STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN YOUTH AND FAMILIES v. NEWPORT PUBLIC SCHOOL DEPARTMENT
RIDE Case No. 18-033A
INTERIM DECISION AND ORDER
Held: DCYF’s conclusion that it would not be in M. Doe’s best interest to continue attending her school of origin under ESSA was neither “clearly erroneous” nor procedurally defective, and thus the Newport Public School Department is ordered to provide M. Doe with a FAPE under the IDEA, pending a showing by the School Department that it is entitled to an additional hearing on the merits and a final order is entered.
On April 9, 2018, Petitioner, the Rhode Island Department of Children Youth and Families (“DCYF”), requested interim protective relief pursuant to RIGL § 16-39-3.2 to require that Respondent, the NEWPORT PUBLIC SCHOOL DEPARTMENT (the “NPSD”), assume responsibility for providing Student M. Doe, a fifteen-year-old child in DCYF custody, with a free, appropriate, public education (the “FAPE”) under the federal Individuals with Disabilities Education Act (the “IDEA”).
I. UNDISPUTED FACTS
The following facts were deduced from the documents and testimony entered into evidence at a hearing before the undersigned hearing officer on April 13, 2018. The witnesses included DCYF’s Educational Services Coordinator, M. Doe’s Educational Advocate and NPSD’s Director of Student Services.
1. M. Doe was place into foster care with a relative in February of 2017. Prior to that, she lived with her mother in Westerly, Rhode Island, and attended public schools in the Westerly School District. See DCYF Ex. 1 at pp. 1 and 5.[1]
2. It appears that the relative with whom M. Doe was placed resided within the Exeter-West Greenwich Regional School District, and thus on February 10, 2017, M. Doe – who is a child with a disability with an individualized education program (an “IEP”) – was transferred out of Westerly High School and enrolled at the Exeter-West Greenwich Regional High School (the “EWGRHS”). See id.
3. On July 14, 2017 – as a result of disruptions at her foster home, some of which evidently were attributable to her inability to get along with her younger sister – M. Doe was referred to a program in Providence, Rhode Island operated by the Key Program, Inc. for assessment and stabilization. See id. at p. 1.
4. On August 30, 2017, she was then placed by DCYF with a private foster care agency in Cranston, Rhode Island, and was transferred out of EWGRH and enrolled in the tenth grade at Cranston West High School (“Cranston West”) in the CSD. See id. at pp. 1 and 5.[2]
5. M. Doe’s IEP was last updated by the CSD on December 12, 2017.
6. On January 24, 2018, M. Doe was temporarily placed at a unit in St. Mary’s Home for Children in North Providence, Rhode Island, for an emergency assessment and stabilization. See id. at 1.
7. On February 12, 2018, she was then placed in a group home located in Newport, Rhode Island, and continues to reside there as part of a semi-independent living program. See id. Employees of the group home are transporting her to Cranston West.
8. On March 7, 2018, DCYF performed a BID by telephone conference call and concluded that although M. Doe’s “school of origin” under ESSA was Cranston West, it would not be in her best interest to continue attending that school. See DCYF Ex. 3.
9. M. Doe’s DCYF social caseworker and her educational advocate both participated in the BID, although neither the NPSD nor the CSD participated. See id. at 3.[3]
10. The following findings were made by DCYF in the BID conducted on March 7, 2018, and/or were confirmed by the testimony offered at the April 13, 2018 hearing:
(a) M. Doe’s academics “have declined since she moved to the group home in Newport,” see id. at 2-3, and she is failing all her classes;
(b) she “is not engaged in school [at Cranston West] and has isolated herself from her peers and teachers.” See id.;
(c) she “has difficulty attending school with her sister [at Cranston West]” See id. at 2;
(d) she “does not like the commute to school [from her group home in Newport to Cranston West].” See id.
(e) she desires to attend school in Newport. See id. at 2; and
(f) her educational advocate believes it is in her best interest to attend school in Newport. See id.
II. POSITIONS OF THE PARTIES
1. DCYF
DCYF argued that there was ample evidence to support the rebuttal of ESSA’s school of origin presumption – i.e., that is in the best interest of a child to remain in his or her “school of origin” – and the conclusion it reached in the March 7, 2018 BID that it was in M. Doe’s best interest to be transferred from Cranston West and enrolled in a school in the NPSD.
In addition, DCYF argued that the NPSD failed to provide any evidence that the BID’s conclusion was “clearly erroneous” or procedurally defective, and noted that the NPSD could have participated in the BID – either by appointing someone whose schedule did not conflict or by providing comments by e-mail – but voluntarily elected not to do so.
2. The NPSD
The NPSD argued that there was insufficient evidence in the record to support the conclusion reached in DCYF’s BID that it was not in M. Doe’s interest to remain in her school of origin, and thus DCYF’s conclusion was “clearly erroneous”. In addition, it argued that by failing to give effect to ESSA’s school of origin presumption and requiring that M. Doe change schools, DCYF defeated ESSA’s whole purpose, which is to increase educational stability.
3. The CSD
The CSD adopted the arguments made by DCYF.
III. INTERIM DECISION[4]
As was noted in the Commissioner’s Consolidated ESSA Decision, note 1, supra, the scope of the Commissioner’s review of challenges to DCYF’s BIDs “should, in the usual case, be confined to a review of whether DCYF’s determination was clearly erroneous and/or whether DCYF failed to comply with applicable procedure.” Id. at 13.
Here, there was ample evidence supporting DCYF’s rebuttal of ESSA’s school of origin presumption and its conclusion that it would not be in M. Doe’s best interest to remain at Cranston West. See§ I, ¶ 10, supra, at 4. In addition, there was no evidence that DCYF failed to comply with applicable procedure. Indeed, the NPSD presented no evidence suggesting that the result would had been any different had they participated in the telephone conference call during which the BID was conducted.[5]
IV. INTERIM ORDER
For all the above reasons, it is hereby ORDERED:
1. NPSD shall be financially and otherwise responsible for providing M. Doe with a FAPE, forthwith; provided, however, that
2. The above shall be without prejudice to the NPSD’s right to argue that it is entitled to an evidentiary hearing based upon factual or other arguments it was unable to make at the evidentiary hearing that was held on April 13, 2018.
Footnotes
[1] No evidence was introduced concerning whether DYCF performed the “best interest determination” (the “BID”) mandated by the educational stability provisions of the federal Every Student Succeeds Act (“ESSA”) at the time of M. Doe’s initial placement into foster care, and the issue was not raised at the hearing on April 13. Nor does it appear that DCYF ever created an educational stability plan as “a written part of the child’s case record,” as required under ESSA. See the Commissioner’s consolidated decision in DCYF v. North Smithfield School Department, RIDE No. 17-21 and DCYF v. Pawtucket School Department, RIDE No. 17-22 (November 21, 2017) (the “Consolidated ESSA Decision”), at 8-9, citing the Federal Guidance to ESSA at 8, Answers to Questions 5 and 8.
[2] Again, it does not appear that DCYF completed a BID in connection with the placement, and again, no party raised the issue at the hearing.
[3] The CSD did not explain their non-participation, but NPSD’s Director of Student Services testified that although she makes every effort to attend such BIDs and has done so in seventeen prior cases, an unavoidable scheduling conflict made it impossible for her to attend the conference call on March 7. She made no attempt to have the conference call continued since she did not believe that was a possibility.
[4] The Commissioner has jurisdiction under RIGL §§ 16-39-3.2 and/or 16-39-1, and the applicable standard of review is de novo. See Alba v. Cranston School Committee, 90 A.3d 174, 184-85 (R.I. 2014), citing Slattery v. School Committee of Cranston, 116 R.I. 252, 262, 354 A.2d 741, 746 (1976).
[5] Moreover, even though, as noted, it at least appears that DCYF never created the educational stability plan mandated by ESSA, see note 1, supra, and no BID was performed by DCYF either when M. Doe: (a) was initially placed into foster care in February of 2017 and transferred from Westerly High School to the EWGRHS, see§ I, ¶¶ 1-2 supra, at 2; or (2) was placed with a foster care agency in Cranston in August of 2017 and transferred from EWGRHS to Cranston West, see id., ¶ 4 at 3 and note 2, supra, and no party argued, nor does the evidence suggest, that it would be in M. Doe’s best interest for her to be transferred back to EWGRHS, where she was enrolled for four (4) months in 2017. See DCYF Ex. 1 at 5.
ANTHONY F. COTTONE, ESQ.,
as Hearing Officer for the Commissioner
KEN WAGNER, Ph.D.,
Commissioner
Date: May 10, 2018