1

06-4715-pr Fuentesv. Board of

Education of

theCity of New York 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term 2007 7 8 (Argued:January 29, 2008 Question Certified: August 26, 2008) 9 10 Docket No. 06-4715-pr 11 12 -----------------------------------------------------x 13 14 JESUS FUENTES, as a Parent of a Disabled Child, 15 16 Plaintiff-Appellant, 17 18 -- v. -- 19 20 BOARD OF EDUCATION OF THE CITY OF NEW YORK, BARRY 21 MASTELLONE, Administrator of the HHVI of the Board of 22 Education of the City of New York, and DENISE 23WASHINGTON, Chief Administrator of Impartial Hearing 24 Office of the Board of Education of the City of New 25 York, 26 27 28 Defendants-Appellees. 29 30 -----------------------------------------------------x 31 32 B e f o r e :WALKER, CALABRESI, and RAGGI, Circuit Judges. 33 34 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. The district court 39 dismissed plaintiff’s complaint on the ground that plaintiff, as2 1 the non-custodial parent of the child, lacked standing to bring 2 such an action. Because we find that plaintiff’s standing turns 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. 6 7 LISA A. KEENAN, LeBoeuf, Lamb, 8 Greene & MacRae LLP (Lawrence W. 9 Pollack, LeBoeuf, Lamb, Greene & 10 MacRae LLP, and Shawn V. Morehead 11 and Lucy Eagling, Advocates for 12 Children of New York, Inc., on the 13 brief), New York, N.Y., for 14 Plaintiff-Appellant. 15 16 SCOTT SHORR, Corporation Counsel of 17 the City of New York, (Barry P. 18 Schwartz, Corporation Counsel of 19 the City of New York, of Counsel, 20 on the brief), for Michael A. 21 Cardozo, Corporation Counsel of the 22 City of New York, for Defendants23 Appellees. 24 25 26 27 JOHN M. WALKER, JR., Circuit Judge: 28 The primary question presented by this appeal is whether a 29biological and non-custodial parent of a disabled child has 30 standing to sue under the Individuals with Disabilities Education 31Act (“IDEA”) to vindicate rights granted by the IDEA. Critical 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 divorce3 1 decree and custody order are silent as to the control of 2 educational decisions. Because the subsidiary question has not 3been 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 5broad implications for custodial disputes under New York law, we 6believe that the New York Court of Appeals should have the 7 opportunity to address it. We therefore CERTIFY the question to 8 the New York Court of Appeals. 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. In 1996, Mathew’s parents, Jesus Fuentes 14 (“Fuentes”) and Karen Fuentes, were divorced. On August 1, 1996, 15 an “Order Directing Custody” was entered, granting Mathew’s 16mother exclusive custody of Mathew. Mathew attended New York 17 City public schools, where he received special education services 18 to accommodate his disability. 19 In 2000, because Fuentes believed that the education 20 accommodations Mathew received were inadequate, Fuentes requested 21 that Mathew be reevaluated for additional services. After the 22 Committee on Special Education for the Hearing, Handicapped, and 23Visually Impaired determined that Mathew’s current services were 24 adequate, Fuentes requested a hearing to review the committee’s4 1 determination. On January 8, 2001, the Impartial Hearing Office 2 denied Fuentes’s request for a hearing. Its Chief Administrator, 3 Denise Washington, based her denial on Fuentes’s custodial 4 status. Because Fuentes was the non-custodial parent of Mathew, 5Washington determined that he was not the “person in parental 6 relation” as defined in N.Y. Educ. Law § 3212. Accordingly, 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. 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. The BOE moved to dismiss the complaint, pursuant to 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. In the alternative, the BOE argued that 22 Fuentes’s failure to join a necessary party (Karen Fuentes) 23 warranted dismissal. 24 The district court (Frederic Block, Judge), applying Taylor5 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 3biological 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. Although acknowledging that 6New 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 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.” Fuentes v. Bd. of Educ. of 15 N.Y., 136 F. App’x 448, 449-50 (2d Cir. 2005). We did not 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. Id. at 22 450. Before doing so, however, we remanded the case to the 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.6 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. Fuentes now 4 appeals that ruling. The parties do not dispute the district 5 court’s resolution of the joinder issue. Thus, we must address 6whether Fuentes has standing to bring this action under the IDEA. 7 8 9 DISCUSSION 10 I.Legal Standard 11 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. Connecticut v. Physicians Health 15 Servs. of Conn., Inc., 287 F.3d 110, 114 (2d Cir. 2002). 16 17 II.Preliminary Issues 18 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. He makes two arguments on this score. 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. Second, Fuentes claims that amendments to the IDEA create7 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. Fuentes is 6 incorrect on both counts. 7A.Taylor 8 Although “neither the IDEA nor its federal regulatory 9 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.” Taylor, 313 F.3d at 776-77. To that end, 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). In Taylor, as in this 16 case, the non-custodial parent wished to assert rights under the 17 IDEA. However, unlike this case in which the divorce decree is 18 silent on the point, the Vermont divorce decree in Taylor 19provided that the custodial parent was “allocate[d] all legal 20 rights and physical rights regarding the choice of schooling for 21 the child.” Id. at 772. The only power with regard to schooling 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.” Id. 25 Despite the divorce decree’s explicit grant of power to the8 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. Id. Her ability to do so turned on “whether [she was] 4 considered a ‘parent’ within the meaning of [20 U.S.C. 5 § 1401(19)(1997)].” Id. at 776. At that time, the statute 6 contained the following provision: 7 The term “parent”-- 8 9 (A) includes a legal guardian; and 10 11 (B) except as used in sections 1415(b)(2) and 1439(a)(5) of 12 this title, includes an individual assigned under either of 13 those sections to be a surrogate parent. 14 15 20 U.S.C. § 1401(19)(1997). The Department of Education’s 16 regulations implementing the IDEA at that time contained the 17 following, more comprehensive definition: 18 (a) General. As used in this part, the term parent means-- 19 20 (1) A natural or adoptive parent of a child; 21 22 (2) A guardian but not the State if the child is a ward of 23 the State; 24 25 (3) A person acting in the place of a parent (such as a 26 grandparent or stepparent with whom the child lives, or a 27 person who is legally responsible for the child’s welfare); 28 or 29 30 (4) A surrogate parent who has been appointed in accordance 31 with § 300.515. 32 33 34 C.F.R. § 300.20(a)(1999). 34 We reasoned that 20 U.S.C. § 1401(19)(1997) did not provide 35 an exhaustive definition of the term “parent.” Taylor, 313 F.3d 36 at 777. We stated that “[e]ven if the use of the expansive term9 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 5persons who could exercise parental rights under the statute.” 6 Id. As to the non-custodial parent’s claim that the regulations 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 10 “parents” “may or may not be entitled to exercise parental rights 11 under the statute. Hence, the natural reading is that the 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.” Id. at 778 (emphasis in original). We thus determined 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 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.” Id. at 782. Accordingly, we held 25 that Taylor lacked standing under the IDEA to demand a hearing.10 1 Id. With regard to Taylor’s records access claim, however, we 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. Id. at 782, 786 (internal quotation 6 omitted). 7 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. He 13points 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. 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. Similarly, in 24 Fuentes’s case, we will analyze whether the terms of his divorce 25 decree entitle him to make educational decisions for his son11 1 according to New York law. Whether that state’s law requires an 2 affirmative revocation in order to deny Fuentes the right to 3participate 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. See infra at 18. 6 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 record9 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. However, to so hold would contravene the 13 entire thrust of the Taylor opinion that we must look to state 14 law for the answer as to parental rights. Fuentes misreads 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. Moreover, we 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. It 23 specifically provided that the non-custodial parent retained the 24 right to reasonable access to information. Id. at 772. Thus, a 25Vermont court had already determined that Taylor had a right to12 1 such information under state law. And following the rule that 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. In sum, we reject Fuentes’s 5 argument that the custody order’s silence here is determinative 6 in his favor. 7 B.Amendments to the IDEA 8 Fuentes also argues that, in response to court decisions 9 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.” 13Appellant’s Br. at 21. 14 The IDEA now provides that: 15 The term “parent” means-- 16 17 (A) a natural, adoptive, or foster parent of a child . 18 . . 19 20 20 U.S.C. § 1401(23)(2005). Furthermore, Fuentes contends 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. The regulations provide: 25 (b)(1) Except as provided in paragraph (b)(2) of this 26 section, the biological or adoptive parent, when 27 attempting to act as the parent under this part and 28 when more than one party is qualified under paragraph 29 (a) of this section to act as a parent, must be 30 presumed to be the parent for purposes of this section13 1 unless the biological or adoptive parent does not have 2 legal authority to make educational decisions for the 3 child. 4 5 (2) If a judicial decree or order identifies a specific 6 person or persons under paragraphs (a)(1) through (4) 7 of this section to act as the “parent” of a child or to 8 make educational decisions on behalf of a child, then 9 such person or persons shall be determined to be the 10 “parent” for purposes of this section. 11 12 34 C.F.R. § 300.30(b)(2006). Fuentes posits that these changes 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 16with regard to educational decisions. He further argues that his 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.” 71 Fed. 22 Reg. 46,540, at *46,568 (August 14, 2006). The BOE contests this 23 interpretation and argues also that if Fuentes is correct, 24 applying the new rule would pose retroactivity concerns. 25 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) (emphasis1 Fuentes does not argue that the 2006 amendments to the IDEA 1 2 alone create standing for all natural parents to sue. Nor would 3 we find such an argument tenable. In amending the IDEA, Congress 4 adopted the DOE regulation’s former list of permissible persons 5 who may be considered a parent for purposes of the IDEA. As we 6 stated in Taylor, the former “regulation establish[ed] a range of 7 persons who may be considered a parent for purposes of the IDEA, 8 but d[id] not require that any and all such persons must be 9 granted statutory rights.” 313 F.3d at 778. In amending the 10 statute, Congress did nothing that calls into question our 11 interpretation of the former regulation, which is now 12 incorporated into the current statute’s definition of parent. We 13 thus conclude that the 2005 amendments establish a range of 14 persons who may exercise rights under the IDEA, but do not 15 require that any and all such persons must be granted rights. 16 Furthermore, because the IDEA does not clearly establish who has 17 standing to sue when multiple persons qualify as “parents” under 18 the statute, the new regulations’ presumption in favor of 19biological and adoptive parents, and corresponding exception 20 where the parent lacks legal authority to act on behalf of the 21 child, are reasonable agency interpretations of the statute as 22 amended and thus entitled to deference. See Chevron v. Natural 23 Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 14 1 added).And Taylor makes clear that we look to state law to 1 2 determine who has such legal authority. Thus, after the 2006 3 amendments to the statute and the regulations, state law is still 4 determinative of Fuentes’s appeal. We now turn to that question. 5 C.The Question Certified 6 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 9before [us] for which no controlling precedent of the Court of 10Appeals exists.” N.Y. Comp. Codes R. & Regs. tit. 22, § 11 500.27(a) (2008). This “process provides us with a valuable 12 device for securing prompt and authoritative resolution of 13 questions of state law.” Briggs Ave., LLC v. Ins. Corp. of15 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 5Appeals 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. Id. at 173-74. The 14 separation agreement at issue in the case gave the non-custodial 15parent broad visitation rights, of which the non-custodial parent 16 regularly availed himself. Id. at 173. The court ruled that the 17 custodial parent’s planned move impermissibly interfered with 18 these visitation rights and upheld the appellate division’s 19 injunction prohibiting the move. In a separate concurring 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 23principle . . . 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 religious16 1 education program.” Id. at 177 (internal citation omitted). 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 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.” Id. at 81. Similarly in Stevenot v. 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.” Id. at 198. And 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 agreement17 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.” Id. at 161. 4 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.” Appeal of Carubia, 25 Ed. Dept. Rep. 256, 12 258 (Jan. 14, 1986), E.H.L.R. Dec. 507:468 (SEA, N.Y. 1986). 13 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,18 1 there is no controlling New York Court of Appeals authority on 2 point. While we might normally accept the unanimous decisions of 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 6pronouncement because the ruling has broad implications affecting 7 the custodial arrangements in New York–-a matter of paramount 8 state concern. Because the question is determinative of the case 9before us and is one for which no controlling precedent exists, 10 we choose to certify the question to the New York Court of 11Appeals. 12 QUESTION CERTIFIED: Whether, under New York law, the 13biological 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