Appeal of S.S., on behalf of her son, T.K., from action of DONALD E. GOOLEY, Interim Superintendent of the Candor Central School District, regarding the investigation of an allegation of child abuse in an educational setting.

 

Decision No. 14,852

 

(March 20, 2003)

 

Hogan & Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges certain actions taken by Donald E. Gooley, Interim Superintendent of the Candor Central School District ("respondent"), during an investigation of an allegation of child abuse in an educational setting.  The appeal must be dismissed.

During the 2001-2002 school year, petitioner"s son, T.K., attended the Candor Elementary School ("school").  On January 29, 2002, two school employees, Melissa Van Atta ("Van Atta") and Tricia Hamilton ("Hamilton") escorted T.K. to the school"s time-out room after he refused to go to his science class.  Once in the time-out room, T.K. sat at a table and put his head down.  He failed to respond to any questions that Van Atta and Hamilton asked him.  T.K. also ripped up the self-discipline plan that he was required to complete.

Subsequently, Van Atta called petitioner to advise her of the situation.  Shortly thereafter, petitioner arrived at the school and entered the time-out room.  Petitioner unsuccessfully tried to get T.K. to explain what had happened and why he was upset.  T.K. continued to refuse to complete the self-discipline plan.  Ultimately, it was decided that T.K. should go home and that he would complete the self-discipline plan in school the following day.  When petitioner attempted to put T.K."s coat on him, he struggled to keep it off, yelled and banged his arms against the table, and dropped to the floor.  He then, while still screaming, crawled underneath the table and held on to the table legs.  Petitioner went under the table after him and attempted to remove T.K."s fingers from the table legs and to pick him up from the floor.  At this point, Hamilton left the time-out room to request that the principal, Joshua Bornstein ("Bornstein"), come observe what was happening.  In the interim, T.K. continued to hold on to the table legs, kick his feet in the air, and struggle to remain on the floor.  Petitioner removed his fingers from the table legs and proceeded to hold him down on the floor.  Van Atta assisted petitioner by holding T.K.'s legs.

Upon his arrival at the time-out room, Bornstein asked petitioner if he could take her place on the floor with T.K.  One of T.K."s arms was above his head.  According to respondent's answer, Bornstein grabbed T.K."s wrist and moved T.K."s arm from above his head to his side.  Bornstein held T.K."s arm in this position for a few minutes.  At some point, petitioner left the time-out room and called T.K."s grandmother to ask her to come to the school to assist her in taking T.K. home. Bornstein spoke to T.K. in an attempt to calm him down.  Eventually, T.K. regained control of himself and Bornstein asked Van Atta to leave the room so that he could talk to T.K. about what had happened.

When T.K. left the time-out room, petitioner noticed red marks on T.K."s wrists that looked like impressions made by fingernails.  These marks were partially covered with band-aids that T.K. claimed he had put on earlier in the day.  Petitioner also noticed that there was a light brush mark on one of T.K."s eyebrows and that the hairs of this eyebrow were askew.  T.K. then showed everyone a scrape on one of his knees.  This scrape had a band-aid on it.  T.K. claimed that he had gone to the school nurse at lunchtime to get this scrape cleaned and bandaged.  Petitioner also noticed that T.K. had a bruise on one of his arms.  T.K. then left the school with his family.

Another school employee, Hope Van Scoy ("Van Scoy"), observed Bornstein restraining T.K. through the time-out room"s window and was present when petitioner, T.K., his grandmother, and Bornstein exited the time-out room.

Shortly after this incident, petitioner met with respondent and alleged that Bornstein committed an act of child abuse when he repositioned T.K."s arm.  She claimed that Bornstein placed T.K.'s arm behind his back, injured his shoulder, and bruised his arm.  Respondent investigated the incident.  He interviewed Bornstein, Van Scoy, Van Atta, and Hamilton.  Respondent also reviewed the written reports of the incident prepared by Van Scoy, Van Atta, and Hamilton.  In addition, respondent spoke with petitioner regarding the incident.  However, respondent decided not to speak to T.K. because he felt that T.K."s emotional state during the incident would make him an unreliable witness.

By letter dated February 11, 2002, respondent informed petitioner that she was scheduled to discuss her child abuse allegation against Bornstein with the Board of Education of the Candor Central School District ("board") at an executive session on March 7, 2002.  On or about March 4, 2002, petitioner forwarded two information packets to respondent"s office, one for respondent and one for the board. Respondent held both packets and made them available at the meeting. Respondent also provided the board with copies of some of petitioner"s documents prior to this meeting.  There is a dispute between the parties as to whether petitioner provided each of the board members with copies of the information packet by the end of the March 7, 2002 meeting.

By letter dated March 13, 2002, respondent advised petitioner that he had concluded his investigation of her child abuse allegation against Bornstein.  Respondent further advised petitioner that he found that Bornstein had "used minimal and appropriate physical contact" and that no act of child abuse had occurred.

On March 21, 2002, the board met with petitioner for a second time to discuss her child abuse allegation.  Petitioner requested a more complete and thorough investigation and a report to the New York State Police ("State Police").  The board instructed respondent to inform the State Police of petitioner"s allegations, which he did on or about March 22, 2002. 

Petitioner alleges that respondent failed to comply with the child abuse in an educational setting reporting requirements contained in Article 23-B of the Education Law.  Specifically, she alleges that respondent did not provide her with either the report form or a written statement setting forth parental rights, responsibilities and procedures.  Petitioner further alleges that respondent did not interview all the witnesses to the alleged child abuse, willfully withheld information from the board, and willfully obstructed a proper investigation of her child abuse allegation.

Respondent alleges that he was not required to provide petitioner with a report form.  He also alleges that because he did not find that there was reasonable suspicion to believe that an act of child abuse had occurred, he was not required to provide petitioner with a written statement setting forth parental rights, responsibilities and procedures.  Respondent further alleges that the Commissioner is not authorized to grant the relief requested in the petition.

I must first address several procedural issues.  The record reveals that petitioner"s reply contains new factual allegations not previously stated or set forth in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Davies, 42 Ed Dept Rep ___, Decision No. 14,776; Appeal ofHuber, et al., 41 id. ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. 459, Decision No. 14,527).  Accordingly, while I have examined petitioner"s reply, I have not considered those portions that constitute new allegations which are not responsive to new material or affirmative defenses set forth in the answer. 

Respondent requests that I accept a sur-reply that addresses petitioner"s allegation that she did not provide each board member with a copy of the information packet by the end of the March 7, 2002 meeting.  Because the sur-reply addresses an allegation that is contained in both the petition and reply, I have accepted it.

As part of the Safe Schools Against Violence in Education Act (Chapter 180 of the Laws of 2000), a new Article 23-B of the Education Law was enacted, effective July 1, 2001, which requires certain school employees to report allegations of child abuse in an educational setting (Education Law ""1125 through 1133).  Education Law "1125(1) defines child abuse to include the following acts committed in an educational setting by an employee or volunteer against a child:

(a)         intentionally or recklessly inflicting physical injury, serious physical injury or death, or

(b)         intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death . . . .

Pursuant to Education Law ""1126 and 1128, where a superintendent receives an allegation of child abuse in an educational setting, he or she must complete the report form and determine whether there is a reasonable suspicion to believe that an act of child abuse has occurred.  If the superintendent finds reasonable suspicion to believe that an act of child abuse has occurred, additional steps must be taken which differ depending on the individual who has made the allegation.  If, as in this case, a parent makes the allegation, the superintendent must promptly provide the parent with a written statement setting forth parental rights, responsibilities and procedures prepared in accordance with the Commissioner's regulations (8 NYCRR "100.2[hh]) and forward a copy of a written report form to the appropriate law enforcement authorities (Education Law "1128[2]).

The reporting requirements set forth in Article 23-B are mandatory.  Willful failure of an employee to prepare and submit a report form as required by the law is a Class A Misdemeanor (Education Law "1129[1]).  A willful failure of a school building administrator or superintendent to forward a copy of the report form to the appropriate law enforcement authority is also a Class A Misdemeanor (Education Law "1129[2][a]).  In addition, the Commissioner can fine a school administrator or a superintendent up to $5,000 for failure to forward a copy of the completed report form to the appropriate law enforcement authority (Education Law "1129[2][b]).

In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and demonstrating a clear right to the relief requested (8 NYCRR "275.10; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683).  Petitioner has failed to meet this burden. The record does not substantiate petitioner"s claim that respondent willfully withheld information from the board regarding her allegation.  The record shows that though respondent did not provide the board with the information packet petitioner had prepared for it prior to the March 7, 2002 executive session, he did bring the information packet to that meeting and it was available for the board to review.  The record further shows that respondent provided the board with copies of some of petitioner"s documents prior to this meeting. Petitioner also was permitted to address the board on two separate occasions.

Moreover, the record shows that respondent complied with Article 23-B"s reporting requirements.  After receiving petitioner"s allegation that Bornstein had abused T.K., respondent investigated the allegation and completed the report form as required by Education Law "1126(1)(a). Article 23-B does not require that parents receive a copy of the report form. 

Furthermore, after conducting an investigation, respondent determined that there was no reasonable suspicion to believe that an act of child abuse had occurred.  Therefore, he was not required to forward the report form to law enforcement authorities or to provide petitioner with a written statement setting forth parental rights, responsibilities and procedures (Education Law "1128).

The record indicates that there was a rational basis for respondent"s determination that there was no reasonable suspicion to believe that an act of child abuse had occurred. It also indicates that respondent conducted a thorough investigation of petitioner"s allegation. The record contains written statements from three school employees regarding the incident.  The record also indicates that respondent interviewed all the school employees who witnessed all or part of the incident.  The record further shows that respondent spoke with petitioner at length regarding this incident and her allegation and gave her two opportunities to address the board.  Thus, petitioner has failed to show that respondent's determination lacked a rational basis or that he willfully obstructed the investigation of her allegation.

In light of this disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

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