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Decision No. 14,388

Appeal of STEPHEN and ROSEANNE W., from actions of Dr. David Gee, Superintendent, Dr. V. Loiacono, Director of Special Education, Mr. Michael Flynn, Principal of James Allen School of the Western Suffolk Board of Cooperative Educational Services of Suffolk County, regarding child abuse allegations.

Decision No. 14,388

(June 14, 2000)

Ingerman Smith, LLP, attorneys for respondent, Anna M. Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioners seek relief from the report made by an employee of the James Allen School of the Western Suffolk Board of Cooperative Educational Services ("respondents") to the New York State Department of Social Services, Child Protective Services. The appeal must be dismissed.

Petitioners are the parents of R.M., an autistic student at the James Allen Elementary School. Ms. Carol Ostrov, R.M.'s special education teacher, and petitioners correspond by the exchange of notes written into a communications book. On December 2, 1999, Ms. Ostrov read a note from petitioners stating that petitioner Roseanne had attempted to hit R.M. with a belt on her "rear" but missed and got her on the thigh. Ms. Ostrov examined R.M. after reading the note and saw two red welts on R.M.'s thigh. She reported her finding to the principal, Mr. Michael Flynn. Mr. Flynn then contacted Dr. Norman Doctor, the Assistant Director of the Division of Special Education. The school social worker, Ms. Angela Cox, then reported the incident to Child Protective Services ("CPS"). On December 3, 1999, respondents made a written report to CPS.

Petitioners appear to contend that the report to CPS was improper. Respondents argue that the appeal must be dismissed because the petition was not properly served, it is untimely and it fails to state a claim for relief.

Initially, I will address several procedural issues. An appeal before the Commissioner must be initiated by personal service of the petition upon each named respondent, in accordance with 8 NYCRR "275.8(a) of the Commissioner’s regulations. That section provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent . . . . If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

The petition in this case was served by mail on respondent Gee on March 6, 2000 and was not personally delivered to Mr. Flynn, but to someone else for him. Section 275.8(a) of the Commissioner’s regulations requires that a copy of the petition be personally served upon each named respondent. Neither the superintendent nor the principal was personally served with the petition. Since the petition was neither personally served nor served on the proper parties, the appeal must be dismissed.

The appeal must also be dismissed as untimely. Pursuant to 8 NYCRR "275.16:

An appeal to the commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.

Respondents made the CPS report on December 2, 1999 and followed that with a written report on December 3, 1999. The appeal is untimely, as it was not commenced until March 6, 2000, more than three months from the date of the action from which they claim to be aggrieved. While the Commissioner may excuse a late appeal for good cause shown, no cause for this delay was even asserted. Accordingly, since the petition was filed more than thirty days after respondent’s determination to contact CPS, the appeal must be dismissed as untimely (see, e.g., Appeal of Swanson, 39 Ed Dept Rep 312, Decision No. 14,247).

The appeal must also be dismissed for failure to state a claim for relief. Section 275.10 of the Commissioner’s regulations requires in pertinent part that a petition "contain a clear and concise statement of petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which petitioner deems himself entitled." The entire petition dwells on the events surrounding the notification to CPS. The petition does not contain a demand for any relief. It fails to indicate what if any action petitioners are appealing, and merely assert that CPS should not have been notified. I am unable to determine with any specificity the nature of the relief sought or the basis for petitioners’ claim that they are entitled to any relief (Appeal of Blake, 37 Ed Dept Rep 250, Decision No. 13,852; Appeal of George, 33 id. 495, Decision No. 13,126). Accordingly, the petition must also be dismissed for failure to comply with 8 NYCRR "275.10.

The appeal must also be dismissed for lack of jurisdiction. Social Services Law ""411-28 sets forth the scheme for mandatory reporting by school officials of suspected cases of child abuse or maltreatment. I lack jurisdiction to address this matter, as the Commissioner of Education has no authority to review whether reports to CPS are appropriate pursuant to Social Services Law.

In light of my determination, there is no need to address the parties’ remaining contentions.