September 11, 2013
IN THE MATTER OF C.S., Petitioner,
MONTANA SECOND JUDICIAL DISTRICT COURT, BUTTE SILVER BOW COUNTY, MONTANA, THE HONORABLE BRAD NEWMAN, Presiding Judge, Respondent.
Petitioner C.S., by and through his counsel, Disability Rights Montana, has petitioned for a writ of supervisory control over an order entered by the Second Judicial District Court that appointed a surrogate parent for C, S. upon the request of Butte School District #1 (School District). See In The Matter of CS., Incapacitated Person, Silver Bow County, DN-13-4. We issued an order granting Respondent District Court and the School District 20 days to respond to the petition, and responses from both have been filed.
C.S. has been a student in the School District for the past three years. He is diagnosed with autism, and has a limited ability to regulate sensory input, receive and express information, and control his behavior when experiencing communication difficulties. Attempts have been made by his community support team to implement an appropriate individualized education program (IED) for C.S. with the School District pursuant to the Individuals with Disabilities Improvement Act of 2004, or IDEA. 20 U.S.C. § 1400 et seq. IDEA requires input from a student's parent or surrogate in the development of an IED, and approval of an IED's implementation by a parent/surrogate or the student, if an adult. The State Developmental Disabilities Program has determined that it is not in C.S.'s best interests for his mother to make major life decisions for him, and has instead delegated that responsibility to C.S.'s foster father, Stuart McCarvel. C.S. is an adult, being 19 years old, but has not approved an IED for himself. A report filed by the Office of Public Instruction (OPI) in response to a complaint filed by McCarvel on C.S.'s behalf against the School District for failing to provide proper educational services questioned whether C.S. was "capable for competent" to make appropriate decisions or choose an agent, and he "could benefit from someone to assist him in his educational decisions." OPI Compliance Officer Ann Gilkey concluded that the School District had committed several violations in the provision of educational services to C.S., and ordered that the School District, inter alia, "promptly attempt to obtain appointment of a surrogate parent, or other judicial appointment for educational services" for C.S.
School District, by the Butte-Silver Bow County Attorney, thereafter filed a request for appointment of a surrogate parent with the District Court, pursuant to § 20-7-461, MCA, one of several statutes enacted to coordinate IDEA in Montana. School District did not serve or otherwise notify C.S. or McCarvel of this request, and the statute does not expressly provide for service or notice. The District Court appointed Mary Jo Mahoney to be C.S.'s surrogate parent, as requested by School District. Upon learning of Mahoney's appointment, C.S. filed a motion to vacate the appointment, which was denied by the District Court. C.S. has now petitioned for supervisory control over the District Court's order appointing Mahoney, asserting a failure of due process and of compliance with IDEA requirements.
Supervisory control is an extraordinary remedy that we review on a case-by-case basis to determine if urgency or emergency factors exist making the normal appeal process inadequate to prevent a gross injustice from occurring. M. R. App. P. 14(3). Having reviewed the petition and responses, we conclude that emergency factors do not exist making the normal appeal process inadequate to prevent a gross injustice. C.S. argues that Mahoney may not pursue claims for educational services he wants to make, but that is a speculative basis for supervisory control. Further, the federal statutory and regulatory provisions governing IDEA, the applicable state law provisions, and the requirements of due process would be more properly analyzed with full briefing in an appeal. Therefore,
IT IS HEREBY ORDERED that the petition for supervisory control is DENIED. The Clerk is directed to provide copies of this Order to counsel of record in Silver Bow County Cause No. DN-13-4 and to the Honorable Brad Newman, District Judge.