J.D. v. PLAINFIELD BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.D., o/b/o J.H.,

Petitioner-Appellant,

v.

PLAINFIELD BOARD OF EDUCATION,

Respondent-Respondent.

November 15, 2016

Submitted October 18, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from the Office of Administrative Law, Docket No. 2015-22478.

J.D., appellant pro se.

DiFrancesco, Bateman, Kunzman, Davis, Lehrer and Flaum, attorneys for respondent (Dayna R. Katz, on the brief).

PER CURIAM

Petitioner, J.D.,1appeals from the December 17, 2014 final decision of an administrative law judge (ALJ) dismissing her due process petition2that she filed pursuant to the Individuals with Disabilities Education Act (IDEA),320 U.S.C.A. 1400, etseq., against respondent, Plainfield Board of Education (BOE). J.D.'s petition alleged multiple deficiencies in her now nineteen-year-old son, J.H.'s individualized education program (IEP). J.H. is autistic and functions at a second-grade level. The ALJ dismissed the petition because it was not pursued by the educational surrogate (ES) appointed in an order entered by the Superior Court's Family Part, which also deprived J.D. from "mak[ing] educational decisions for [her son]."

At the time J.D. filed her petition, the Family Part had already entered an order on September 16, 2013, in a Title Nine action, N.J.S.A.9:6-8.21 to -8.73,4placing J.H. in the custody of the New Jersey Division of Child Protection and Permanency (Division). The court entered the order after J.D. allegedly failed to pick her son up from school over a four-day period or change his clothes.5

Despite the entry of the order transferring custody, J.D. filed her IDEA petition on August 28, 2014. While that matter was pending, the Family Part entered another order, pursuant to N.J.A.C.6A:14-2.2(a)(3),6and dated November 20, 2014, appointing J.H.'s paternal aunt as the ES, and further providing that "[J.D.] does not retain the right to make educational decisions for [J.H.] but can participate and shall receive notice of all meetings."

When J.D.'s petition came before the ALJ for a hearing the ES would not participate, despite being given an opportunity to appear. On December 17, 2014, the ALJ dismissed the petition without reaching the merits of J.D.'s petition.

In the ALJ's decision, the judge explained that the order dismissing the petition could be appealed under the IDEA only by filing an action in either the Superior Court's Law Division or the United States District Court in accordance with 20 U.S.C.A. 1415(i)(2); 34 C.F.R. 300.516 (2012). J.D. did not follow either alternative and instead filed this appeal.

Although J.D.'s notice of appeal and case information statement indicate that J.D. appeals only from the ALJ's final decision, she argues in her brief the merits of her due process petition that the ALJ never addressed, asks us to "affirm" a power of attorney executed by J.H. months after the ALJ's decision, and asserts that the Family Part's order placing J.H. in the Division's care and custody and appointing an ES violated her and her child's constitutional rights. She does not, however, argue the merits of the ALJ's order dismissing her petition.

We conclude from our review of the record and applicable legal principles that we are without jurisdiction to consider J.D.'s appeal as the IDEA requires that the state or federal trial court be the court of first instance to review the ALJ's final determination under the act. SeeBd. of Educ. of the Lenape Reg'l High Sch. Dist., Burlington Cnty., supra, 399 N.J. Super.at 605. Accordingly, we are constrained to dismiss J.D's appeal.

Even if we were not required to dismiss the appeal, we would be foreclosed from considering its merits because J.D. never argued why the ALJ's determination was not correct. Our review, if permitted, is limited to the order or judgment under appeal, seePressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2016) ("[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review."); see also, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff d o.b.138 N.J.41 (1994), and requires that an appellant brief the reasons why he or she believes the court erred in its entry of the order or judgment under review, or the matter is deemed to be abandoned. SeeDrinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub. Safety, 421 N.J. Super.489, 496 n.5 (App. Div. 2011). J.D. failed to argue why we should vacate the ALJ's determination regarding her inability to pursue the petition she filed.

Appeal dismissed.

1 J.D., who is an attorney, appeals also on behalf of her son, J.H.

2 See 20 U.S.C.A. 1415.

3 IDEA grants disabled children the right to a "[f]ree[,] appropriate public education." 20 U.S.C.A. 1412(a)(1). IDEA confers the primary obligation for meeting the goals of the statute upon the states. Bd. of Educ. of the Lenape Reg'l High Sch. Dist. v. N.J. Dep't of Educ., 399 N.J. Super. 595, 598 (App. Div. 2008) (citing Beth V. v. Carroll, 87 F.3d 80, 82 (3d Cir. 1996)).

"IDEA[] includes specific provisions guaranteeing a due process hearing, [20 U.S.C.A. 1415(f)(1)], and permitting an appeal from that decision, consistent with state law . . . ." Hasbrouck Heights Bd. of Educ. v. W.J., 358 N.J. Super. 8, 11 (App. Div. 2003).

The due process hearing request is [first] filed with [the Office of Special Education Programs (OSEP)], which transmits the matter to the [OAL] for hearing. The decision of the ALJ in those cases is the final decision at the administrative level and cannot be appealed to the Commissioner. See N.J.A.C. 6A:14-2.7(l). Rather, a party 'aggrieved' by the ALJ's decision may file a civil action in the Law Division of [the] Superior Court or in the United States District Court. See [20 U.S.C.A. 1415(i)(2)].

[Bd. of Educ. of the Lenape Reg'l High Sch. Dist., Burlington Cnty., supra, 399 N.J. Super. at 605 (emphasis added).]

4 "[T]he purpose animating Title [Nine] is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them." Dep t of Children & Families v. E.D.-O., 223 N.J. 166, 177 (2015) (citations and internal quotation marks omitted).

5 J.D. never filed an appeal of the Family Part's orders.

6

N.J.A.C. 6A:14-2.2(a)(3) requires the appointment of an education surrogate when a student is in the custody of DCPP. The regulation provides

[e]ach district board of education . . . shall ensure that the rights of a student are protected through the provision of an individual to act as surrogate for the parent and assume all parental rights under this chapter when . . . [a]n agency of the State of New Jersey has guardianship of the student . . . .

[Ibid.]