STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
DCYF, Petitioner v. North Smithfield School Department
RIDE Case No. 18-049K
DECISION
Held: DCYF’s request for issuance of an Interim Order is granted and North Smithfield is designated as having educational responsibility for E. Doe during the period of time that she resides at Sakonnet House, which is a stabilization and assessment center in North Smithfield, Rhode Island.
Although the April 30, 2018 “Education Stability and Best Interest Determination” form completed by DCYF had a check next to the box indicating Doe “shall remain in her school of origin,” DCYF’s actual determination was that Doe should not attend school but should continue to complete assignments at the group home in North Smithfield. The presumption that remaining in her school of origin is in her best interest has been rebutted and Doe is a school resident of North Smithfield.
If DCYF disagrees with that part of the judge’s Order that Doe “needs to be in school” and takes the position that Doe cannot safely attend school in North Smithfield because of concerns that she will flee from school, it should seek reconsideration/review of the April 25, 2018 court order requiring Doe’s attendance in school.
Date: May 30, 2018
Travel of the Case
On May 8, 2018 counsel for the Department of Children, Youth and Families (“DCYF”) filed a request that the Commissioner enter an interim order to designate North Smithfield as the city or town responsible for the education of Student E. Doe. Joint Ex. A. DCYF’s petition indicated that after following the protocol in place for ensuring the educational stability of children in foster care, it made a determination on April 30, 2018 that it is in Doe’s best interest to remain in her school of origin, the Gilbert Stuart Middle School in Providence, Rhode Island. Just prior to DCYF’s best interest determination, a judge of the Rhode Island Family Court entered an Order dated April 25, 2018. The Order indicated, in relevant part, that Doe:
needs to be in school… No Gilbert Stuart due to AWOL’s etc. need out of state referrals ASAP (DCYF Ex. 3)
Upon becoming aware of the Court’s April 25, 2018 Order, DCYF’s educational coordinator immediately issued an Amended Education Stability and Best Interest Determination for Student Doe on May 1, 2018 indicating that it was in Doe’s best interest to:
… be enrolled immediately into the most appropriate school of the LEA for the city/town in which the child’s foster care placement is located and the child’s school of origin and the new school shall ensure that all academic and other records for the child are transferred to the new school. (DCYF Ex. 6)
However, DCYF states in its petition to Commissioner Wagner that:
But for the Rhode Island Family Court Order, DCYF would have determined that (Doe) should remain in her school of origin. (Joint Ex.A)
DCYF did not appeal the Court’s April 25, 2018 Order, and immediately sought to enroll Doe in the North Smithfield school system. When school officials there refused to enroll her, DCYF filed this Petition with Commissioner Ken Wagner. The matter was heard by the undersigned on May 16, 2018.[1] Evidence was taken at that time and legal arguments were presented. Based on the status of this case as a request for issuance of an interim protective order under R.I.G.L. 16-39-3.2, decision in this matter has been expedited. The record consists of the exhibits and the hearing officer’s notes, pending receipt of the transcript.
Factual Background:
The facts of this case are not in dispute. Student Doe is a fourteen (14) year old regular education student who has been enrolled in the Providence school system since kindergarten. During the 2017-2018 school year, she was enrolled in Gilbert Stuart Middle School (“Gilbert Stuart”) in Providence, Rhode Island where she was repeating seventh grade. She is failing all of her classes this year because of attendance issues. She exhibits a pattern of not attending classes, even when attending school, and leaves the school building to go “AWOL”.[2] Doe has been AWOL three times during the current school year. Doe is currently in the care and custody of DCYF and was placed by DCYF at Sakonnet House, an assessment and stabilization center in North Smithfield, Rhode Island on April 4, 2018 and continues to reside there. DCYF is court-ordered to locate an out of state group home with an on-site educational component for Doe as soon as possible. (DCYF Ex. 3, 5 and 6). Pending her placement at such a facility, Doe has not been attending school but receives “home assignments” to complete at the group home. DCYF Ex. 5 and 6.
On April 25, 2018 when her case[3] came before a judge of the Family Court, the judge addressed Doe’s educational status and ordered that she be “in school” but not attend Gilbert Stuart. The Order notes Doe’s pattern of going “AWOL” from Gilbert Stuart as one of the reasons for prohibiting her return there. DCYF Ex. 3. Two inferences may be drawn from the Court’s Order. First is that the judge was aware, as the record in the case before the Commissioner indicates (DCYF Ex. 5 and 6), that Doe has not been attending school but rather has been receiving home assignments to complete at the group home. Second is the fact that while at Gilbert Stuart, Doe would leave the school building and run away from home and/or the group home where she was living at the time. Despite the risk of flight associated with Doe attending school, the judge nonetheless was not in agreement with Doe simply continuing to complete assignments at the group home.[4]
At approximately the same time, DCYF was acting to fulfill requirements under the school stability provisions of ESSA.[5] On April 30, 2018, DCYF conducted a best interest determination and concluded that Doe should “remain in (her) school of origin”. The documentation accompanying this determination indicated that Doe is “due to be transferred to an out of state group home with an on-site educational component within a week or two” and that she has “not been attending school and she has been receiving home assignments to complete at the group home”. It was also noted that a change in school for such a short duration “would be of no benefit to her” “considering her pattern of non-attendance and going AWOL from school”. DCYF Ex. 5. Upon learning of the Court order, however, the DCYF education coordinator immediately prepared an amended form on May 1, 2018 and disseminated it to the appropriate parties. The amended form notes that the Court ordered that Doe “may not return to school at Gilbert Stuart Middle School” and that “(t)herefore,” Doe may not remain in her school of origin. The amended form indicates that Doe is to be “enrolled immediately into the most appropriate school in the LEA for the city/town in which the child’s foster care placement is located….” DCYF Ex. 6.[6] DCYF’s efforts to enroll Doe in the North Smithfield school system were not successful.
Positions of the Parties:
DCYF:
Counsel for DCYF stated his client’s position that all children need to be in school and that DCYF must ensure that children in foster care do not experience gaps in their education when their residential placements change. DCYF has consistently invoked the Commissioner’s authority to make school residency determinations under R.I.G.L. 16-64-6 and to enter such orders as may be necessary for implementation of DCYF’s “best interest determinations” for such children. In this case, DCYF’s determination of Doe’s best interest was affected by the Family Court Order of April 25, 2018. DCYF’s determination has been amended to conform to the terms of the Order. Since the Order prohibits Doe from remaining in her school of origin, Gilbert Stuart, the amended best interest determination is that: “she shall be enrolled immediately into the most appropriate school in the LEA for the city/town in which (her) foster care placement is located”. The relief requested by DCYF is for the Commissioner to effectuate the designation of North Smithfield as the LEA responsible for Doe’s education and have her enrolled in an appropriate school there.
Although DCYF disagrees with the Court’s Order, and stands behind its original determination of Doe’s best interest, an appeal of the Court Order of April 25, 2018 would likely place DCYF in an awkward position. Although the protocol in place for ESSA “best interest determinations” makes such decisions the prerogative of DCYF,[7] there have been occasions on which judges of the Family Court have pre-empted DCYF’s decisions.[8] Such is the case here. Should the Commissioner rule that the Family Court’s decision as to Doe’s best interest must be given deference over that of DCYF (as was the ruling in Case #18-040K), then North Smithfield should be designated as Doe’s responsible LEA and this district must be ordered to enroll her immediately.
Providence School Department:
Doe has been enrolled in the Providence school district since entering kindergarten. The district declined to take a position at the hearing on the merits of DCYF’s petition and instead deferred to the Commissioner’s ruling in this matter. Providence will abide by whatever ruling the Commissioner issues.
North Smithfield School Department:
Counsel for the School Department urges the Commissioner to reconsider the ruling made in DCYF v. Woonsocket School Department/North Smithfield School Department, April 17, 2018, Case #:18-040K. North Smithfield incorporates the arguments made in the previous case. The district warns that if the Commissioner continues to defer to family court “best interest determinations” for children in foster care and does not uphold the process and determinations made by DCYF, he is permitting the entire ESSA process to be undermined. Such intrusions on properly-made best interest decisions cannot be permitted. RIDE and the Commissioner are bound by federal law and ESSA deprives judges of the authority to make these decisions. The Commissioner should not implement an invalid decision, especially when implementation will nullify DCYF’s determination of a foster child’s best interest. Such is the case here in which DCYF determined Doe’s best interest was to remain in her school of origin while the judge determined otherwise.
Although North Smithfield acknowledges the difficult rulings that judges of the Family Court must make, school stability decisions are no longer one of them. Federal law (ESSA) has restricted the authority of the Family Court to make education stability “best interest determinations” when the placement of a foster child changes. Under federal law, a process of collaboration and coordination at the state and local level has replaced the insular decision-making process of a single judge. In determining Doe’s best interest, DCYF properly coordinated an ESSA conference at which those involved in her education were invited to participate. DCYF received input from the appropriate parties, considered all of the factors required under the established protocol, and determined that it was in Doe’s best interest to remain in her school of origin. The judge who determined otherwise just five days previously did not have the benefit of all of the information DCYF compiled when it made its determination. Counsel submits that the Commissioner should uphold DCYF’s determination and act to protect Doe’s best interest by denying the requested interim order.
North Smithfield also suggests that the Commissioner should intervene to challenge the Family Court’s invalid exercise of jurisdiction in these matters, pursuing appeals whenever necessary. The district argues that it is not practical to place the burden of challenging the validity of a Family Court decision with respect to school stability upon Rhode Island school districts. Districts typically have no advance notice of these types of court proceedings. After the fact, when the Court has already proceeded to usurp or displace a DCYF best interest decision, it would be difficult for a school district to establish legal standing to challenge the court order. It is inequitable to require local education agencies to expend resources attempting to do so, when the obligation to ensure a child’s school stability under ESSA belongs to the child welfare agency (DCYF) and the state education agency (RIDE). Thus, the suggestion[9] that an invalid court order may be challenged through an appeal by an affected district should be reconsidered since it leaves districts, and more importantly, foster children, with no adequate remedy. While the Commissioner may not have the authority to “review” a decision of the Family Court, North Smithfield takes the position that he does have the authority to refuse to implement it- and it is requested that he do so in this case.
DECISION
The North Smithfield School Department requests that the Commissioner reconsider his recent decision in DCYF v. Woonsocket School Department/North Smithfield School Department, #:18-040K. The Commissioner ruled there that a family court decision prohibiting a foster child from remaining in her school of origin was binding, absent a reconsideration of this ruling or a successful appeal. The judge’s decision was contrary to DCYF’s determination that the child’s best interest was to remain in her school of origin in Woonsocket. Faced with this fact pattern, the Commissioner acknowledged his lack of authority to review decisions of the Family Court. However, with specific directives to the parties, he attempted to ensure that the Court would benefit from the information generated pursuant to the ESSA protocol. Although Rhode Island’s ESSA’s protocol was not determinative of Doe’s school placement, in this instance, the Court’s determination of her overall best interest was given deference.
North Smithfield’s well-articulated legal and public policy arguments apply to the situation in which the Family Court and DCYF draw different conclusions with respect to a foster child remaining in his or her “school of origin”. Such were the facts in the prior case, but they are not the facts of this case and so these arguments are not applicable here. In the case now before the Commissioner, the Family Court determined on April 25, 2018 that Doe would not attend Gilbert Stuart Middle School.[10] Our understanding of DCYF’s determination just five (5) days later was that it agreed that Doe should not attend Gilbert Stuart. In fact, based on all of the factors and comments on the Best Interest Determination form (DCYF Ex. 5), DCYF’s conclusion at that time was that she should not, for safety reasons, leave Sakonnet House to attend school at all.[11]
Despite characterizing its April 30, 2018 best interest determination to be one that Doe was to remain in her “school of origin” i.e. Gilbert Stuart, a close reading of the documentation indicates that DCYF determined at that time that Doe should continue to receive “home assignments to complete at the group home” in North Smithfield. There is no indication that Doe’s return to Gilbert Stuart was contemplated or planned for. In fact, DCYF’s April 30, 2018 form, taken as a whole, would indicate that DCYF concluded, for safety reasons, that Doe should not leave Sakonnet House to attend school because her transition to a group home that had an on-site educational program (a safe situation for her) was imminent.
The Education Stability- Best Interest Determination completed by DCYF on April 30, 2018 (DCYF Ex. 5), taken as a whole, is inconsistent with a determination that attendance at her school of origin in Providence was in her best interest. Most of the comments placed on the form actually support the opposite conclusion. Her social worker notes concerns with respect to a “pattern” of her “going AWOL” from school. The documentation describes Doe’s tendency to flee from the school building and indicates that her transition to an out of state group home with an on-site educational component is anticipated in the near future. The document identifies no academic or social benefits to her return to Gilbert Stuart. The information gathered by DCYF for the school stability decision includes the fact that Doe is repeating grade 7 at Gilbert Stuart, that she is currently failing all of her classes and not doing well socially because of poor school attendance. There is no transportation plan. The check placed in the box on the form next to “school of origin” (as being in her best interest) is a conclusion contrary to most, if not all, of the information considered pursuant to the protocol. Perhaps it was intended to convey the conclusion that Doe’s “status quo” was to be maintained until she could be placed in a safe school setting, i.e. a group home with an on-site educational component.
In substance, then, both the Family Court and DCYF are in agreement with respect to the conclusion that Doe should not attend her “school of origin” Gilbert Stuart Middle School in Providence. Findings of both entities were that remaining there is not in her best interest. The only conflict in the two decisions is on whether Doe should attend school at all pending her transition to another group home. It is clear that the presumption that it is in her best interest to remain in her “school of origin” has been rebutted under ESSA. She is thus a school resident of North Smithfield and this district is responsible for her education.
If either DCYF or North Smithfield, or both, take the position that Doe’s school attendance poses a danger to her safety, or that of others, it should seek reconsideration/review of the Court’s April 25, 2018 Order that she be “in school” as soon as possible. Without any court-imposed restrictions on her school attendance, she is to be enrolled in North Smithfield and placed in the appropriate school there as soon as possible.
Footnotes
[1] Counsel for the Providence School Department was notified of the hearing and participated on behalf of the district.
[2] “AWOL” evidently means that the child has run away from his or her home or foster home. During the past school year while in DCYF custody, Doe has been AWOL on at least three occasions. See DCYF Ex. 2.
[3] Doe is or was the subject of a wayward petition filed in the Family Court. The hearing on April 25, 2018 is described as a “drug diversion review”.
[4] The judge’s written order is emphatic on this point. DCYF Ex.3.
[5] Title I, Part A (Title I) of the Elementary and Secondary Education Act of 1965 (ESEA) as amended by the Every Student Succeeds Act (ESSA) is intended to ensure the educational stability of children in foster care. According to the Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care (June 23, 2016) the “Federal Guidance”, the policy of ensuring stability for such children requires that the child welfare agency determine, in each case, whether the presumption that it is in the foster child’s best interest to remain in their school of origin has been rebutted.
[6] In the amended document, a check mark was also placed to respond “No” to the statement “Safety considerations favor a change in educational placement”. The April 30th form had left this response blank. The text in this section remained the same, i.e. “(the social caseworker) reported that (Doe) does not attend class when she does go to school and she has eloped from the school several times and became AWOL as a result. (Doe) has been AWOL on at least three occasions this school year”. DCYF Ex. 5 and 6.
[7] See DCYF v. Woonsocket School Department and North Smithfield School Department, Case #:18-040K dated April 17, 2018 and the Commissioner’s previous “Consolidated Decisions” cited therein at page 4.
[8] As was noted in footnote 10 of decision #18-040K, cited above, the Memorandum of Agreement Implementing the School Stability Provisions of ESSA signed by RIDE’s Commissioner and DCYF’s Director on July 27, 2017 and July 31, 2017, respectively, indicate retention of the Court’s role in best interest determinations to some degree.
[9] This alternative was suggested in the previous case #:18-040K, also involving North Smithfield.
[10] Although the judge did not expressly base this Order on her determination of Doe’s best interest, we find this rationale to be implicit.
[11] When an amended Best Interest Determination was made on May 1, 2018 the comment “Safety considerations favor a change in educational placement was followed by the response of “No”. DCYF Ex. 7 The social worker’s report of Doe eloping from school was included here. The logical conclusion from this as well as other comments on the form was that the “status quo” of Doe working on home assignments completed at the group home was thought to be in her best interest, not her return to Gilbert Stuart.
For the Commissioner,
Kathleen S. Murray
Hearing Officer
Date: May 30, 2018
Kenneth Wagner, Ph.D.
Commissioner