Appeal of F.K.W. on behalf of his children K.W. and B.W., from action of the Board of Education of the Mayfield Central School District and Paul Scott, as interim superintendent, regarding home instruction. 

Decision No. 16,919

(June 29, 2016)

Girvin & Ferlazzo, PC, attorneys for respondent, Tara L. Moffett, Esq., of counsel

ELIA, Commissioner.--Petitioner, the non-custodial parent of K.W. and B.W. (“the students”), appeals the determination of the Board of Education of Mayfield Central School District and Interim Superintendent Paul Scott ("respondents") that the Individualized Home Instruction Plans ("IHIP"), submitted for the students by their mother, meet the requirements of the Commissioner’s regulations (8 NYCRR §100.10).  The appeal must be dismissed.

Petitioner asserts that he has “co-educational decision making” authority pursuant to a divorce decree with his former spouse, the students’ mother, who has physical custody of the students.  The students and their mother reside in respondent’s school district.  For the 2013-2014 and 2014-2015 school years, the students’ mother elected to provide education to the students at home and submitted proposed IHIPs for the students to the district for a compliance review.  The IHIPs were reviewed and found to be compliant with the Commissioner’s regulations[1].  Therefore, the IHIPs formed the basis for the students’ home schooling program and reporting obligations for the relevant school years.

According to the record, correspondence dated September 1 and October 10, 2014, petitioner wrote to the district’s then-superintendent of schools and the elementary school principal.  While that correspondence is not part of the record, respondents submit a letter to petitioner, dated October 17, 2014, from Interim Superintendent of schools, Paul Scott, (“interim superintendent”) which purports to reply to petitioner’s correspondence of those dates.  It appears that petitioner submitted concerns regarding the adequacy of the students’ 2013-2014 IHIPs and the students’ mother’s compliance with a family court order.  The interim superintendent responded that the district has no authority to review or interpret a parent’s implementation of a family court order and that the students’ home instruction program met the standards of the Commissioner’s regulations.

The record indicates that petitioner hired an independent educational consultant (“consultant”) to review records, “homeschool filings” submitted to the district by the students’ mother, “technical assessment results and recommendations,” and academic work completed by the students.  In a report dated December 19, 2014, the consultant opined that the educational program for the 2014-2015 school year:

[D]oes not serve [the students’] needs as individual learners, does not meet current academic guidelines for their levels under New York State regulations, puts them at grave risk of academic failure or learning disability, lacks the sufficient foundation required in skill areas in order to pursue higher level content area learning in advanced grades, and additionally, the homeschooling filings submitted to Mayfield district are defective on their face.

It appears that this report was sent to the district, as the record contains a letter to petitioner, dated February 10, 2015 from the interim superintendent which references the report.  The letter states that the IHIPs submitted by the students’ mother and composite scores indicating the students’ progress meet the criteria in the Commissioner’s regulations.  This appeal ensued. 

While the petition is not entirely clear, it appears that petitioner is alleging “educational neglect” and argues that respondent has not upheld its obligations under Education Law and the Commissioner’s regulations.

In petitioner’s request for relief, he makes several requests for investigations.  For example, he asks that “an individual with such expertise and not directly associated” with respondent conduct “a professional review, report of findings and appropriate actions thereof” of petitioner’s claims and the opinion and findings of the consultant including a visit to the students’ mother’s home. 

Petitioner also requests that I order the students to attend public school with “remedial supports of a time and duration to settle all recognized deficiencies” or if instruction at home is permitted to continue, that I order supplemental remedial support.  He also requests that I “bolster training, education, and resources” so school districts “uphold the applicable regulations” and that I conduct an audit to determine if other students in New York State are “victims of educational neglect.” 

Respondents argue that the petition should be dismissed on procedural grounds.  Respondents contend that the appeal is untimely, that petitioner failed to join a necessary party - the students’ mother - and that the petition fails to state a claim upon which relief can be granted.  Respondents also argue that if the petition is not dismissed on procedural grounds, it be dismissed on the merits.  Finally, respondents object to content of petitioner’s reply.

I must first address several procedural issues.  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.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

By application dated November 9, 2015, petitioner requests that I consider additional information, specifically the students’ scores on the April 2015 State assessments in English Language Arts and Math.  By letter dated November 17, 2015, respondents objected to the submission on the grounds that petitioner is trying to use new information to bolster his prior claims and to add new claims for which the district has not been provided adequate notice.  Further, respondents argue that the result of the students’ performance on the 2015 State assessments does not bear relevance to the original claims raised in the appeal.  To the extent petitioner’s submission is relevant to his general claims that the students’ educational progress is insufficient, and was only received by him in November 2015, I have considered such submission.  

Nevertheless, the appeal must be dismissed as 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).

In this instance, the district issued two determinations:  the letter dated October 17, 2014, which deemed the 2013-2014 IHIPs in compliance with the Commissioner’s regulations; and the letter dated February 10, 2015, which deemed the 2014-2015 IHIPs in compliance with the Commissioner’s regulations.  The record does not indicate when petitioner actually received each determination; however, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be October 23, 2014 and February 17, 2015, respectively.  Therefore, petitioner had to commence his appeal involving the 2013-2014 IHIPs by November 24, 2014, and his appeal involving the 2015-2016 IHIPs by March 19, 2015.  The petition, however, was not served until April 1, 2015, more than thirty days after both dates.

Although section 275.16 of the Commissioner’s regulations requires that good cause for delay be alleged in the petition, petitioner failed to include any explanation the petition.  Instead, my Office of Counsel received a letter with the petition requesting a ”good cause waiver” due to “the potential educational neglect” of the students and “a [possible] potential class of students.”  Petitioner also argues that the appeal was initiated in response to the students’ mother filing a petition for modification of visitation in family court.  Petitioner also cites various responsibilities and argues that he has to “utilize spare time to execute actions” like this petition.  In his reply, petitioner admits that the request was provided only to the Commissioner of Education and that the “instructions do not require such filing be made to the respondent.”  Even if I accept petitioner’s letter, however, he offers no satisfactory explanation of why delays of four months and one month in commencing the appeal should be excused (Appeal of Hart, 54 Ed Dept Rep, Decision No. 16,671).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  I find no unusual circumstances in this case and, therefore, the appeal must be dismissed as untimely. 

Even if the appeal were not dismissed as untimely, it would be dismissed for failure to join a necessary party - the students’ mother.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Since petitioner seeks to revoke the home instruction being provided to the students by their mother, her rights would be adversely affected if the petition were granted (Appeal of S.I., 43 Ed Dept Rep 380, Decision No. 15,022).

The appeal is also moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner challenges respondents’ actions with respect to the students’ IHIPs for the 2013-2014 and 2014-2015 school years, which have ended.  Consequently, no meaningful relief can be granted and the appeal must be dismissed as moot (see e.g. Appeal of R.P. and D.P., 40 Ed Dept Rep 256, Decision No. 14,475).

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

THE APPEAL IS DISMISSED.

END OF FILE