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Decision No. 16,847

Appeal of M.I.B., on behalf of his son, from actions of the Board of Education of the Tuxedo Union Free School District regarding reports of child abuse.

Decision No. 16,847

(November 2, 2015)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges actions of the Board of Education of the Tuxedo Union Free School District (“respondent”) in making reports of child abuse to the New York State Department of Social Services, Child Protective Services (“CPS”).  The appeal must be dismissed.

Petitioner’s son (“the student”) attends school in respondent’s district.  Although the record is unclear about the time period at issue, insofar as relevant to this appeal, the record indicates that respondent’s staff has filed at least three separate reports with CPS based on suspected child abuse involving petitioner’s family. 

By letter to respondent’s president dated December 12, 2011, petitioner stated that “in the last few months” respondent had filed “(at least) three complaints” to CPS against the student’s family alleging child abuse.  Petitioner alleged that the latest CPS report at the time of the letter was a “fabrication and misstatement of facts” by respondent.  Petitioner stated that while he understood respondent had a duty to report any abuse to CPS, purposely filing “incorrect complaints on a regular basis” violated the law.  Petitioner requested, among other things, that an investigation be conducted and that “appropriate action” be taken against respondent’s employees. 

By letter dated February 7, 2012, respondent’s director of student services and human resources (“director”) acknowledged petitioner’s December 2011 letter and addressed the concerns contained therein.  Specifically, the director explained that all professional staff members of the school are mandated reporters of suspected child abuse to CPS, and outlined the procedures followed in making such reports.  The director also stated, among other things, that it had been found that proper procedures had been followed regarding petitioner’s complaints. 


Petitioner alleges on appeal that respondent is “harassing” his family by “repeatedly filing incorrect reports of [c]hild abuse” to CPS.  Petitioner states that he understands respondent has a duty to report suspected child abuse, however, he alleges that the complaints filed with CPS regarding the student were not based on facts.  Petitioner alleges that between March and November,[1] respondent had filed three reports, all of which were dismissed by CPS as unfounded.  In his appeal, petitioner specifically refutes the allegations made in one of the CPS complaints.  Petitioner claims that the February 7, 2012 letter from respondent leaves him with no option but to file an appeal.  Petitioner requests, among other things, that the Commissioner of Education determine if respondent engaged in “poor judgment or intentional mischaracterization” in the filing of the CPS complaints and that the Commissioner order respondent to stop harassing the student and “stop coercing him to make a false confession”.  Petitioner further requests that the Commissioner advise respondent to stop filing incorrect complaints to CPS and stop accusing petitioner of wrongdoing, that respondent contact petitioner for an explanation before initiating any further complaints to CPS, and that respondent not interrogate the student without petitioner’s consent.

Respondent asserts in its answer that the petition fails to state a claim upon which relief can be granted, that the Commissioner of Education lacks jurisdiction regarding CPS reports filed under the Social Services Law, and that the petition is untimely.

Initially, I must address two procedural matters.  Petitioner served a reply and respondent served a sur-reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Likewise, because I am not considering the new material raised in the petitioner’s reply, there is no need for me to consider respondent’s sur-reply or any of the parties’ subsequent submissions.

Next, respondent asserts that the petition is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Here, the record is unclear as to the date of the latest report filed with CPS.  In fact, the petition does not even specify the school year to which petitioner is referring when he says at least three reports were filed between March and November.  However, the record does indicate that petitioner wrote to respondent in December 2011, making several allegations and seeking various forms of relief.  Respondent replied to that letter on February 7, 2012.  Petitioner states in his appeal that upon receipt of the February 7, 2012 letter, he had no choice but to file this appeal.  The affidavit of service attached to the petition indicates that it was served on February 24, 2012; within 30 days from the February 7, 2012 letter denying petitioner’s requests made in the December 2011 letter.  Accordingly, I find that the petition is timely.

Nevertheless, the appeal must be dismissed for lack of jurisdiction.  The provisions of Article 6 of Title 6 of the Social Services Law (§§411-428) set forth the scheme for mandatory reporting by school officials of suspected cases of child abuse or maltreatment.  In this case, CPS investigated the reports about which petitioner complains and deemed them unfounded.  Therefore, the relief petitioner requests would be based on a finding that respondent engaged in misconduct by making the reports to CPS.  However, the Commissioner of Education has no authority to review whether such reports are appropriately made in accordance with the Social Services Law (Appeal of T.S., 49 Ed Dept Rep 311, Decision No. 16,038; see Appeal of Stephen and Roseanne W., 39 id. 808, Decision No. 14,388).  Moreover, the Commissioner has no jurisdiction to request that school officials stop filing reports of suspected abuse to CPS or that they contact the parents prior to doing so, which would undermine the legislative purpose in requiring that such reports be made by school officials (see Social Services Law §§411, 413).  Accordingly, the appeal must be dismissed for lack of jurisdiction. 

In light of this disposition, I need not consider the parties’ remaining contentions.




[1] Petitioner does not state the school year to which he is referring.