Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
RosaLee Charpentier, Esq., attorney for petitioner
Michael K. Lambert, Esq., attorney for respondent
Petitioner appeals from a decision of an impartial hearing officer which held that petitioner lacked standing to seek an impartial hearing regarding his son’s educational placement. Petitioner asks that I annul the hearing officer's decision, and find that his son requires a residential placement. The appeal must be sustained in part.
Respondent raises two procedural issues in this appeal. First, respondent claims that petitioner’s notice of intention to seek review is defective. Petitioner’s notice does omit the required language regarding the preparation of the transcript and delivery of the transcript, exhibits and hearing officer’s decision to the Office of Counsel. The purpose of such requirement is to ensure that the record is provided to the State Review Officer. The record in this proceeding was provided. Therefore, petitioner's omission had no impact on this proceeding. Respondent also claims that the notice of intention to seek review and the petition were untimely. It appears from the record that the notice and the petition were served 10 days late. However, respondent has failed to show that it was prejudiced by the delay. In view of the circumstances, I will exercise my discretion and excuse the delay (Application of a Child with a Disability, Appeal No. 95-20; Application of a Child with a Disability, Appeal No. 97-37).
Petitioner’s son has been classified as multiply disabled. His classification is not in dispute. During the 1993-94 school year, petitioner’s son lived with petitioner and attended school in the Pine Plains Central School District where he received special education services. For the child’s 1994-95 school year, petitioner requested that the Pine Plains Committee on Special Education (CSE) recommend a placement at the Devereux Center (Devereux), a private school serving children with developmental and emotional disabilities in Red Hook, New York. The Pine Plains CSE, however, recommended a special education placement at the public school for that school year.
In a proceeding in the Dutchess County Family Court in November, 1994, the Family Court Judge adjudicated the child to be a juvenile delinquent and placed the child with the Department of Social Services (DSS) for an initial period of up to twelve months for placement at Devereux. He was placed in Devereux as a residential student. In November, 1995, the Family Court extended the child’s placement for an additional 12 months. In July, 1996, the child’s parents filed an application in Family Court requesting that the child’s placement at Devereux be continued. The child became 18 on August 20, 1996. The Family Court denied the parents' application in October, 1996.
Prior to the beginning of the 1996-97 school year, the Pine Plains CSE apparently recommended the same placement it had previously offered. The child’s parents disagreed with the recommendation and requested an impartial hearing. On November 19, 1996, an impartial hearing was conducted. Although that hearing is not the subject of this proceeding, a partial transcript of that hearing was attached to the petition in this case. From the incomplete transcript, it appears that the hearing officer in that proceeding determined that Devereux was the boy's pendency placement, a determination which I do not review in this proceeding.
On November 19, 1996, the child’s placement with DSS expired and the child was discharged from Devereux. Both parties agree that the child was placed in a foster home in the Wappingers Central School District (Wappingers) on that date, though the record does not contain any documentation regarding the nature of the placement. On January 27, 1997, the Wappingers CSE recommended that the child attend Devereux as a day student (Exhibit J to the Petition). The child began attending Devereux as a day student on January 31, 1997.
Petitioner objected to the child’s placement recommended by the Wappingers CSE. By letter dated January 30, 1997, petitioner requested an impartial hearing (Exhibit K to the Petition). The hearing began on March 21, 1997, at which time respondent challenged petitioner's standing. The parties agreed to brief their respective positions by March 24, 1997. The hearing resumed on March 28, 1997, when the hearing officer orally ruled that petitioner did not have standing to request that a hearing be held because he did not have legal custody of the child. The hearing officer determined that DSS had custody of the child. On May 5, 1997, the hearing officer rendered her written decision, in which she found that custody of the child had been transferred to DSS, citing a Temporary Order of Disposition of the Dutchess County Family Court, dated March 7, 1997. This appeal ensued.
The basic issue before me is whether, under the Individuals With Disabilities Education Act (IDEA), petitioner has standing to request an impartial hearing. Petitioner argues that the hearing officer’s decision is inaccurate, incorrect and without legal basis. He maintains that there is no foster care order or any other court order regarding custody of the child or terminating petitioner’s parental rights. He contends that his son needs a residential placement in order to achieve the educational objective of independent living. Additionally, petitioner claims that his son is incapable of making his own educational decisions due to his multiple disabilities, and asserts his right to continue parental control over his son.
Respondent contends that petitioner does not have custody of the child due to the Family Court order placing the child in the custody of DSS, and, therefore, does not have standing to request an impartial hearing. Additionally, respondent argues that should it be determined that petitioner has custody, or if petitioner regains custody, then any hearing challenging the child’s educational placement would not take place in Wappingers, but rather, in the district where petitioner resides.
The IDEA was enacted to assure that all children with disabilities have available to them a free appropriate public education and to assure that the rights of children with disabilities and their parents or guardians are protected (20 U.S.C. Section 1400 [c]). The IDEA requires that a free appropriate public education be available for all children with disabilities between the ages of three and 21 (20 U.S.C. Section 1412 [B]). The IDEA also sets forth procedural safeguards with respect to the provision of a free and appropriate public education which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (20 U.S.C. Section 1415 [b][E]). The plain language of 20 U.S.C. Section 1415 (b)(2) provides that the "parents or guardian shall have an opportunity for an impartial due process hearing." Under this plain language, the IDEA gives to the "parents or guardian" of a child the right to request a due process hearing. These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate. Honig v. Doe, 484 U.S. 305, 311-312 (1988).
I must note that no testimony was presented and no document was formally introduced into evidence in this proceeding (cf. Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35). Therefore, I have relied upon the attachments to the petition and the answer for the background information in this matter. There is no dispute that the child was discharged from Devereux at the age of 18 in November 1996, and he was placed in a foster home in Wappingers. There is, however, no court order or other documentation regarding this placement.
Respondent argues that once the child was placed in the custody of DSS, petitioner no longer had custody of the child. In support of its argument, respondent cites several cases standing for the proposition that noncustodial parents do not have standing to request an impartial hearing on behalf of their children (e.g., Appeal of Carubia, 25 Ed. Dept. Rep. 256). The cases cited by respondent are easily distinguishable from this matter in that there is nothing in the record demonstrating a custody dispute between the child’s parents. In fact, even though the parents separated and/or divorced when the child was three, it appears as though they have been in complete agreement with respect to the child’s educational issues.
Although the hearing officer relied upon the March 7, 1997 order of the Dutchess County Family Court, I must note that the order was entered after petitioner had requested a hearing in this proceeding, and that the Court subsequently indicated that it had no jurisdiction over the child (Exhibit M to the Petition). Additionally, there is nothing in the record establishing that DSS has custody. There is no Family Court order regarding the most current foster care placement, nor can there be as the child is over 18. There is no order terminating parental rights. Even if there was evidence of a transfer of custody to DSS, it does not necessarily follow that petitioner relinquished his rights with respect to the IDEA. IDEA and its procedural safeguards apply to children up to the age of 21 and their parents or guardians, and petitioner remains the child’s father, regardless of whether the child is in foster care. Whether a parent or guardian has custody of a child is one of many factors to be considered under IDEA, and does not, by itself, confer or defeat standing (W.T . v. Andalusia City Schools, 977 F. Supp 1437 [M.D., Ala., 1997]).
The record reveals that petitioner has participated in his son’s educational decisions even when the child was placed in foster care by the Family Court. There is no evidence that the petitioner’s parental rights have been terminated or were otherwise relinquished. Although the child is over 18 and his status is unclear, petitioner nevertheless has rights under the IDEA until the child reaches 21 or graduates from high school. Accordingly, I find that petitioner is a parent within the plain meaning of IDEA, and, therefore has standing to seek an impartial hearing. I have considered respondent's argument that if petitioner has standing to request a hearing, the hearing must be held by the Pine Plains Central School District. I do not agree with respondent. The child is living in respondent's district, and respondent's CSE has recommended a placement for him. Respondent must afford petitioner his due process right to challenge that recommendation. Therefore, the hearing officer's decision must be annulled.
As noted above, petitioner also asks me to determine that his son required a residential educational placement, notwithstanding the fact that there has been no hearing on that issue. I must decline his request (see Section 4404  of the Education Law).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall promptly arrange for a hearing to be held about the matters raised in petitioner's hearing request.
 Petitioner and his then wife adopted the boy at birth. Petitioner and his wife separated and/or divorced when the child was three years old. The child lived with his mother and went to school in the Brewster Central School District until the summer of 1993.
 Petitioner and his ex-wife objected to the Pine Plains CSE recommendation and requested a hearing. The hearing officer's decision was appealed, but was upheld in Application of a Child with a Disability, Appeal No. 95-35. The child's parents filed an action in Federal Court seeking review of my decision, and challenging an attempt by DSS to make them pay for a portion of the cost of their son's residential placement. The Court ultimately concluded that petitioner and his ex-wife could not be required to pay for their son's placement.