Fuentes v. Board of Education of the City of New York, No. 06-4715 (2d Cir. 2008)

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The court issued a subsequent related opinion or order on June 15, 2009.

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06-4715-pr Fuentes v. Board of Education of the City of New York 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: January 29, 2008 Question Certified: August 26, 2008) Docket No. 06-4715-pr -----------------------------------------------------x JESUS FUENTES, as a Parent of a Disabled Child, Plaintiff-Appellant, -- v. -BOARD OF EDUCATION OF THE CITY OF NEW YORK, BARRY MASTELLONE, Administrator of the HHVI of the Board of Education of the City of New York, and DENISE WASHINGTON, Chief Administrator of Impartial Hearing Office of the Board of Education of the City of New York, Defendants-Appellees. -----------------------------------------------------x B e f o r e : WALKER, CALABRESI, and RAGGI, Circuit Judges. Plaintiff-appellant Jesus Fuentes appeals from an order of 35 the United States District Court for the Eastern District of New 36 York (Frederic Block, Judge) dismissing plaintiff s complaint on 37 behalf of himself and his disabled son, pursuant to the 38 Individuals with Disabilities Education Act. 39 dismissed plaintiff s complaint on the ground that plaintiff, as 1 The district court 1 the non-custodial parent of the child, lacked standing to bring 2 such an action. 3 on a question of New York law that has not been addressed by the 4 New York Court of Appeals, we CERTIFY the question to the New 5 York Court of Appeals. Because we find that plaintiff s standing turns 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LISA A. KEENAN, LeBoeuf, Lamb, Greene & MacRae LLP (Lawrence W. Pollack, LeBoeuf, Lamb, Greene & MacRae LLP, and Shawn V. Morehead and Lucy Eagling, Advocates for Children of New York, Inc., on the brief), New York, N.Y., for Plaintiff-Appellant. SCOTT SHORR, Corporation Counsel of the City of New York, (Barry P. Schwartz, Corporation Counsel of the City of New York, of Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for DefendantsAppellees. JOHN M. WALKER, JR., Circuit Judge: The primary question presented by this appeal is whether a 29 biological and non-custodial parent of a disabled child has 30 standing to sue under the Individuals with Disabilities Education 31 Act ( IDEA ) to vindicate rights granted by the IDEA. 32 to this question is whether, under New York law, a biological and 33 non-custodial parent of a child retains the right to make 34 decisions regarding the child s education where the divorce 2 Critical 1 decree and custody order are silent as to the control of 2 educational decisions. 3 been decided by the New York Court of Appeals, and because it is 4 dispositive of the case, and because the answer to it will have 5 broad implications for custodial disputes under New York law, we 6 believe that the New York Court of Appeals should have the 7 opportunity to address it. 8 the New York Court of Appeals. Because the subsidiary question has not We therefore CERTIFY the question to 9 10 BACKGROUND 11 Shortly after he was born, Mathew Fuentes ( Mathew ) was 12 diagnosed with a genetic visual disorder that rendered him 13 legally blind. 14 ( Fuentes ) and Karen Fuentes, were divorced. 15 an Order Directing Custody was entered, granting Mathew s 16 mother exclusive custody of Mathew. 17 City public schools, where he received special education services 18 to accommodate his disability. 19 In 1996, Mathew s parents, Jesus Fuentes On August 1, 1996, Mathew attended New York In 2000, because Fuentes believed that the education 20 accommodations Mathew received were inadequate, Fuentes requested 21 that Mathew be reevaluated for additional services. 22 Committee on Special Education for the Hearing, Handicapped, and 23 Visually Impaired determined that Mathew s current services were 24 adequate, Fuentes requested a hearing to review the committee s 3 After the 1 determination. On January 8, 2001, the Impartial Hearing Office 2 denied Fuentes s request for a hearing. 3 Denise Washington, based her denial on Fuentes s custodial 4 status. 5 Washington determined that he was not the person in parental 6 relation as defined in N.Y. Educ. Law § 3212. 7 Washington concluded that Fuentes did not have the right to 8 participate in educational decisions affecting Mathew and refused 9 to process Fuentes s requests. Its Chief Administrator, Because Fuentes was the non-custodial parent of Mathew, Accordingly, Fuentes then brought this suit in 10 the District Court for the Eastern District of New York against 11 the New York City Board of Education ( BOE )under 42 U.S.C. § 12 1983 and Section 1415(f)(1) of the IDEA, 20 U.S.C. § 1415(f)(1). 13 Fuentes s pro se complaint alleged that he was denied his 14 rights under the IDEA (1) to review the BOE s written assessment 15 of Mathew s special education needs and (2) to be granted an 16 impartial hearing to petition for reconsideration of the BOE s 17 determination that Mathew did not need additional special 18 instruction. 19 Fed. R. Civ. P. 12(b) and (c), on the ground that Fuentes, as 20 Mathew s non-custodial parent, lacked standing under the IDEA to 21 exercise those rights. 22 Fuentes s failure to join a necessary party (Karen Fuentes) 23 warranted dismissal. 24 The BOE moved to dismiss the complaint, pursuant to In the alternative, the BOE argued that The district court (Frederic Block, Judge), applying Taylor 4 1 v. Vt. Dep t of Educ., 313 F.3d 768 (2d Cir. 2002), held that it 2 was required to look to state law to determine whether a 3 biological and non-custodial parent retains the power to make 4 special education decisions where the custody order and divorce 5 decree are silent in this respect. 6 New York law was not definitive on the question, the district 7 court concluded that under New York law a non-custodial parent 8 has no right to make special education decisions for the child, 9 and, therefore, that Fuentes lacked standing to bring the action. 10 Although acknowledging that Fuentes appealed that ruling to this court. In a summary 11 order, we agreed with the district court that our holding in 12 Taylor applied and that New York state law would generally be 13 determinative of whether a non-custodial parent could exercise 14 the rights granted by the IDEA. 15 N.Y., 136 F. App x 448, 449-50 (2d Cir. 2005). 16 accept, however, the district court s conclusion that New York 17 law denied Fuentes, as the non-custodial parent, the right to 18 participate in decisions with regard to the child s education. 19 Because we did not readily find controlling New York State 20 authority to guide our review, we stated our inclination to 21 certify the question to the New York Court of Appeals. 22 450. 23 district court so it could address the BOE s alternative ground 24 for dismissal: Fuentes s failure to join Karen Fuentes in the 25 suit. Fuentes v. Bd. of Educ. of We did not Id. at Before doing so, however, we remanded the case to the 5 1 On remand, the district court ruled that Karen Fuentes s 2 absence from the suit did not warrant dismissal, but again 3 dismissed Fuentes s case for lack of standing. 4 appeals that ruling. 5 court s resolution of the joinder issue. 6 whether Fuentes has standing to bring this action under the IDEA. Fuentes now The parties do not dispute the district Thus, we must address 7 8 9 10 DISCUSSION I. 11 Legal Standard We review the district court s dismissal of a complaint for 12 lack of standing de novo, accepting as true all material 13 allegations in the complaint and construing the complaint in 14 favor of the complaining party. 15 Servs. of Conn., Inc., 287 F.3d 110, 114 (2d Cir. 2002). Connecticut v. Physicians Health 16 17 18 II. Preliminary Issues Before turning to the question to be certified to the New 19 York Court of Appeals, we must first address Fuentes s contention 20 that certification is unnecessary because federal law is 21 dispositive of the case. 22 First, Fuentes claims that, under Taylor, if the divorce decree 23 and custody order do not specifically revoke a parental right, 24 the non-custodial parent retains that right for purposes of the 25 IDEA. He makes two arguments on this score. Second, Fuentes claims that amendments to the IDEA create 6 1 a presumption as a matter of federal law that biological parents 2 retain rights to sue under the IDEA as long as the custody order 3 and divorce decree do not restrict the biological parent s rights 4 with regard to control of education decisions, irrespective of 5 the biological parent s status under state law. 6 incorrect on both counts. 7 A. Taylor 8 9 Fuentes is Although neither the IDEA nor its federal regulatory scheme are models of clarity, we have consistently held that the 10 Act does not usurp the state s traditional role in setting 11 educational policy. 12 the statute incorporates state substantive standards as the 13 governing federal rule if they are consistent with the federal 14 scheme and meet the minimum requirements set forth by the IDEA. 15 Id. at 777 (internal citation omitted). 16 case, the non-custodial parent wished to assert rights under the 17 IDEA. 18 silent on the point, the Vermont divorce decree in Taylor 19 provided that the custodial parent was allocate[d] all legal 20 rights and physical rights regarding the choice of schooling for 21 the child. 22 that the non-custodial parent retained under the decree was the 23 right to reasonable information regarding the child s progress 24 in school. 25 Taylor, 313 F.3d at 776-77. To that end, In Taylor, as in this However, unlike this case in which the divorce decree is Id. at 772. The only power with regard to schooling Id. Despite the divorce decree s explicit grant of power to the 7 1 custodial parent, Taylor, the non-custodial parent, argued that 2 she retained the right to sue under the IDEA to enforce parental 3 rights. 4 considered a parent within the meaning of [20 U.S.C. 5 § 1401(19)(1997)]. 6 contained the following provision: Id. Her ability to do so turned on whether [she was] Id. at 776. At that time, the statute 7 8 9 10 11 12 13 14 15 20 U.S.C. § 1401(19)(1997). 16 regulations implementing the IDEA at that time contained the 17 following, more comprehensive definition: 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 The term parent -(A) includes a legal guardian; and (B) except as used in sections 1415(b)(2) and 1439(a)(5) of this title, includes an individual assigned under either of those sections to be a surrogate parent. (a) General. The Department of Education s As used in this part, the term parent means-- (1) A natural or adoptive parent of a child; (2) A guardian but not the State if the child is a ward of the State; (3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child s welfare); or (4) A surrogate parent who has been appointed in accordance with § 300.515. 34 C.F.R. § 300.20(a)(1999). We reasoned that 20 U.S.C. § 1401(19)(1997) did not provide 35 an exhaustive definition of the term parent. 36 at 777. Taylor, 313 F.3d We stated that [e]ven if the use of the expansive term 8 1 includes did not carry with it the strong implication that the 2 statute s definition of parent encompassed more than the two 3 categories specifically referenced, we would find it difficult to 4 credit a reading that excluded natural parents from the list of 5 persons who could exercise parental rights under the statute. 6 Id. 7 conveyed standing upon her, we concluded that the IDEA, in 8 combination with the Department of Education s regulations 9 implementing it, indicate that the listed persons qualifying as As to the non-custodial parent s claim that the regulations 10 parents may or may not be entitled to exercise parental rights 11 under the statute. 12 federal regulation establishes a range of persons who may be 13 considered a parent for purposes of the IDEA, but does not 14 require that any and all such persons must be granted statutory 15 rights. 16 that [g]iven the nature of the statutory scheme, [courts must] 17 look to state law . . . to establish which potential parent has 18 authority to make special education decisions for the child. 19 Id. at 779. 20 Hence, the natural reading is that the Id. at 778 (emphasis in original). We thus determined After making these preliminary determinations, we applied 21 state law. With regard to Taylor s demand for a hearing under 22 the IDEA, we noted that under Vermont law, Taylor s parental 23 right to participate in her daughter s education has been revoked 24 by a Vermont family court. 25 that Taylor lacked standing under the IDEA to demand a hearing. Id. at 782. 9 Accordingly, we held 1 Id. 2 found that, under the custody decree, Taylor retained the right 3 to reasonable information regarding the child s progress in 4 school and therefore had standing to bring a claim for access to 5 records under the IDEA. 6 omitted). 7 With regard to Taylor s records access claim, however, we Id. at 782, 786 (internal quotation In this case, Fuentes does not dispute that Taylor controls 8 our analysis. He argues, however, that despite Taylor s 9 direction that we must look to state law to determine standing, 10 we need only look to the divorce decree and custody order to 11 determine his rights and that Fuentes s divorce decree does not 12 revoke his right to participate in his son s education. 13 points to language in Taylor that a parent s rights under the 14 IDEA must be determined with reference to the rights [he] retains 15 under the state custody decree, id. at 786, and asserts that, in 16 the absence of a controlling provision in the divorce decree or 17 custody order to the contrary, he retains parental rights and 18 thus has standing. 19 Fuentes s argument is unpersuasive. He While it is true that 20 in Taylor we looked to the divorce decree to ascertain which 21 parent retained the right to control the child s education, we 22 did so because an affirmative provision in the decree one way or 23 the other would be controlling under Vermont law. 24 Fuentes s case, we will analyze whether the terms of his divorce 25 decree entitle him to make educational decisions for his son 10 Similarly, in 1 according to New York law. 2 affirmative revocation in order to deny Fuentes the right to 3 participate in his son s education will be decided by the New 4 York Court of Appeals should it choose to accept certification in 5 this case. 6 Whether that state s law requires an See infra at 18. Fuentes makes much ado about our statement in Taylor that 7 [b]ecause the custody decree has not specifically revoked her 8 informational access prerogatives, Taylor may pursue her record- 9 access claim under the IDEA. Id. at 786. He argues that this 10 statement makes clear that in our Circuit, if a decree does not 11 specifically revoke a parental right, the non-custodial parent 12 retains that right. 13 entire thrust of the Taylor opinion that we must look to state 14 law for the answer as to parental rights. 15 Taylor s application of state law to be an application of federal 16 law; nowhere in that case did we federalize family law by 17 creating a rule that, for IDEA purposes, parents retain all 18 rights not explicitly revoked by custody decrees. 19 think that this statement in Taylor was an inaccurate rendition 20 of the custody decree in that case, and, in any event, dicta. 21 The decree in Taylor was not silent as to the non-custodial 22 parent s rights to information as to the child s education. 23 specifically provided that the non-custodial parent retained the 24 right to reasonable access to information. 25 Vermont court had already determined that Taylor had a right to However, to so hold would contravene the 11 Fuentes misreads Moreover, we Id. at 772. It Thus, a 1 such information under state law. 2 state law is determinative on parental rights under the IDEA, we 3 concluded that Taylor had standing to sue for access to this 4 information in federal court. 5 argument that the custody order s silence here is determinative 6 in his favor. 7 B. 8 9 And following the rule that In sum, we reject Fuentes s Amendments to the IDEA Fuentes also argues that, in response to court decisions struggling with why biological parents were not specifically 10 included in the meaning of the term parent in the IDEA, 11 Congress amended the IDEA in 2005 in ways that have made the 12 intention of the IDEA in relation to parents far more certain. 13 Appellant s Br. at 21. 14 The IDEA now provides that: 15 16 17 18 19 20 The term parent means-- 20 U.S.C. § 1401(23)(2005). 21 that new DOE regulations enacted pursuant to the IDEA create 22 a presumption in favor of standing for biological parents 23 and that this presumption operates to confer standing upon 24 him. 25 26 27 28 29 30 (A) a natural, adoptive, or foster parent of a child . . . Furthermore, Fuentes contends The regulations provide: (b)(1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section 12 1 2 3 4 5 6 7 8 9 10 11 12 34 C.F.R. § 300.30(b)(2006). 13 create a presumption that a biological parent retains a right to 14 sue under the IDEA regardless of custodial status so long as the 15 decree at issue does not restrict the biological parent s rights 16 with regard to educational decisions. 17 position is supported by the drafters comments in the 2006 18 regulations of the Department of Education which provide that 19 [i]n situations where the parents of a child are divorced, the 20 parental rights established by the Act apply to both parents, 21 unless a court order or State law specifies otherwise. 22 Reg. 46,540, at *46,568 (August 14, 2006). 23 interpretation and argues also that if Fuentes is correct, 24 applying the new rule would pose retroactivity concerns. 25 unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. (2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the parent of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent for purposes of this section. Fuentes posits that these changes He further argues that his 71 Fed. The BOE contests this We need not address the BOE s retroactivity concerns because 26 the 2006 changes do not affect Fuentes s case. Importantly, 27 Fuentes ignores the language in the DOE regulations that state 28 that the presumption will not apply if the biological or 29 adoptive parent does not have legal authority to make educational 30 decisions for the child. 34 C.F.R. § 300.30(b)(1) (emphasis 13 1 added).1 2 determine who has such legal authority. 3 amendments to the statute and the regulations, state law is still 4 determinative of Fuentes s appeal. 5 C. 6 And Taylor makes clear that we look to state law to Thus, after the 2006 We now turn to that question. The Question Certified Under New York law and Second Circuit Local Rule § 0.27, we 7 may certify to the New York Court of Appeals determinative 8 questions of New York law [that] are involved in a case pending 9 before [us] for which no controlling precedent of the Court of 10 Appeals exists. N.Y. Comp. Codes R. & Regs. tit. 22, § 11 500.27(a) (2008). 12 device for securing prompt and authoritative resolution of 13 questions of state law. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 This process provides us with a valuable Briggs Ave., LLC v. Ins. Corp. of Fuentes does not argue that the 2006 amendments to the IDEA alone create standing for all natural parents to sue. Nor would we find such an argument tenable. In amending the IDEA, Congress adopted the DOE regulation s former list of permissible persons who may be considered a parent for purposes of the IDEA. As we stated in Taylor, the former regulation establish[ed] a range of persons who may be considered a parent for purposes of the IDEA, but d[id] not require that any and all such persons must be granted statutory rights. 313 F.3d at 778. In amending the statute, Congress did nothing that calls into question our interpretation of the former regulation, which is now incorporated into the current statute s definition of parent. We thus conclude that the 2005 amendments establish a range of persons who may exercise rights under the IDEA, but do not require that any and all such persons must be granted rights. Furthermore, because the IDEA does not clearly establish who has standing to sue when multiple persons qualify as parents under the statute, the new regulations presumption in favor of biological and adoptive parents, and corresponding exception where the parent lacks legal authority to act on behalf of the child, are reasonable agency interpretations of the statute as amended and thus entitled to deference. See Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 14 1 Hannover, 516 F.3d 42, 46 (2d Cir. 2008) (internal quotation 2 marks and citation omitted). 3 The parties briefing and our own research have not 4 uncovered controlling precedent from the New York Court of 5 Appeals as to whether the biological and non-custodial parent of 6 a child retains the right to participate in decisions pertaining 7 to the education of the child where (1) the custodial parent is 8 granted exclusive custody of the child and (2) the divorce decree 9 and custody order are silent as to the right to control education 10 decisions. 11 In Weiss v. Weiss, 52 N.Y.2d 170 (1981), a non-custodial 12 parent sued to enjoin the custodial parent from leaving the state 13 to take up residence in Las Vegas, Nevada. 14 separation agreement at issue in the case gave the non-custodial 15 parent broad visitation rights, of which the non-custodial parent 16 regularly availed himself. 17 custodial parent s planned move impermissibly interfered with 18 these visitation rights and upheld the appellate division s 19 injunction prohibiting the move. 20 opinion, Judge Meyer wrote to express his agreement with the 21 result on the facts and in the posture of th[e] case, but also 22 added that the majority gave too little consideration to the 23 principle . . . that it is the right of the custodial parent, 24 absent controlling contrary provisions in a separation agreement, 25 to determine the child s secular education program and religious Id. at 173. 15 Id. at 173-74. The The court ruled that the In a separate concurring 1 education program. 2 Though Judge Meyer s statement suggests that custodial parents 3 retain the right to control the child s educational program 4 absent a controlling provision in the custody order or divorce 5 decree, it was made in a concurrence and, therefore, is not 6 controlling precedent in New York. 7 Id. at 177 (internal citation omitted). In De Luca v. De Luca, 609 N.Y.S.2d 80 (App. Div. 2d Dep t 8 1994), a case where the non-custodial parent was concerned about 9 the child s exposure to the mother s choice of religion, the 10 court stated that [w]hether the subject matter is religion, 11 health care, or education, absent an agreement, the court will 12 not interfere with the custodial parent s decisions regarding the 13 children s upbringing. 14 Stevenot, 520 N.Y.S.2d 197 (App. Div. 2d Dep t 1987), the court 15 refrained from interfering with the custodial parent s religious 16 education decisions, finding that, absent an agreement between 17 the divorcing parents, the custodial parent is the proper party 18 to determine the children s religious training. 19 again in De Beer v. De Beer, 556 N.Y.S.2d 299 (App. Div. 1st 20 Dep t 1990), the court refused to interfere with the custodial 21 parent s choice of religious education for the child, noting that 22 religious education decisions are appropriately left in the 23 hands of the custodial parent absent compelling circumstances. 24 Id. at 300. In Parrinelli v. Parrinelli, 524 N.Y.S.2d 159 (Sup. 25 Ct. 1988), the court said that where an enforceable agreement Id. at 81. 16 Similarly in Stevenot v. Id. at 198. And 1 controlling the rights to make educational decisions is absent 2 and where the custodial and non-custodial parent disagree, the 3 choice rests with . . . the custodial parent. 4 Id. at 161. The position of the New York State Commissioner of Education 5 appears to be in line with the thinking of these cases. In an 6 opinion dismissing a non-custodial parent s appeal of the denial 7 of a hearing pursuant to the IDEA, the agency reasoned that [b]y 8 granting custody of a child to only one of the child s parents, a 9 court necessarily determines that the custodial parent shall be 10 responsible for decisions relative to the child s welfare, 11 including education. 12 258 (Jan. 14, 1986), E.H.L.R. Dec. 507:468 (SEA, N.Y. 1986). 13 Appeal of Carubia, 25 Ed. Dept. Rep. 256, Finally, New York treatises appear to have adopted the New 14 York Appellate Division s pronouncements as the law, stating that 15 when exclusive custody has been awarded to one parent, the 16 custodial parent, absent an enforceable agreement, has the 17 exclusive authority to decide matters of the child s education. 18 45 N.Y. Jur. 2d Dom. Rel. § 516; see also 2-34 N.Y. Practice 19 Guide: Domestic Relations § 34.01 ( an award of custody to one 20 party traditionally accords that party physical custody, i.e., 21 actual possession and control of a child . . . as well as 22 decision-making authority ). 23 Although the above lower court authority strongly indicates 24 that under New York law a non-custodial parent does not retain 25 the right to participate in education decisions for the child, 17 1 there is no controlling New York Court of Appeals authority on 2 point. 3 two departments of the Appellate Division as sufficiently 4 determinative to allow us to decide this case, we are reluctant 5 to take that final step in the absence of a Court of Appeals 6 pronouncement because the ruling has broad implications affecting 7 the custodial arrangements in New York -a matter of paramount 8 state concern. 9 before us and is one for which no controlling precedent exists, While we might normally accept the unanimous decisions of Because the question is determinative of the case 10 we choose to certify the question to the New York Court of 11 Appeals. 12 QUESTION CERTIFIED: Whether, under New York law, the 13 biological and non-custodial parent of a child retains the right 14 to participate in decisions pertaining to the education of the 15 child where (1) the custodial parent is granted exclusive custody 16 of the child and (2) the divorce decree and custody order are 17 silent as to the right to control such decisions. 18 19 CONCLUSION 20 For the foregoing reasons, it is hereby ORDERED that the 21 Clerk of Court transmit to the Clerk of the New York Court of 22 Appeals a copy of this opinion and a complete set of briefs, 23 appendices, and record filed by the parties in this court. 24 25 18

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