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KING v. PINE PLAINS CENT. SCH. DIST.

April 24, 1996

JAMES and BARBARA KING, Parents of ROBERT K., A Disabled Student, Plaintiffs, against PINE PLAINS CENTRAL SCHOOL DISTRICT, DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES and THE STATE EDUCATION DEPARTMENT, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 Plaintiffs James and Barbara King, the parents of a disabled child, filed this action on December 8, 1995, against defendants Dutchess County Department of Social Services ("DSS") and the New York State Education Department ("SED"). Plaintiffs assert claims under various provisions of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983. Plaintiffs have made a motion seeking a preliminary injunction. In an opinion and order, dated March 6, 1996, we denied plaintiffs' motion with respect to SED because the relief that plaintiffs seek is available from DSS alone. *fn1" On April 3, 1996, we held a hearing on plaintiffs' motion. Plaintiffs and DSS submitted post-hearing memoranda shortly thereafter. For the reasons stated hereinafter, the motion is denied.

 BACKGROUND

 The basic framework of the IDEA and the factual allegations set forth in plaintiffs' complaint are summarized at length in our March 6 opinion and order. We presume familiarity with that decision and describe here only the facts and circumstances pertinent to a ruling on the motion currently before us. These facts are drawn from the papers submitted by the parties and from the uncontroverted testimony of the witnesses at the preliminary injunction hearing.

 Plaintiffs are the adoptive parents of a 16-year-old child, Robert, who has been diagnosed as multiply disabled. Robert has a long history of learning disabilities and emotional and behavioral problems. He has been in special education programs throughout his school career and has been hospitalized three times for psychiatric treatment. In 1993, when Robert moved into the Pine Plains Central School District ("Pine Plains"), his parents sought to obtain a placement for him in a residential school. Pine Plains took the position that residential placement was not necessary and implemented an individualized education plan ("IEP") for the 1993-94 school year under which Robert attended special education classes at a day school in the district.

 Robert has admitted that on June 5, 1994, he set fire to a neighbor's cars and took a bottle of whiskey from the neighbor's garage. As a result of this incident, Robert was charged as a juvenile with committing conduct that would constitute several crimes. The county attorney filed a petition in Dutchess County Family Court on July 27, 1994, seeking to have Robert adjudicated a juvenile delinquent and placed in the custody of DSS. On September 27, 1994, Robert pled guilty to petit larceny. On November 1, 1994, the Family Court declared Robert a juvenile delinquent and placed him in the custody of DSS for twelve months. On November 16, 1995, the Family Court signed an order extending that period for another twelve months.

 Meanwhile, on June 9, 1994, Robert was admitted to Four Winds Psychiatric Hospital ("Four Winds") for treatment. At some point before the November 1, 1994, Family Court hearing, the assistant county attorney handling Robert's delinquency proceeding contacted Ann Woolsey, a DSS case manager, and sought her help in finding a suitable placement for Robert. Woolsey testified that usually the case manager does not seek a placement for a child until after the Family Court places the child in DSS's custody but that Robert's case was unusual. She stated that the assistant county attorney was concerned that it would be difficult to find a placement for Robert because of his psychiatric history and fire-setting problems. See Transcript of Hearing, dated Apr. 3, 1996 [hereinafter, "Tr. "], at 47-48. Woolsey testified that she sought placement at ten institutions. The only one willing to accept Robert was The Devereux School (Tr. 50), a private residential school that specializes in teaching multiply disabled children. Robert left Four Winds and entered Devereux on November 4, 1994. *fn2" He has remained there since.

 After Robert arrived at Devereux, his treatment committee began developing an IEP and treatment plan for him. On January 17, 1995, it adopted an IEP for the 1994-95 school year. On November 8, 1995, it adopted an IEP for the 1995-96 school year. Robert's mother testified that she received notice from Devereux of her rights under the IDEA with respect to the development of these IEPs. (Tr. 35) DSS did not send plaintiffs any notice of their rights under the IDEA (Tr. 35, 58), although Woolsey testified that she was in contact with Robert's parents throughout the process of finding a placement for him. (Tr. 60)

 DSS currently pays Robert's tuition and maintenance expenses at Devereux, which are between six and seven thousand dollars per month. (Tr. 51-52) Pine Plains, as Robert's school district of residence, reimburses DSS for a portion of Robert's tuition expenses pursuant to a formula established by New York state law. See Tr. 51-52; N.Y. Educ. L. § 4004(2). In August 1995, DSS sought and obtained an order from the Family Court under N.Y. Fam. Ct. Act § 415 directing plaintiffs to pay a total of about $ 1200 per month toward the cost of Robert's maintenance fees. (Tr. 36) That amount, which is divided among Robert's mother, father and stepmother, was set after a hearing before the Family Court and is garnished from their wages. (Tr. 36, 38) Plaintiffs seek a preliminary injunction barring DSS from collecting these payments while this action is pending.

 For the reasons set forth below, plaintiffs' motion is denied.

 DISCUSSION

 As we held in our March 6, 1996 decision, the "stay put" provision of the IDEA, 20 U.S.C. § 1415(e)(3), is not applicable in this case. To prevail on their motion, therefore, plaintiffs must satisfy the usual standard for granting a preliminary injunction. See Antkowiak v. Ambach, 621 F. Supp. 975, 980 (W.D.N.Y. 1985). Plaintiffs "must demonstrate both (1) irreparable harm in the absence of the requested relief, and (2) either (a) a likelihood that [they] will succeed on the merits of the action, or (b) a sufficiently serious question going to the merits combined with a ...


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