Decision No. 13,446

(July 10, 1995)

Carl F. Becker, Esq., attorney for petitioner

SHELDON, Acting Commissioner.--Petitioner William R. Moon, Commissioner of Social Services for Delaware County, appeals on behalf of a child with a disability ("J.") placed in his custody by the Family Court in March 1988. Petitioner challenges the denial of financial responsibility by the Oneonta City School District and the Franklin Central School District for J.'s education in a Children's Residential Project (CRP). Petitioner seeks a determination designating the responsible district.

Pursuant to a preliminary Family Court order, J. was initially removed from her parents' custody on May 26, 1987, and temporarily placed with her aunt who lived in the Oneonta City School District. At the time the court removed J, she resided with her biological parents in the Franklin Central School District. On November 9, 1987, the Family Court adjudicated J. neglected and extended its order of custody to her aunt until April 1, 1988, when it was anticipated that J. would return to her parents' home. On December 11, 1987, however, J.'s aunt asked the Family Court to place J. in the custody of petitioner. That request was granted immediately, and so ordered on March 8, 1988.

On or about December 11, 1987, petitioner placed J. with a foster family located in the Delhi Central School District. According to the record, J. resided with that foster family in the Delhi district from December 11, 1987 to February 1992. In February 1992, Delhi's Committee on Special Education ("CSE") recommended J.'s placement in a CRP operated by the United Cerebral Palsy Association located in Utica, New York.

Petitioner asks me to identify the school district responsible for J.'s education and seeks reimbursement from the responsible school district for the State's share of the cost of her education. Petitioner alleges that at the time J. was initially placed by the court, her biological parents resided in the Franklin Central School District. Petitioner also alleges that the child was temporarily placed with her aunt in the Oneonta City School District.

Respondent Oneonta City School District asks that the appeal be dismissed as untimely. In addition, respondent Oneonta denies that the child in question is a resident of its district. Instead, respondent Oneonta asserts that in May 1987, when the child was initially removed from her home, she had been living with her parents in the Franklin Central School District. Respondent Oneonta also alleges that at the time petitioner assumed responsibility for the care, custody, support and maintenance of the child, the child's parents continued to live in the Franklin Central School District.

The Franklin Central School District, for its part, denies any obligation for the child's education. Respondent Franklin also seeks dismissal of the petition on the grounds that it fails to set forth a clear and concise statement upon which to base a claim, and that it improperly seeks a declaratory ruling. Respondent Franklin also argues that the petition is untimely. Respondent Franklin further challenges my ability to decide this matter impartially and seeks dismissal on those grounds as well.

Respondent Delhi Central School District seeks dismissal asserting that it entered into an agreement for temporary planning responsibility for J. Delhi contends this agreement exempts them from financial responsibility for the child's education and programming costs.

As a threshold matter, I will address the issue of bias. This petition was filed in August 1992. Because petitioner was not seeking funding from a local school district, but simply asked the responsible district to ensure that this student continued to receive a free appropriate public education, staff from my Office of Special Education Services (OSES) attempted to resolve the matter informally. Consequently, petitioner withdrew his petition without prejudice to his right to reinstate. After negotiations involving the parties failed, petitioner reinstated his appeal. The fact that settlement discussions involving my program staff took place when the petition was withdrawn does not compromise my ability as Commissioner to decide this matter independently. Consequently, lack of impartiality is not a basis under these facts to grant respondent's request to dismiss. In fact, to accept respondent's argument would substantially undermine the role of State Education Department program staff, and discourage future attempts to expeditiously resolve issues without long and costly litigation.

Regarding timeliness, an appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). The burden for establishing that an appeal is untimely lies with respondent. Although respondents offer conclusory statements that the petition is untimely, they fail to provide any facts to support their allegations. Moreover, the child in question is still placed in the CRP and, accordingly, the issue of a responsible district remains ripe for resolution. Accordingly, I have no basis to dismiss the appeal as untimely.

Regarding respondent Franklin's argument that petitioner is seeking a declaratory ruling, a declaratory ruling is defined as one that:

Although respondent Franklin correctly argues that the Commissioner does not issue declaratory rulings, it incorrectly characterizes petitioner's claim as such. Because petitioner is seeking specific relief against one of the respondents for actual expense incurred, the petition shall not be dismissed on the ground that it seeks a declaratory ruling.

Nor should the petition be dismissed for failure to state a claim upon which relief can be granted. I have reviewed respondents' answers and find that they were able to prepare adequate defenses to petitioner's claims. Because the intent of '275.10 is to assure that the opposing party has sufficient notice to prepare its response, I will not dismiss the appeal on this ground. There is simply no evidence before me to show that respondents were unable to prepare a defense to petitioner's claims.

With respect to the merits, children with disabilities may be referred to CRPs by the committee on special education of the school district of residence. CRPs are licensed by the Office of Mental Retardation and Developmental Disabilities. In accordance with Education Law '3202(5)(d)(14), the board of education "in which such child would be deemed to reside but for such child's placement" in the CRP is responsible for the child's education. Accordingly, the critical question in this case is where did J. "reside" but for her placement in the CRP on February 24, 1992.

While a child is presumed to reside with his/her parents or legal guardian, such presumption can be rebutted if a review of the totality of circumstances so dictates (Catlin v. Sobol, 77 NY2d 552, rev'd on other grounds, ___ F.Supp ___ [ND, NY, 3/30/95]). In particular, the presumption is rebutted when a child has a severe handicapping condition and it is established that the child's parents have surrendered control and that such control is being exercised by other persons with whom the child lives (Catlin v. Sobol, supra). In this case, the child has a severe handicapping condition and the record facts specifically rebut the presumption that J. resided with her parents in February 1992. J.'s parents relinquished legal custody and physical control of J. pursuant to a court order in May 1987. Since March 1988, petitioner Commissioner of DSS, and not J.'s parents, has been J.'s legal guardian. Moreover, it is undisputed that at the time J. was placed in the CRP, she was living in Delhi with a foster family. J. lived with this family for over four years before she was removed and placed in the CRP. At no time since J. was removed from her parents' custody in 1987 did J. return to live with them; nor did legal custody ever revert to J.'s parents, who themselves moved out of the Franklin district in 1988, years before J. was placed in the CRP. I thus find that, for purposes of Education Law ''3202[4] and 4402[2], J. resided within the Delhi Central School District in February 1992.

Pursuant to the Individuals with Disabilities Education Act ("IDEA"; 20 USC 1400 etseq), the CSE of the district of residence evaluates and makes appropriate placements for students to ensure a free appropriate public education. Upon review of the language and the legislative history of Education Law '3202(5)(d)(14), I find the intent of this statute was to have the district of residence evaluate a student, make a placement and then incur the financial responsibility resulting from that placement. Because Delhi is the district of residence, I find the Delhi CSD obligated to pay any retroactive and prospective costs for the evaluation and placement of this student pursuant to Education Law '3202(5)(d)(14).

I am unpersuaded by respondent Delhi's defense that it is exempt from financial responsibility because it entered into an agreement with Commissioner Moon at the time of J.'s placement, so stipulating. A stipulation which attempts to waive a party's statutory obligation is void as against public policy. Because Delhi is statutorily obligated as the school district of residence to continue to evaluate, make placements and incur any financial responsibility as a result of those placements, it cannot waive that legal responsibility. Accordingly, I find that the stipulation does not alter Delhi's obligation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 days of the date of this decision, respondent Delhi Central School District develop and review the IEP of the child on whose behalf this appeal was brought in accordance with Part 200 of the Commissioner's regulations; and

IT IS FURTHER ORDERED that the Delhi Central School District make any retroactive and prospective payment for the cost of placements to all appropriate parties.

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