     06-4715-pr
     Fuentes v. Board of Education of the City of New York

1                                       UNITED STATES COURT OF APPEALS

2                                            FOR THE SECOND CIRCUIT

3                                                  August Term 2008

4    (Argued: January 29, 2008                                        Decided: June 15, 2009)

5                                             Docket No. 06-4715-pr

6    -----------------------------------------------------x

7    JESUS FUENTES, as a Parent of a Disabled Child,

8                       Plaintiff-Appellant,

9                                          -- v. --

10   BOARD OF EDUCATION OF THE CITY OF NEW YORK, BARRY

11   MASTELLONE, Administrator of the HHVI of the Board of

12   Education of the City of New York, and DENISE

13   WASHINGTON, Chief Administrator of Impartial Hearing

14   Office of the Board of Education of the City of New

15   York,

16                      Defendants-Appellees.
17   -----------------------------------------------------x

18   B e f o r e :               WALKER, CALABRESI, and RAGGI, Circuit Judges.


19            Plaintiff-Appellant Jesus Fuentes appealed from an order of

20   the United States District Court for the Eastern District of New

21   York (Frederic Block, Judge) dismissing his complaint on behalf

22   of himself and his disabled son, pursuant to the Individuals with

23   Disabilities Education Act, that challenged the adequacy of

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1    special education services in his son’s public school.    The

2    district court dismissed Plaintiff’s complaint on the basis that

3    Plaintiff, as the non-custodial parent of the child, lacked

4    standing to bring such an action.     We certified a question to the

5    New York Court of Appeals.   Having received an answer from that

6    court, we now AFFIRM the judgment of the district court.

 7                                   LAWRENCE W. POLLACK, Dewey &
 8                                   LeBoeuf LLP (Lisa A. Keenan, Dewey
 9                                   & LeBoeuf LLP, Rebecca C. Shore and
10                                   Miranda B. Johnson, Advocates for
11                                   Children of New York, Inc., and
12                                   David J. Lansner, Lansner
13                                   Kubitschek Schaffer & Zuccardy, on
14                                   the brief)   New York, NY, for
15                                   Petitioner-Appellant.
16
17                                   SCOTT SHORR, Senior Counsel, for
18                                   Michael A. Cardozo, Corporation
19                                   Counsel, City of New York Law
20                                   Department, New York, NY, for
21                                   Respondents-Appellees.
22
23   PER CURIAM:

24        The facts of this case are set forth in detail in our

25   earlier opinion in this case.   See Fuentes v. Bd. of Educ. of

26   City of N.Y.,540 F.3d 145, 146-48 (2d Cir. 2008).    In relevant

27   part, Jesus Fuentes (“Fuentes”), the biological and non-custodial

28   parent of Mathew Fuentes (“Mathew”), a disabled child, challenged

29   the special education services Mathew received from the New York

30   public schools as inadequate.   Id. at 147.   After the Committee

31   on Special Education for the Hearing, Handicapped, and Visually

32   Impaired determined that Fuentes, as Mathew’s non-custodial


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1    parent, did not have the right to participate in educational

2    decisions affecting Mathew, Fuentes filed a pro se complaint in

3    the United States District Court for the Eastern District of New

4    York against the New York City Board of Education under 42 U.S.C.

5    § 1983 and Section 1415(f)(1) of the Individuals with

6    Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(1)

7    seeking, inter alia, to vindicate rights granted by the IDEA.

8          The district court twice dismissed Fuentes’s case for lack

9    of standing on the basis that under New York law, a non-custodial

10   parent has no right to make special education decisions for the

11   child.   Fuentes, 540 F.3d at 147-48.   On appeal of the second

12   dismissal, although “lower court authority strongly indicates

13   that under New York law a non-custodial parent does not retain

14   the right to participate in educational decisions for the child,”

15   we could find “no controlling New York Court of Appeals authority

16   on point.”   Id. at 153.   In light of the “paramount state

17   concern” posed by custodial arrangements, we certified the

18   following question to the New York Court of Appeals:

19         Whether, under New York law, the biological and
20         non-custodial parent of a child retains the right to
21         participate in decisions pertaining to the education of
22         the child where (1) the custodial parent is granted
23         exclusive custody of the child and (2) the divorce decree
24         and custody order are silent as to the right to control
25         such decisions.
26
27   Id.

28         The New York Court of Appeals accepted this case on


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1    certification and modified the question as follows:

2          Whether, under New York Law, the non-custodial parent of
3          a child retains decision-making authority pertaining to
4          the education of the child where (1) the custodial parent
5          is granted exclusive custody of the child and (2) the
6          divorce decree and custody order are silent as to the
7          right to control such decisions.
8
9    Fuentes v. Bd. of Educ. of City of N.Y., 12 N.Y.3d 309, 314

10   (2009) (emphasis added).

11         On April 30, 2009, it issued its decision answering the

12   question in the negative.    See id.    The Court of Appeals

13   explained that “unless the custody order expressly permits

14   joint decision-making authority or designates particular

15   authority with respect to the child’s education, a non-

16   custodial parent has no right to ‘control’ such decisions.

17   This authority properly belongs to the custodial parent.”

18   Id.

19         As we have explained, where a plaintiff “does not have

20   the authority to make educational decisions on behalf of [a

21   child],” the parent “lacks standing to demand a hearing

22   under the IDEA on the appropriateness of defendants’ IEP

23   evaluation.”   Taylor v. Vermont Dep’t of Educ., 313 F.3d

24   768, 782 (2d Cir. 2002).    Consequently, the appropriate

25   question, for standing purposes, is not whether the non-

26   custodial parent may “‘participate’ in a child’s education,”

27   but rather, whether such a parent has “the right to

28   ‘control’ educational decisions.”      Fuentes, 12 N.Y.3d at

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1    314.    The New York Court of Appeals concluded that, under

2    New York law, a non-custodial parent lacks the decision-

3    making authority to “control” a child’s education when

4    neither the custody order nor the divorce decree explicitly

5    provides Fuentes, the non-custodial parent, any authority

6    respecting Mathew’s education.     Id.   The holding of the New

7    York Court of Appeals therefore resolves the present suit,

8    and we conclude that Fuentes lacks standing to sue as a

9    “parent” under the IDEA.

10          For the foregoing reasons, the judgment of the district

11   court is AFFIRMED.




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