatment program facility pursuant to the CHIPS order. be while he implemented was at residing the there Randall then moved the circuit court for relief from the child support obligation, arguing that he was exempt from the support obligation by virtue of Robert's entitlement under the IDEA to 1 a "free appropriate public All subsequent references to the Wisconsin Statutes are to the 1999-2000 version. 2 No. education" (FAPE). See 20 U.S.C. § 1401(8). 01-1272 The circuit court denied the motion, Randall appealed, and the court of appeals certified the case to this court on the issue of whether the IDEA preempts state statutes requiring parents to contribute to the support of their children placed outside the home by a CHIPS order. ¶4 We do not view this case as presenting a preemption question. The federal and state statutory schemes at issue here do not conflict, at least not under the circumstances of this case. Robert was placed in the residential treatment facility for mental health care pursuant to a CHIPS order of the circuit court. The implemented constitute IEP at a specifying the that facility residential while placement his educational he resided necessary program there for did be not educational purposes under the IDEA. Accordingly, the IDEA does not provide grounds the CHIPS for relief order. We from affirm child the support circuit obligation court's order in the denying relief. I. FACTS ¶5 Robert H. was born on April 12, 1985. He is the minor child of Randall H. In the second grade, Robert was provided speech services and language in response to problems with dysfluency, and he was also placed on medication for Attention Deficit Hyperactivity Robert was placed Disorder in special emotionally disturbed students. both inpatient (two (ADHD). In the education fifth grade, programming for Over time Robert has required hospitalizations 3 at St. Elizabeth's in No. Appleton and one in Colorado) and outpatient 01-1272 mental health services to deal with concerns about potential harm to himself and others, depression, hallucinations. anger, aggressiveness, and auditory At home, Robert became aggressive when stressed and exhibited isolation, anxiety, temper outbursts, insecurity, and hygiene problems. ¶6 Despite his persistent mental health problems, Robert possesses superior intellectual ability. in the Stockbridge School District. He began high school While there, a full-time aide assisted him with work organization and completion, and with behavior control. This assistance was very beneficial to his education. ¶7 again, On December 23, 1999, however, Robert was hospitalized this (WMHI). at the a Calumet child in Wis. Stat. § 48.13. had the Winnebago Mental Health Institute Some nine months later, on September 27, 2000, Randall petitioned adjudged time been County need Circuit of Court protection or to have Robert services. See In the petition, Randall stated that Robert diagnosed at WMHI with schizo-affective disorder (bipolar type), oppositional defiant disorder, and personality disorder with schizo-typal features. that Robert's symptoms included paranoid thoughts, delusional and ideations, aggressive thinking, The petition also stated emotional behaviors dysregulation, auditory and hallucinations, homicidal threats, negative had been tried, but 4 Robert's suicidal disorganized self-concept, difficulty forming and maintaining relationships. medications and and A number of symptoms escalated No. whenever he was environment. in a removed from the structure of the 01-1272 hospital WMHI staff had recommended out-of-home placement residential treatment facility. Randall's petition concluded: "[d]ue to Robert's severe pathology, the family is unable to provide the care and treatment to meet his numerous needs, thereby necessitating residential out-of-home placement." ¶8 On October 30, 2000, the circuit court, the Honorable Donald A. Poppy, Judge, adjudicated Robert a child in need of protection or services. in a residential The court ordered out-of-home placement treatment facility and supervision by the Calumet County Department of Human Services (the Department) for one year. referral The from Department WMHI, that recommended, Robert be consistent placed at the with a Lakeview Neurological Rehabilitation Center in Waterford, and the circuit court adopted that recommendation. ¶9 The dispositional order also required Randall to contribute toward the expense of the out-of-home placement in an amount to be determined by the Department. Wis. Stat. §§ 46.10(14)(b) and 48.355(2)(b)4. See Randall and the County entered into a stipulation whereby Randall agreed to pay $170 per week toward Robert's effective October 31, 2000. confirming the stipulation. CHIPS placement at Lakeview, The circuit court signed an order The County thereafter notified Randall's employer of its obligation to withhold a portion of his income to meet the child support obligation. The total cost of Robert's care at Lakeview exceeded $9,000 per month. 5 No. ¶10 was Lakeview 2000. Robert transferred is located to within Lakeview the on 01-1272 October 31, Union High Waterford School District, which became Robert's responsible LEA upon his arrival at Lakeview. ¶11 About Waterford See Wis. Stat. § 115.81(1)(b). two School weeks later, District educational needs. IEP on team November met to 15, address 2000, a Robert's Randall, representatives of the Waterford District, and two Calumet County representatives participated. ¶12 reading The IEP team determined that Robert exhibited strong and math concept skills, but weaknesses computation, written language, and spelling. given adequate classroom. support, The IEP Robert team could noted math It found that, function that in well special in education the at Waterford Union High had been considered and rejected because Calumet County already had placed Robert at Lakeview due to his mental health issues. The IEP specified that Robert's educational program would be implemented at Lakeview. ¶13 Randall then moved for relief from the child support order, asserting that the IDEA required Robert's placement at Lakeview to suspension be of at no future cost to parents. payments support the and support payments already made.2 He requested reimbursement of The circuit court denied the motion, concluding that Robert was placed at Lakeview because of his mental 2 health needs, The amounts paid resolution of this case. not have his been 6 educational held in needs, trust and pending No. 01-1272 therefore the IDEA did not relieve Randall of his obligation to contribute to Robert's support. The court further held that the IEP developed by the Waterford District, which specified that Robert would receive special education services at Lakeview while residing there, was "incidental" to his CHIPS placement. ¶14 of Randall appealed the circuit court's order, the court appeals certified the case to this court pursuant Wis. Stat. § 809.61, and we accepted the certification. to We now affirm. II. ¶15 The court of STANDARD OF REVIEW appeals certified the case on the question of whether the IDEA, "which requires a free appropriate public education preempt[s] (FAPE) to students Wis. Stat. §§ 48.355 and with disabilities, 46.10 . . . which require parents to contribute to their children's support when placed outside the home by a juvenile court." As we have noted, we do not view this case as presenting a preemption issue, and neither do the parties. They assert, and we agree, that the federal and state statutes do not conflict, although Randall argues in the alternative that if there is a conflict, then the federal law preempts. ¶16 whether We see this case as presenting a threshold question of Robert's placement at Lakeview was a residential educational placement under the IDEA, which carries with it the requirement that it be at no cost to the child's parents. 20 U.S.C. (2000). §§ 1401(8), The (22), preemption and issue 7 (25); does not 34 C.F.R. arise if See § 300.302 Robert's No. 01-1272 placement in the residential program was not for educational purposes under the IDEA. ¶17 whether The a federal courts residential have placement held is that the educational question and of therefore covered by the IDEA is a mixed question of fact and law.3 Butler v. Evans, 225 F.3d 887, 892 (7th Cir. 2000); Board of Educ. of County High Sch. No. 218 v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 692-693 (3d Cir. 1981). "[O]n appeal, mixed we review the district court's judgment as a question of fact and law, reviewing the ultimate determination de novo but reversing clearly erroneous." the court's factual findings only if Butler, 225 F.3d at 892 (citing Heather S. v. State of Wis., 125 F.3d 1045, 1052-53 (7th Cir. 1997)). ¶18 minimal, Here, the basically circuit consisting court's of 3 a factual brief findings recitation of were the The Seventh Circuit uses a fact-driven approach to identify an "educational placement" for purposes of parental reimbursement claims under the IDEA. Because "the term 'educational placement' is not statutorily defined," determining whether a placement is educational is "an inexact science." Board of Educ. of County High Sch. No. 218 v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996). "The meaning of 'educational placement' falls somewhere between the physical school attended by a child and the abstract goals of a child's IEP." Id. "Hesitant to definitively establish the meaning of 'educational placement' for our circuit, we adopt our sister circuits' fact-driven approach. We accept as the outer parameters of 'educational placement' that it means something more than the actual school attended by the child and something less than the child's ultimate goals." Id. at 549. 8 No. procedural history of the case. 01-1272 The facts set forth above are from the procedural record and the IEP prepared for Robert by the Waterford School District, which was part of the record on the motion for relief from the child support order. The parties do not disagree about the procedural history or the underlying evidentiary facts. determination of educational This whether purposes appeal Robert under turns was the on placed IDEA, the at ultimate Lakeview which for involves a determination of whether the facts meet the applicable legal standard. We apply a de novo standard of review. III. ANALYSIS ¶19 states The for regulates IDEA the the provides special education education of of education disabled disabled funding children, children by to and the also conditioning receipt of this funding on compliance with federal statutory and requirements.4 code See 20 U.S.C. §§ 1400-1487. The IDEA "represents an ambitious federal effort to promote the education of handicapped children." Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (discussing the Education for All Handicapped Children Act, later renamed the IDEA). Its purpose is "to ensure that all children with 4 Wisconsin's implementation of the IDEA is found in Chapter 115. See Wis. Stat. §§ 115.758-115.90. These sections spell out Wisconsin's procedural requirements for implementing the IDEA, including the rights and responsibilities of the various agencies and individuals impacted. Wisconsin's version is identical to the IDEA in most respects and is to be "construed in a manner consistent with" the IDEA. Wis. Stat. § 115.758. 9 No. 01-1272 disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). ¶20 public As is pertinent here, a FAPE, or "free appropriate education" under the IDEA, is "special education and related services," provided at public expense, supervision, and direction, pursuant to an IEP, program." 20 U.S.C. § 1401(8). or "individualized education The IDEA requires the LEA, or "local educational agency," to develop an IEP for any child with a disability. ¶21 20 U.S.C. § 1401(11) and (15). The IDEA defines "special education" as: [S]pecially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. 20 U.S.C. § 1401(25). "Related services" are: [T]ransportation, and such developmental, corrective, and other supportive services (including speechlanguage pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 1401(22). "mainstreaming" educating The disabled 10 IDEA generally children in requires the least No. restrictive environment children to "the and maximum in extent school with 01-1272 non-disabled appropriate." 20 U.S.C. § 1412(5)(A); see also Rowley, 458 U.S. at 202-03. ¶22 that a In certain public provided at or no limited private cost circumstances, residential to the the educational parents. § 1412(10)(B)(i); 34 C.F.R. § 300.302. IDEA See requires program 20 be U.S.C. Specifically, 34 C.F.R. § 300.302 provides that "[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child." 34 C.F.R. § 300.302 (emphasis added). ¶23 Federal courts deciding parental reimbursement cases under the IDEA have generally held that the test for whether a child's placement in a residential program is educational and therefore reimbursable under the IDEA focuses on whether the child's residential purposes." placement is "necessary for educational Butler, 225 F.3d at 893; Tennessee Dep't of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir. 1996) (a residential placement is appropriate and free only if it "is necessary for educational purposes as opposed to medical, social, or emotional problems that are separable from the learning process"); Clovis Unified Sch. Dist. v. California Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 1990) (analysis focuses on whether a residential placement "may be considered necessary for educational 11 purposes"); Burke County No. Bd. of Educ., 895 F.2d at 980 (the IDEA covers 01-1272 residential placement only if such placement is "essential for the child to make any educational progress at all") (emphasis in original) (citing 1983), Abrahamson v. and Matthews Hershman, v. Davis, 701 742 F.2d 223, 227 (1st Cir. F.2d 825, 829 (4th Cir. 1984)); McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C. Cir. 1985) (determination of whether the IDEA requires residential placement turns on whether full-time residential placement is necessary for educational purposes); Kruelle, 642 F.2d at 693 (only a residential placement that is "a necessary predicate for learning" is covered by the IDEA). ¶24 If a residential placement is "a response to medical, social, or emotional problems that is necessary quite apart from the learning process," then it is not an educational placement for purposes of the IDEA. Clovis, 903 F.2d at Butler, 225 F.3d at 893 (quoting 643). The IDEA does not require reimbursement for a residential placement that "addresses the child's medical, social or emotional [his] special education needs." disabilities apart from Id. at 894 (citing Clovis, 903 F.2d at 646-47). ¶25 Robert was placed at Lakeview pursuant to the circuit court's CHIPS order, a proceeding that Randall had initiated because Robert's placement. mental illness necessitated out-of-home His placement there was clearly in response to his psychiatric and emotional problems and was necessary quite apart from his special education needs. He had been hospitalized at WMHI for many months prior to the CHIPS petition, was diagnosed 12 No. with several serious psychiatric disorders, and 01-1272 had been recommended for a residential mental health placement by the staff at WMHI. Robert's IEP, prepared after he arrived at Lakeview pursuant to the CHIPS order, did not conclude that a residential placement was an educational necessity; it merely accepted that Robert had been placed in residential treatment for mental health issues by the circuit court's CHIPS order, and for that reason specified that his IEP should be implemented there.5 ¶26 We find it significant that Robert's IEP specify residential placement as a "related service." does not In the program summary on page I-14 of Robert's IEP, where necessary "related services" are listed, the box next to the statement "[n]one needed to benefit from special education" is checked, and the boxes next to the various itemized "related services" are left blank. The box next to "other" related services is 5 Randall conflates the IEP and the CHIPS order to argue that Robert's placement at Lakeview was precipitated by his educational needs. See, e.g., Butler v. Evans, 225 F.3d 887, 893 (7th Cir. 2000). Like the commitment and IEP proceedings at issue in Butler, the CHIPS dispositional order and the IEP recommendations in this case "were decided independently in separate proceedings . . . " and Robert was placed at Lakeview "outside of the IDEA procedures and IEP recommendations." Id. While an IEP and a CHIPS proceeding cannot be conflated for purposes of IDEA analysis, we do not mean to suggest that the presence of a separate CHIPS proceeding automatically precludes a finding that a residential placement is educational for purposes of the IDEA. 13 No. also left blank.6 01-1272 If the IEP team had concluded that a full-time residential program was necessary for Robert to make educational progress, the team would have listed it in this section of the IEP. It did not. In fact, residential programming is not identified as an educational necessity anywhere in the IEP.7 conclude that Robert's placement at Lakeview was We not necessitated by his educational needs for purposes of the IDEA.8 ¶27 Nothing in state law changes this conclusion. circuit court not children adjudged Wis. Stat. § 48.13. an to LEA has be in need exclusive of jurisdiction protection or The over services. State law provides that the circuit court 6 The IEP does conclude that Robert's behavioral problems interfere with his education and the education of other students, but it does so in the context of evaluating his basic need for special education services generally, not residential placement in particular. The IEP lists several interventions and special educational support services recommended to address Robert's behavioral problems (e.g., one-to-one assistance with school work, coping skill strategies, cool down periods), but does not specify that residential placement is recommended or necessary to Robert's educational progress. 7 Federal regulations require that the educational placement of a disabled child be "based on his or her IEP." 34 C.F.R. § 300.552(b)(2) (2000). 8 We also note that Stockbridge, Robert's original LEA, was not involved in placing Robert at either the Winnebago Mental Health Institute or Lakeview. The IEP created by Stockbridge placed Robert in regular classes with a full-time aide who worked with him on a variety of tasks. Both Randall and the County agree that these services were very beneficial to Robert's education. His educational needs were being met without placement in a residential program. This supports our conclusion that psychiatric needs triggered Robert's residential placement at Lakeview, not educational needs. 14 No. 01-1272 may include in a CHIPS dispositional order a requirement that the parent of a child placed in a residential treatment facility or child caring institution contribute to the support of the child. Wis. Stat. §§ 48.10(14)(b) and 48.355(2)(b)(4). ¶28 State law further provides that whenever a county or the state anticipates or recommends to a court that a child be placed in a child caring institution, the county or state "shall notify the responsible local educational agency," which in turn shall review "appoint and an revise, education program." individualized if education necessary, the program child's team to individualized Wis. Stat. § 115.81(3)(a) and (b)1. Under these circumstances, the county or state, rather than the LEA, is responsible for paying "all of the child caring institution related costs of educating the child while the child resides in the child caring institution." ¶29 Wis. Stat. § 115.81(4)(b)5. We read these state statutory provisions as allowing the circuit court to order child support when a CHIPS child is placed in residential treatment but precluding the court from assessing any of the facility's education-related costs against the parents of the child. There is no evidence that Randall's court-ordered of contribution $170 per week toward Robert's $9,000 per month care at Lakeview pertains to the facility's education-related costs. ¶30 Accordingly, because Robert's placement residential program at Lakeview was necessitated educational needs, but, rather, his mental not illness, in the by his and was brought about by the circuit court's CHIPS order rather than 15 No. 01-1272 Robert's IEP, it was not an educational placement for purposes of the IDEA. Therefore, the IDEA does not provide a basis for relief from the child support obligation under the CHIPS order. Nor does Wis. Stat. § 115.81 provide a basis for lifting that obligation. We affirm the circuit court's denial of Randall's motion for relief from the child support order. ¶31 By the Court. The order of the Calumet County Circuit Court is affirmed. 16 No. 1 01-1272

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