Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

A due process request as to [Student] was filed in two parts by her parents [Father] and [Mother] on April 14, 1999, and April 26, 1999. In a prehearing conference held on April 28, 1999, the attorney for the district brought a motion to dismiss the due process case indicating that the parents lack standing to proceed. The motion indicated that there was an educational guardian appointed by Dane County Circuit Court for [Student] in effect at the time that the due process request was made. A motion hearing date of May 19, 1999, at 9:30 a.m. at the [Unnamed] School District was scheduled. On May 19, 1999, [Mother] appeared first at 11:10 a.m. after being asked to appear by the Administrative Law Judge (ALJ). She then indicated that she did not appear on time because she had recently retained counsel and wanted an adjournment of the motion to dismiss. The district asked that the motion to dismiss be held in abeyance until counsel for the parent could review the file. The adjournment and request for the motion to be held at abeyance was granted. An extension of time requested by the parent was made until July 30, 1999.

A prehearing conference was held on May 28, 1999, between both counsel and the ALJ. The ALJ was informed that there was a new circuit court matter as [Student], which went to the heart of the due process matter, i.e., this was the continuing appointment of the educational guardian for this child. A phone conference between counsel and the ALJ was held. The ALJ was informed that the educational guardian’s appointment was continued; the district then renewed its request for a motion hearing on the issue of standing in the due process matter. A hearing date of July 16, 1999, was scheduled. Notice was given to counsel and both parents. Both parents and counsel for the mother and counsel for the district appeared at the July 16, 1999, hearing.

1. Does the appointment of an educational guardian under IDEA extinguish the rights of the biological parent to bring a due process request?
2. Do [Father] and [Mother] have standing to bring a due process action on behalf of their daughter, [Student]?

1. [Student] (d.o.b. xxxxx) is a student in the [Unnamed] School District (district).
2. [Student] has been identified as a child with exceptional needs in the areas of learning disabilities and speech/language.
3. The parent, [Mother], has filed a due process request as to [Student] on April 14, 1999, and April 26, 1999.
4. The District filed a motion to dismiss the due process action asserting that the parents had no standing to bring a due process action on behalf of [Student] because the educational authority was transferred to a court appointed guardian for [Student].
5. There was an educational guardian (Lauri Roman) appointed for [Student] when a due process request was filed by [Mother] in April, 1999. The educational guardian’s appointment was for the 1998-99 school year. The guardian was to continue to act until discharged by the court.
6. There was no information before the ALJ to indicated that the educational an guardian had been discharged by the court.
7. The appointment of the educational guardian for [Student] has been extended and will continue for the 1999-2000 school year.

1. The parents have no standing to challenge the educational plan for [Student] in aspect [effect] at this time.
2. The District has met their burden in its motion to dismiss for lack of standing.

The regulations under IDEA speak of standing and point out that the parents are parties who have standing to file due process requests on behalf of their children who are identified under IDEA as having a learning disability.

The federal regulations also identify that a guardian or surrogate parent can also initiate a due process request. Because the parents brought this action just prior to the enactment of the new regulations, a review of both the old and the new regulations as to who has the right to bring a due process hearing were reviewed as to these issues. Under 34 C.F.R Section 300.15 of the old regulations, the definition of parent includes a parent, a guardian or a person acting as a parent or surrogate parent. Under the new regulations, 34 C.F.R.Section 300.20(2), the same concept of parent or guardian is also reiterated. This section also notes the permissibility of the appointment of a guardian for solely educational purposes.

Guardians are considered appropriate persons to act under IDEA as to children identified under same. They are considered appropriate persons to participate and help implement the education of a child with specialized education needs.

Does the appointment of an educational guardian extinguish the rights of the parents to bring an action? The appointment of a guardian to act on behalf of a minor is issued by a State Circuit Court when the court deems such action necessary. Nothing in the regulations supercedes state court orders or guardianship law. A guardian has extensive and broad powers, which allows them to have complete authority to act in any capacity for which they are appointed. In a due process action, a party has standing if they have the authority to make educational decisions for their child. That powers vests automatically in a biological parent, but this power can be transferred to another person by court order or decree.

Case law discussing this concept under IDEA has addressed the issue of standing and the transfer of authority to a specific parent or to a surrogate parent in a number of cases. In divorce cases, parents who have a child identified under IDEA, often craft out specialized direction as to who will have the authority to participate in and initiate special education issues, including due process actions.

In other cases, surrogate parents have been assigned by courts to have standing in place of parents. In these cases, authority has been transferred to another designated person, leaving both natural parents without decision-making authority as to the educational needs of their child.

In In re: S.B., 28 IDELR 813, the impact of this transfer of authority was determined. That case indicated that state law precludes natural guardians from pursuing claims once custody has been transferred. This concept was also taken up by OSEP in Letter to Dunlap 211:462 which points out that the state can appropriately deal with matters related to the responsibility for educational decisions on behalf of a child. It also concluded that, OSEP would not intrude upon the jurisdiction of state courts.

In [Student] v. [Unnamed] School District, the district’s motion proffers a letter of guardianship indicating that Lauri Roman was appointed educational guardian for [Student] in May, 1998. This was to be for the 1998-1999 school year. That order was extended again on June 18, 1999, by the same circuit court for the 1999-2000 school year. Counsel for [Mother] points out that there was a "collapse" in this appointment because there was a "break" in the time period from the end of the school year in 1999, to the formal reappointment of the guardian for the child on June 18, 1999.

Exhibits filed by the district contained the court orders as to the educational guardian; they delineate her responsibilities, parent obligations and the letter of a guardianship, which specifically states that the educational authority of this is to be maintained until "discharged by this court". Nothing before this ALJ has been produced to determine that Ms. Roman has been discharged. It is Ms. Roman who has, for over the past year, had the sole responsibility to implement the educational plan for this child. Her testimony at the motion hearing outlined her efforts for the 1998-1999 school year. The parents are without standing to bring an action as to [Student]’s education. They must seek a remedy to extinguish the guardianship in circuit court in order to have standing to bring a due process request under IDEA.

NOW, THEREFORE, IT IS HEREBY ORDERED, that the due process matter filed by [Mother] on behalf of her and [Father], as to their daughter [Student], on April 14, and 26, 1999, is hereby DISMISSED, with prejudice for lack of standing.

Dated at Madison, Wisconsin, this 22^nd day of July, 1999.

NOTICE OF APPEAL