McDonald, In re

• Decision Date: 03 January 1974
• Citation: 351 N.Y.S.2d 120,76 Misc.2d 532
• Parties: In the Matter of George McDONALD, an allegedly physically handicapped child For an Order for the Education of a Physically Handicapped Child, Pursuant to Section 232 of the Family Court Act.
• Court: New York City Court

Page 120

351 N.Y.S.2d 120

76 Misc.2d 532

In the Matter of George McDONALD, an allegedly physically handicapped child For an Order for the Education of a Physically Handicapped Child Pursuant to Section 232 of the Family Court Act.

Family Court, New York City, Bronx County.

Jan. 3, 1974.

Norman Redlich, Corp. Counsel, New York City (Franklin E. White, Sp. Asst. Corp. Counsel, New York City, and Milton Koenigsberg, of counsel), for New York City Commissioner of Social Services.

Robert D. Stone, Albany (James H. Whitney, Guilderland, of counsel), for New York State Commissioner of Ed.

DECISION

JOSEPH A. DORAN, Judge:

This is a proceeding, pursuant to section 232 of the Family Court Act, for an order in the sum of $9,160 to cover the educational needs (tuition and maintenance) of a handicapped child for the 1972--73 school year, and making 'such amount a charge upon the appropriate governmental body or bodies.'

The petitioner is the New York City Commissioner of Social Services. The child in question was born on January 9, 1961, and came into the petitioner's custody on August 25, 1961. No issue is raised as to his handicapped status or in respect to the ability of parents or other person having legal responsibility to pay for his necessary education. He is now at the Thomas E. Shannon Boys' Home in New Jersey, approved by the New Jersey Department of Institutions and Agencies to accept children for residential treatment and education. There is also no dispute as to the reasonableness of its charges.

The main thrust of this proceeding is to enable the City of New York to obtain from the State of New York ¹ one-half contribution towards the cost of special education of the child in the out-of-State school according to the allocation formula provided by statute (see Education Law, § 4403). Basically, it is a contest between two fiscal giants as to whose budget shall bear the burden of such expense. It is all taxpayers' money in any view of the matter.

The New York City Board of Education does not have 'an adequate public facility for this schizophrenic 12 year old', and further says that 'he is not eligible for funding under section 4407 of the Education Law since he is not attending a school eligible for such contracting.'

The State Education Department takes a position as follows: 'Subdivision 1 of section 4403 of the Education Law provides, in material part, that the State Education Department shall have the power and duty to provide, within the limits of the appropriations made therefor, * * * maintenance and tuition in * * * special and technical schools, for handicapped children in whole or in part from funds of the Department, when not otherwise provided by parents, guardians, local authorities or other sources, public or private. Pursuant to the provisions of subdivision 3 of section 40 of the State Finance Law, the appropriation to the Education Department for this purpose for the State fiscal year which began on April 1, 1972, ceased at the close of that fiscal year on March 31, 1973, unless a liability had been incurred prior to that date, in which case payment could be made on or before the next succeeding 15th day of September.

'In the instant matter, no encumbrance of funds was made prior to March 31, 1973. Therefore, the Commissioner of Education could not issue an HC--5 (certificate of approval for State aid) should the Court grant relief sought in the petition with regard to the attendance of the above named child at the Thomas E. Shannon Boys Home for the 1972--73 school year. * * *

'In addition, the Education Department is unable to make a proper evaluation of this petition for tuition and maintenance since it has no information or knowledge regarding the facilities and programs available at the Thomas E. Shannon Boys Home, Burlington, New Jersey. It is respectfully submitted that the Court consider the question of whether there is an adequate facility available to meet the educational needs of this child within the State of New York (Matter of Leitner, 38 A.D.2d 554, 328 N.Y.S.2d 237).'

In the Leitner case thus cited, the needs of the child were being supplied by a special school in Rhode Island at a cost of approximately $12,500 a year. The Appellate Division reversed a Family Court order assessing the total cost against the local governmental body, and remanded the proceeding for new hearing (on notice to specified governmental authorities) at which 'testimony should be taken with reference to the availability and expenses of suitable educational facilities within the State of New York capable of providing for the educational needs of the handicapped child in question, with attention given to section 4403 (subds. 1, 2) and section 4407 of the Education Law' (38 A.D.2d 554, 328 N.Y.S.2d 237). The implication is clear. Before New York taxpayer monies are to be sent out of State for the instructional needs of a handicapped child, it should be shown to the satisfaction of the court that the Empire State is unable to provide for him in a school that meets the standards of its own Education Department and subject to its continuing jurisdiction and supervision. Nevertheless, on a later appeal in the same case the expenses for special education of the child in the out-of-State school were approved and assessed against the local unit of government in the first instance to be reimbursed by the State of New York to the extent of one half of its payments (Matter of Leitner, 40 A.D.2d 38, 337 N.Y.S.2d 267). ²

It seems appropriate to say that the State of New York has fulfilled the mandate of its Constitution 'for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated'. (N.Y.Const., Art. XI, § 1) The New York City school system is part of it. Unfortunately, some children are not able to take advantage of the 'free common schools' because of their limitations and handicapped condition. Not all are equally educable. This is a regrettable fact of life that must be faced, but the consequence is not the fault of government on any level. The State of New York has not ignored the plight of these children or defaulted in any societal duty or obligation towards them. Their educational needs are a matter of concern and, therefore, the subject of statutory provision and regulation (see Education Law, Art. 89, § 4401 et...