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Decision No. 12,728

Appeal of A CHILD WITH A HANDICAPPING CONDITION from action of the Board of Education of the Wappingers Central School District regarding the Family Court Act.

Decision No. 12,728

(June 26, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an opinion on whether it was proper for school officials in respondent's district to consider initiating a proceeding in the Family Court of the State of New York ("Family Court") to determine whether her son should have been adjudicated a "person in need of supervision" (PINS) pursuant to Article 7 of the Family Court Act. The appeal must be dismissed.

Petitioner's son is epileptic. The record indicates that, in response to petitioner's son's numerous absences from school, respondent's coordinator of pupil personnel recommended that the principal initiate a PINS petition in Family Court. After considering whether to initiate the petition, school officials determined not to do so. Instead, the district conducted a neurological evaluation and subsequently classified petitioner's son as "other health impaired" pursuant to Article 89 of the Education Law (see, Application of a Child with a Handicapping Condition, Appeal No. 92-18). Consequently, the matter is academic as no case or controversy exists. To the extent that petitioner seeks an advisory opinion, I will not issue purely advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of a Child with a Handicapping Condition, 30 id. 262; Application of a Child with a Handicapping Condition, 30 id. 53).

It must be noted, however, that, although school officials are authorized to pursue PINS petitions against habitual truants (Family Court Act "733) and are required to report to the Central Registry educational neglect pursuant to Social Services Law "913, where a child's absences may be attributable to a handicapping condition, a school district's first obligation is to refer the child to its committee on special education for evaluation to determine whether the pupil requires special education services. In this instance, respondent correctly determined not to address this pupil's poor attendance in Family Court but instead took steps to address his needs by other, more appropriate, means.