STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
COMMISSIONER OF EDUCATION
DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES v. NEWPORT PUBLIC SCHOOL DEPARTMENT, In re: Student C. Doe
RIDE Case No. 18-053K
INTERIM DECISION AND ORDER
Held: DCYF’s determination that it would not be in C. Doe’s best interest to remain in her school of origin was based on its consideration of relevant factors as well as the Order of the Family Court that she is not to return to school in Woonsocket. DCYF’s determination under ESSA was neither “clearly erroneous” nor procedurally defective. Doe is to be enrolled immediately in the Newport public schools, as she resides in a group home in Newport and the presumption under ESSA that it is in her best interest to remain in her school of origin has been rebutted. Her school residency is governed by state law, R.I.G.L. 16-64-1 and 16-64-1.1 Consistent with the Rhode Island Board of Education Regulations Governing the Education of Children with Disabilities §300.301 Newport is to promptly develop an IEP that will provide this student with a free appropriate public education under the IDEA.
Travel of the Case:
On May 29, 2018 the Rhode Island Department of Children, Youth and Families (“DCYF”), requested interim protective relief pursuant to R.I.G.L. 16-39-3.2 to require that the Respondent, the Newport Public School Department (“Newport”), assume responsibility for the education of Student C. Doe, a sixteen (16) year old child in DCYF custody who was placed at a group home in Newport on May 14, 2018. DCYF had determined on May 22, 2018 that it was in Doe’s best interest to be enrolled in an appropriate school of the city in which her foster care placement is located.
This matter was heard by the undersigned on June 4, 2018. The respondents to DCYF’s petition[1] were Newport and the Woonsocket School Department (“Woonsocket”). Evidence was taken and closing arguments were presented at the time of hearing. Although a transcript of the hearing has been ordered, it has not yet been received. Thus, the record consists of the exhibits entered and the hearing officer’s notes of testimony received under oath.
Under R.I.G.L. 16-39-3.2 this decision must be issued within five (5) working days of the completion of the hearing. The urgency in designating a responsible LEA for Doe is heightened by the fact that Doe has not been in school since February 28, 2018 when she was removed from her home in Woonsocket and placed in an assessment and stabilization center in North Smithfield, Rhode Island. The family court judge hearing Doe’s case on that same date ordered that she was not to return to school in Woonsocket. (DCYF Ex. 5) DCYF requested a residency determination and designation of a responsible LEA on March 28, 2018, noting in its petition to the Commissioner that “but for” the Court’s order, Doe would remain in her school of origin, Woonsocket Middle School at Villa Nova, as determined in a March 16, 2018 ESSA best interest determination. An interim order was issued by the Commissioner on April 17, 2018.[2] The Commissioner ordered that Doe was to be immediately enrolled in North Smithfield[3], however, North Smithfield did not comply with this Interim Order and Doe remained out of school.[4] When DCYF was unsuccessful in enrolling Doe in school in Newport upon her placement at a group home there and after an ESSA best interest determination called for her enrollment in Newport, it again sought an interim order for designation of a responsible LEA. Thus, this is the second interim order requested to secure educational services for this student in foster care who has been out of school for over three (3) months. To complicate matters, just last week a special education eligibility determination was conducted (by a team in Woonsocket). Doe was determined to be a child with a disability and eligible for special education services and related services under the IDEA and state law. Under our special education regulations, §300.301, the responsible district must develop an IEP and make services available to Doe within fifteen days of this eligibility determination.
Factual Background:
- Student Doe was last enrolled in school in Woonsocket, Rhode Island and the last school she attended was Woonsocket Middle School at Villa Nova. DCYF Ex. 2
- On February 28, 2018, Doe was removed from her parent’s home in Woonsocket and placed in the custody and care of DCYF. The Court Order indicated, “the child is not to return to school in Woonsocket as it is not in the child’s best interest at this time”. DCYF Ex. 5
- Doe was placed at Sakonnet House, an Assessment and Stabilization Center in North Smithfield, Rhode Island from February 28, 2018 until May 14, 2018 at which time her placement changed to a group home operated by Child and Family Services in Newport, Rhode Island. Doe continued to reside at the group home in Newport at the time of hearing. DCYF Ex. 1
- During the period February 28, 2018 through May 14, 2018 Doe did not attend school.
- The North Smithfield School Department did not comply with the Commissioner’s Interim Order issued in Case #18-040K on April 17, 2018. Despite DCYF’s continued attempts to enroll Doe pursuant to this Interim Order, the district denied her enrollment into the school system. Testimony of DCYF’s Educational Coordinator.
- After Doe’s placement was changed from Sakonnet House in North Smithfield to a group home in Newport on May 14, 2018 DCYF conducted an ESSA best interest determination, following its protocol on “Educational Stability- Best Interest Determination”. Based on information gathered during this process,[5] as well as the Court Order prohibiting her return to Woonsocket, DCYF determined on May 22, 2018 that it would not be in Doe’s best interest to remain in her school of origin, Woonsocket Middle School at Villa Nova. It was therefore determined to be in her best interest to enroll in the most appropriate school of her new LEA, the Newport Public School Department. DCYF Ex. 4.
- Newport has denied Doe enrollment into its school system despite being informed of the DCYF May 22, 2018 determination that it is in her best interest to be enrolled in Newport. DCYF Ex. 3 and 4. Testimony of DCYF’s Educational Coordinator.
- Doe was in the process of being evaluated by the Woonsocket School Department to determine her eligibility for special education at the time she was removed from her parent’s home in February of 2018. The February 28, 2018 Court Order was modified on May 2, 2018 to permit Woonsocket to complete the evaluation process. DCYF Ex. 4 and 8. Last week Doe was determined by the team to be a child with a disability and eligible for special education and related services. Testimony of Special Education Director of the Woonsocket School Department.
- The Woonsocket School Department has not proceeded to develop an IEP for Doe because, if Newport is determined to be responsible for her education, it would make more sense for Newport to develop the IEP. Testimony of Special Education Director of the Woonsocket School Department.
Positions of the Parties:
DCYF:
DCYF submits that it has followed guidance on implementation of ESSA’s Educational Stability Provisions provided in the Commissioner’s “Consolidated Decision,” so called[6] and properly determined both Doe’s “school of origin” and her “best interest”. DCYF’s conclusions were based on the following definition of “school of origin”:
the school in which the child is enrolled at the time of placement in foster care…
or alternatively, if a child’s foster care placement changes…the school in which the child is enrolled at the time of the placement change.
See the Consolidated Decision at page 6, citing Federal Guidance at 11, Answer to Question 10, citing ESEA sections 1111(g)(1)(E)(i)
Since Doe was last enrolled in Woonsocket Middle School at Villa Nova, this is her school of origin. The fact that Doe would have been enrolled in school in North Smithfield, but for the district’s noncompliance with the Commissioner’s Interim Order, and that this foster child would then have had a different school of origin at the time of her most recent placement change to Newport has not affected DCYF’s determination of her school of origin.[7] The middle school in Woonsocket she last attended remained her school of origin. Per the Family Court Order dated March 27, 2018[8] she cannot return to school in Woonsocket, and so remaining in her school of origin is not possible at this time. The presumption that it is in Doe’s best interest to continue attending her school of origin has been rebutted due to the impossibility of her continued attendance in Woonsocket. The judge’s Order in her case makes any school in Woonsocket unavailable to her.
Newport’s assertion that Woonsocket nonetheless remains responsible for Doe’s education at an alternative site or school, either within or outside Woonsocket, is not supported by the analysis provided in the Consolidated Decision. The precedent established in the Consolidated Decision is consistent with federal guidance- that is, once the school of origin’s best interest presumption has been rebutted, state law on school residency controls. In Rhode Island, the district in which the foster child’s group home is located becomes the responsible LEA. Thus, the only choices explored by DCYF when it made its May 22, 2018 best interest determination involved Woonsocket Middle School at Villa Nova (the “school of origin”) and an “appropriate school” in the student’s new LEA- Newport. The choice was “a binary one” and was not expanded to consider other schools in Woonsocket or out of district schools utilized by Woonsocket to meet the needs of its special education students. DCYF had no choice in this situation but to make Newport the school district in which the child should enroll and attend school.
DCYF’s counsel questions the authority for the proposition- advanced by Newport in this case- that a district in which a foster child is placed and which is under a Commissioner’s Order to enroll the child but refuses to do so (North Smithfield in this case), should be designated financially responsible for that child’s education going forward. DCYF argues that there is nothing in the statutory language of ESSA or in the Federal Guidance to suggest that a district becomes responsible for a child’s education when it avoids placing a foster child in school so as not to create a new “school of origin” within its borders- or in an out of district school under an IEP it develops. Newport’s theory -that North Smithfield has “unclean hands” because of its attempt to avoid responsibility for Doe’s education and therefore should be required to pay for Doe’s education even though she now lives in Newport- is simply incorrect. If RIDE is receptive to this theory and districts with “unclean hands” are to be identified in the process of determining which districts are responsible for the education of foster care children, RIDE should notify DCYF and districts so that the process of determining responsibility for a foster child’s education can be adjusted accordingly.
Newport Public School Department:
At the outset, counsel for Newport acknowledged the evidentiary burden that must be met by a Rhode Island school district seeking to challenge a best interest determination made by DCYF. As set forth in the Consolidated Decision:
…the scope of the Commissioner’s review of challenges to such determinations 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. (Consolidated Decision at 13)
The district submits that there is some evidence that DCYF’s determination of Doe’s best interest was clearly erroneous. The argument is advanced that in light of the judge’s prohibition on her return to school in Woonsocket, DCYF could have explored having Doe educated at a facility serving Woonsocket children, but not physically located in Woonsocket. In this way, there would have been compliance with the Court’s Order, but yet this child would have more educational stability than she will have if she is now enrolled in a school at the other end of the state. Counsel called Newport’s Director of Special Education to testify on her experience with the district’s ESSA school stability program and her oversight of foster children placed in Newport homes. She confirmed that many of these children have been maintained in their schools of origin. She testified that a number of students living in foster care in Newport are transported all over the state, sometimes with long commutes, based on “what school makes sense for them”. In this way, school stability, one of the primary goals of ESSA, is maintained. The Special Education Director also testified that in this case, the presumption that it is in Doe’s best interest to remain enrolled in Woonsocket has not, in her opinion, been rebutted. She cited Doe’s own recently-expressed preference that she return to school in Woonsocket, the absence of any involvement with gang activity or major drug activity in Woonsocket and potential reunification with her mother, a Woonsocket resident. In addition, Woonsocket has just determined that Doe is eligible for special education services and if Doe is now enrolled in Newport, there could be a delay in developing an IEP for her, as all of the data and evaluation results on file in the Woonsocket School Department would have to be reviewed by Newport’s team. The judge’s opinion aside, Doe’s best interest are in remaining in school in Woonsocket.
The focus of Newport’s argument is that DCYF’s entire process in making a best interest determination for Doe has been procedurally defective. Although counsel for Newport acknowledges the burden of managing so many cases involving children in foster care, the child welfare agency should still be compelled to convene all appropriate parties when conducting a best interest determination under ESSA. However, when DCYF conducted a best interest determination for Doe on May 22, 2018, when her placement changed from North Smithfield to Newport, a representative from North Smithfield was conspicuously absent. DCYF had not even invited a representative from North Smithfield to participate, even though the student had resided in that town for over two and one-half months and had been determined by the Commissioner to be the LEA responsible for her education on April 17, 2018. There was no consideration given by DCYF to North Smithfield’s potential role in retaining responsibility for Doe’s education. This resulted in error on the part of DCYF in determining Doe’s best interest on May 22, 2018. Her “school of origin” was no longer Woonsocket Middle School at Villa Nova but rather had become an appropriate school in North Smithfield. If North Smithfield had been involved in the May 22, 2018 determination of Doe’s best interest, Newport believes that the conclusion would have been that North Smithfield would continue to be the community responsible for Doe’s education.
Newport submits that North Smithfield did not appear at the June 4, 2018 hearing, although invited to do so,[9] to avoid having to explain its failure to provide Doe with the education she was entitled to as a foster child placed there by DCYF. North Smithfield should not be rewarded for ignoring the Commissioner’s ruling and declining to participate in the hearing at which DCYF’s current designation of a responsible LEA is under review. Instead, the Commissioner should rule that even if Student Doe is to be enrolled in Newport, rather than remain in her school of origin, North Smithfield should assume financial responsibility for her education.
Woonsocket School Department:
Counsel for Woonsocket notes that DCYF is attempting to follow the law in all of its best interest determinations- whether it be when a student is moved to an assessment center in North Smithfield or a more “permanent” foster care placement in Newport. Unfortunately, community after community is attempting to avoid responsibility to enroll this student, and the net result is that she has not been in school for months on end. Woonsocket takes the position that in this case there has been a best interest determination that Newport is the community that should be responsible for this student that it would be in her best interest to be enrolled there. Counsel submits that DCYF’s determination should be followed and Newport should enroll this student, just as North Smithfield should have done when a determination that this was in Doe’s best interest was made some months ago.
INTERIM DECISION
As was noted previously in this decision, the scope of the Commissioner’s review of challenges to DCYF’s best interest determinations “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.” After a review of the entire record in this case,[10] it is clear that:
- DCYF’s identification of Doe’s “school of origin” as the Woonsocket Middle School at Villa Nova was correct;
- DCYF’s consideration of the relevant factors listed on the “Educational Stability-Best Interest Determination” Protocol (DCYF Ex.4) weighed in favor of rebutting ESSA’s school of origin presumption and indicated that immediate enrollment in the most appropriate school in Newport was in her best interest;
- DCYF’s consideration of the effect of the February 28, 2018 decision of Justice Rossie L. Harris of the Rhode Island Family Court prohibiting Doe’s remaining in school in Woonsocket was correct;
As the undersigned was the same hearing officer who prepared the decision in DCYF’s prior case involving this student, referenced above, we note that the prior DCYF Request for an Interim Order (dated March 28, 2018) indicated that “but for” the judge’s decision, DCYF would find that remaining in her school of origin in Woonsocket was in her best interest.[11] In its current Request submitted to Commissioner Wagner on May 29, 2018 there is no “but for” indicating that it is only because of a court order that Doe’s best interest lies in attending school in Newport. Stated another way, there is a separate and independent conclusion on the part of DCYF, based on the relevant factors, that the ESSA best interest presumption has been rebutted. Our review of DCYF’s separate and independent conclusion indicates that several factors weighed against Doe’s remaining in her school of origin:
- reunification with her mother, with whom she has a volatile relationship “would most likely not occur soon” (her mother resides in Woonsocket).
- information that Doe had previously been doing fine academically, but had been slipping lately due to social/emotional issues; negative social influences at the school included drug activity and behavioral issues resulting in suspensions and truancy.
- the recommendation of the DCYF social worker assigned to her case was that Doe not return to Woonsocket Middle School due to the court order forbidding her to do so and to remove her from potentially harmful influences and affiliations at her school of origin.
In response to a somewhat global statement on the DCYF form: “Transferring schools will positively impact the child emotionally, social or academically” the response was “Yes”.[12] (See DCYF Ex. 4, May 22, 2018 Best Interest Determination) It is evident, then, that as Doe’s case- and Doe- evolved through the foster care system, an alignment came to exist between the position of the judge involved in her case and the determination of DCYF as to her educational best interest. As previously described in RIDE Case No. 18-040K, when presented with a difference of opinion on this point, the court ruling is binding.
We agree with Newport’s argument that North Smithfield’s failure to comply with the Commissioner’s prior Interim Order to enroll Student Doe should not be rewarded;[13] however, the fact that she was not immediately enrolled there, as was the Commissioner’s directive, does not cause us to fashion the remedy suggested by Newport- either find that North Smithfield became Doe’s de jure “school of origin” or impose ongoing financial responsibility for Doe’s education on North Smithfield at this point in time. As DCYF points out in its argument, there is no statutory language to support this and nothing in the Federal Guidance to suggest that such measures should be utilized. DCYF thus complied with applicable procedure when it left North Smithfield out of the process initiated on May 15, 2018, when an ESSA conference was scheduled and then convened on May 22, 2018. Woonsocket and Newport were the only districts implicated in a “binary” choice, as DCYF has described it.
The overriding issue presented by the facts of this case has been pointed out by counsel for the Woonsocket School Department- community after community is attempting to avoid responsibility to enroll this student, with the net result that she has been out of school for several months. This has occurred in Doe’s case as well as in other cases that have been brought to the Commissioner for resolution.[14] While there is clarity with respect to the principle that students are to be maintained in their school of origin pending a best interest determination by DCYF, a misunderstanding prevails that districts do not have to enroll students once DCYF has made a finding of their best interest if they dispute this determination.[15] This is contrary to the clear precedent established in the Consolidated Decision at pages 12-13:
[i]n the event that an LEA claims that it is not responsible for a child-whether because it disagrees with DCYF’s best interest determination or for some other reason – the LEA nonetheless must comply with DCYF’s best interest determination and enroll the child (and/or facilitate the out-of-district placement) forthwith, and only after doing so should it be able to pursue the relief to which it believes it is entitled before the Commissioner…
The above does not describe the conduct of North Smithfield (in March of 2018) or Newport (in May of 2018), since both refused to assume responsibility for Student Doe even after DCYF informed school representatives of its conclusions with respect to Doe’s best interest.[16] North Smithfield’s intransigence persisted even after receipt of the Commissioner’s April 17, 2018 decision ordering Doe’s immediate enrollment. No foster student should be out of school during any period of delay resulting from either the completion of a best interest determination or a school district’s disagreement with its conclusion. In future cases, the refusal of a school district or other local educational agency to enroll a student under such circumstances may well result in liability for fees and costs under the state’s Equal Access to Justice Act, R.I.G.L. 42-92-2 et seq., the withholding of state aid under R.I.G.L. 16-5-30, or other appropriate measures. No matter how well-founded a subsequent challenge to DCYF’s determination may be, protracted legal proceedings- before the Commissioner or elsewhere- must not delay implementation of DCYF’s determination of a foster child’s best interest under ESSA.
Based on the foregoing, Doe is determined to be a school resident of Newport and an Interim Order designating Newport as the LEA responsible for Doe’s education is hereby entered. Since Doe has just recently been determined eligible for special education and related services, Newport must comply with the timeframes applicable to the development of her IEP and provide appropriate services to her.
This Interim Order will be entered as a Final Order in this case in thirty (30) days unless any of the parties seeks additional hearing and so notifies the Commissioner’s office within thirty (30) days of the date of this decision.
Footnotes
[1] The North Smithfield School Department was provided with notice of the hearing, but declined to attend.
[2] RIDE Case # 18-040-K.
[3] This directive was to be followed absent a different decision by the judge when he reviewed Doe’s case on April 18, 2018 or a stay, modification, or setting aside of his decision as a result of any appeal by North Smithfield. Thus, an interim order “ensuring Doe’s enrollment in North Smithfield” under the conditions set forth in the decision was issued. Id at page 8.
[4] Counsel for DCYF indicated that his agency was contemplating filing a petition in Superior Court for enforcement of the Interim Order at the time that Doe was moved from North Smithfield to Newport.
[5] The ESSA document indicates that the basis for this best interest determination is the Court Order and “all testimony presented”. When questioned by the hearing officer as to what the “testimony” referred to was, DCYF’s educational coordinator testified that she was not sure why this terminology was used, but that it referred to all of the information gathered during the ESSA conference conducted on May 22, 2018.
[6] This refers to a consolidated interim decision in two cases, RIDE No. 17-21 and No. 17-22, issued on November 21, 2017. In the “Consolidated Decision”, the Commissioner sought to resolve the disputes presented and at the same time provide guidance on the implementation in Rhode Island of the Educational Stability Provisions of the ESSA, the nomenclature given to the reauthorized Elementary and Secondary Education Act of 1965. ESSA’s Educational Stability Provisions became effective in Rhode Island on December 10, 2016
[7] DCYF's position on this is sound. The analysis at page 23 of the Consolidated Decision relating to the speculation that would be involved in making “retrospective” best interest determinations would similarly apply to comparing a theoretical school of origin in North Smithfield with an appropriate school in Newport.
[8] The written order is dated March 27, 2018. The Court's preliminary order was issued at the hearing that took place on February 28, 2018, the date Doe was removed from her home and placed at Sakonnet House in North Smithfield.
[9] Newport's counsel stated that he became aware of North Smithfield's involvement in this matter only when North Smithfield was included on the notice of the June 4, 2018 hearing date and he requested an explanation from the staff assistant of RIDE's legal office. He then requested a copy of the Commissioner's April 17, 2018 decision involving this student.
[10] Including the transcript, which was received late yesterday afternoon.
[11] In fact, DCYF had prepared an Amended Best Interest Determination to change its determination only to conform to the Judge's Order. See DCYF Ex. 6 and 7.
[12] In the two prior best interest determination forms the response to this same statement had been left blank. See DCYF Ex. 6 and 7.
[13] We infer that North Smithfield had a concern that if it enrolled Doe, it would become responsible for her education over the long term. Obviously, it will more likely be the case that educational stability for a student placed temporarily at an assessment center will be maintained by keeping that child in his or her school of origin and not enrolling the child in the LEA where the assessment center is located. However, there will inevitably be cases, such as Doe's, when the school of origin has become unavailable, and the LEA where the assessment center is located must educate the child in the interim. In such situations, when the child moves to a more “permanent” foster care placement, it would be an unusual situation, such as that existing in RIDE No. 17-21, that the LEA where the assessment center is located would continue to be responsible for the child's education.
[14] We take administrative notice of the fact that many foster care children remain out of school during the pendency of disputes, even after DCYF has made a best interest determination for them.
[15] As a result, foster children such as Doe, for whom the school of origin is unavailable, remain out of school indefinitely.
[16] Unfortunately, DCYF’s own form notifying interested parties of an upcoming conference call to provide input into DCYF’s best interest determination incorrectly states: “Please note that the identified LEA with responsibility for the child’s current enrollment must ensure that the foster child remains in his or her current educational setting, as identified in the attachment, while any disputes are being resolved to minimize disruptions for the foster child”. DCYF Ex. 3. We would respectfully request that DCYF modify this statement forthwith to reflect the precedent set in the Consolidated Decision and affirmed herein.
For the Commissioner,
Kathleen S. Murray
Hearing Officer
Kenneth Wagner, Ph.D.
Commissioner
Date: June 11, 2018