99-088

        Petitioners appeal from the decision of an impartial hearing officer holding that the school district may evaluate petitioners' child despite petitioners' refusal to consent. The hearing officer found that the Erie County Department of Social Services was an eligible party to refer the child for evaluation, and she further found that circumstances warranted an evaluation. The appeal must be sustained.

        Petitioners' child was nine-years-old at the time of the hearing (Vol. I, p. 42). She had been taught at home by her parents until Spring, 1998 (Vol. II, p. 15). At that time, the child’s parents were reportedly incarcerated, and the child was removed from her parents' home by the Erie County Department of Social Services. The Department of Social Services was granted a temporary remand for the child and her siblings (Exhibit P-2; Transcript of April 7, 1998 Family Court hearing). On November 30, 1998, the Erie County Family Court determined that the child and her siblings were neglected children under the Family Court Act, and ordered that the child and her siblings be placed in the custody of the Commissioner of the Erie County Department of Social Services for a period of twelve months (Order of Family Court, dated November 30, 1998). The parents retained legal guardianship of the child, but she and her younger brother were placed with a foster parent in May, 1998 (Vol. II, pp. 15, 16).

        The child began school in October, 1998 (Vol. I, p. 38). Although she was old enough to have been placed in the fourth grade, she was placed in a third grade classroom. Her third grade teacher testified at the hearing in this proceeding that the child had no word attack skills, knew no sight vocabulary, and she was reading at about a late first grade level at the time of her entry into school. The child was placed in respondent’s pupils with compensatory educational needs (PCEN) program which serves at risk students and students with special needs, because she had performed poorly on tests administered shortly after she began school. The child reportedly had the most difficulty with reading, English and language. Although she continued to perform below grade level in math, her math skills improved over the course of the school year. However, she still had no word attack skills and only a very limited sight vocabulary by the end of the 1998-99 school year.

        The child’s third grade teacher and her foster mother were concerned about her performance in school. The teacher testified that she had at least six conversations with the child's foster mother regarding the child's academic difficulties as well as trouble she seemed to have with self -control. The teacher stated that she was unsure whether the child had special education needs, but felt that it was appropriate to evaluate the child. She testified that she would have submitted a referral for evaluation if the foster mother had not submitted one (Vol. I, pp. 40, 41, 45). The foster mother submitted a referral for evaluation to the child's case worker from the Department of Social Services. In a letter dated February 19, 1999, the case worker requested an evaluation for the child. The letter indicated that the case worker had sought consent from the parents, but the parents had refused. The case worker sent the consent forms to the school district unsigned and requested that a "parent advocate" seek consent for an evaluation of the child. The case worker requested that the testing process begin as quickly as possible so that the child could receive the help she needed to prosper (Exhibit SD-10).

        The child’s progress report dated April 16, 1999 indicated that she had achieved satisfactory grades in PCEN reading, Chapter 1 (remedial) reading, social studies, PCEN math, science, and health. The child's teacher for Chapter 1 reading commented that the child needed to develop more self- control and responsible behavior. The child achieved an average of seventy in English, reading, and spelling. Her teacher for English and reading noted that the child required extended time to complete English assignments and her reading was below grade level. The child achieved an excellent grade in physical education, an A in music and a B in art. The child did not receive a grade in Chapter 1 math, but her teacher commented that the child was an inconsistent worker and she needed more home study. Despite this comment from the Chapter 1 math teacher, the child achieved an average of 90 in her regular math class. The child achieved a final average of 90 in home and careers (Exhibit SD-12).

        On April 19, 1999, the Terra Nova test was administered to the child. The child's scores were below average in every category. She achieved a score in the third percentile in reading, a score in the twentieth percentile for language, and a score in the third percentile for math. Her total score was in the fifth percentile (Exhibit SD-14). Despite her poor standardized test scores, the child achieved passing grades in every class at the end of the school year. The child's final averages in PCEN reading, PCEN math, social studies and science were all satisfactory. She achieved a final average of 72 in English, 70 in reading, 74 in spelling, and 76 in math and a final grade of B in art (Exhibit SD-12). Although the child received passing grades on her report card, her third grade teacher testified that she believed that the child would have difficulty in the fourth grade because she was functioning well below grade level (Vol. I, pp. 39, 40).

        Respondent attempted to obtain petitioners’ consent for an evaluation of their child’s educational needs. On April 19, 1999, a school district paralegal had a telephone conversation with the child's mother in which he requested her consent to evaluate the child. The mother apparently requested additional information regarding special education, which was sent to the parents on April 24. On May 6, 1999, the paralegal indicated to the parents that the school district intended to initiate a hearing to obtain authorization to evaluate the child without their consent (Exhibit SD-1). The district’s CSE coordinator also corresponded with petitioners about consenting to an evaluation (Exhibit SD-6). The parents apparently did not respond.

        The hearing in this proceeding, was originally scheduled to be held on June 24. It was first adjourned to July 15 and then adjourned to August 5 (Exhibits SD-2, SD-3). The hearing took place on August 5 and August 12. The hearing was held to determine whether the child should be evaluated, notwithstanding her parents’ refusal to consent to the evaluation, in accordance with the provisions of former 34 CFR 300.504 (b) (3) and 8 NYCRR 200.5(b)(3). Respondent’s representative advised the hearing officer that although the child was in foster care, her parents had certain rights, including the right to consent or withhold consent to an evaluation. The child’s mother asserted that her daughter was being illegally kept in foster care, and that the child did not fit in any of the categories which would qualify her to receive special education. She indicated that she wished to subpoena certain witnesses, and that she wished to have the Family Court judge testify about the foster care issue. The hearing officer explained to petitioners that the issue of alleged fraud by the Department of Social Services and the Family Court was outside of her jurisdiction.

        In her decision which was rendered on September 15, 1999,the hearing officer held that the school district could evaluate the child without the consent of the parents. She dismissed petitioners’ contention that the Erie County Department of Social Services was not an appropriate party to refer their child to respondent’s committee on special education (CSE) for an evaluation. The hearing officer found that the circumstances warranted the child’s referral for an evaluation because the child’s academic skills were substantially below grade level. She noted that the child had not been in a regular classroom before the 1998-99 school year because she had been home schooled by her parents, but found that the information which petitioners had provided about their child’s home schooling did not establish what the child’s reading and math skills were prior to her entrance into public school.

        Petitioners challenge the hearing officer’s decision on a number of grounds. They assert that the hearing officer deprived them of the right to call witnesses. I must note that they do not identify any specific witness whom they wished to have testify. Upon review of the transcript, I note that on the first day of the hearing, petitioners sought to have their child’s case worker and her foster parent present at the hearing. Both individuals did appear and did testify on the second day of the hearing. Petitioners asserted throughout the hearing and again in this appeal that the child custody actions of the Erie County Department of Social Services and the Erie County Family Court were illegal. However, I must agree with the hearing officer that this proceeding under the Individuals with Disabilities Education Act and Article 89 of the New York State Education Law cannot be used to collaterally attack the results of the child neglect proceeding in that Court. Therefore, I find that there is no merit to petitioners’ claim that they were not allowed to present witnesses at the hearing.

        Petitioners challenge the hearing officer’s finding that their child’s caseworker was an appropriate person to refer the child to the CSE. The Regulations of the Commissioner of Education provide that a child suspected of having a disability may be referred to the CSE by the child’s parent or person in parental relationship, a professional staff member of the school which the child attends, a licensed physician, a judicial officer, the commissioner or designee of a public agency with responsibility for welfare, health or education of children, or in certain instances, the child. In this instance the referral was made by the child’s case worker for the Erie County Department of Social Services, who would appear to be the designee of the public agency with responsibility for the welfare, health, and education of children. While petitioners contest the standing of the Erie County Department of Social Services to refer their child, they do so on the grounds that the agency never properly acquired custody of their child. As I indicated above, that issue is beyond the scope of this proceeding. For the purposes of this proceeding , I must find that the Erie County Department of Social Services had custody of the child. Although a county social services department cannot be deemed to be the child’s parent for the purpose of granting or withholding consent (see 8 NYCRR 200.1[cc]),it may refer a child to the CSE for an evaluation pursuant to 8 NYCRR 200.4 (a)(1)(v). I concur with the hearing officer’s determination that the child was properly referred to the CSE by her case worker.

        Although petitioners have not raised the issue of the appointment of a surrogate parent for their child, I am nevertheless compelled to address that issue because it is my responsibility to ensure that the procedural requirements of the IDEA have been satisfied. Federal and State regulations require that a school district appoint a surrogate parent for a child who is a "ward of the State" in connection with due process proceedings like this one ( 34 CFR 300.515 [b]; 8 NYCRR 200.5 [e] [2]). I find that the order of the Erie County Family Court placing petitioners’ child in the custody of the Commissioner of the Erie County Department of Social Services for a twelve-month period commencing on or about November 30, 1998 made this child a ward of the State for purposes of the Federal and State regulations. There is nothing in the record which indicates that respondent appointed a surrogate parent. Although petitioners participated in the hearing, I must nevertheless conclude that the child should have been represented by a surrogate parent at the hearing. I am compelled to annul the hearing officer’s decision, and to require respondent to hold another hearing, after it has appointed a surrogate parent for the child.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.