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Special Education Law
DECISIONLEA ResponsibilityRIDE Case No. 19-010K

Department of Children, Youth and Families v. Portsmouth School Department (In Re: Residency of Student R. Doe)

October 7, 2019·Kathleen S. Murray·Portsmouth, Tiverton

19-010K

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES

v.

PORTSMOUTH SCHOOL DEPARTMENT

(In Re: Residency of Student R. Doe)

DECISION

Held: Under the educational stability provisions of the Every Student Succeeds Act, DCYF’s best interest determination was not shown to be procedurally defective or clearly erroneous. The application of state law to determine the LEA responsible for this student’s education was warranted because her school of origin, as well as the last R.I. public school she had attended, were no longer accessible to her, effectively rebutting the presumption under ESSA that remaining in her school of origin was in her best interest.

DATE, October 7, 2019

Travel of the Case:

This matter originated as a request by the Department of Children Youth and Families (“DCYF”) for an interim order, residency determination, and designation of the party responsible for the education of Student Doe, a youth in foster care moving to the Bazarsky Campus of Boys Town New England, a group home located in Portsmouth, Rhode Island. DCYF’s request was filed on January 23, 2019, at the same time Student Doe was moved from a residential placement at the Bennington School in Vermont to a new foster care placement at the Portsmouth group home. DCYF’s request followed its January 11, 2019 best interest determination (“BID”) under the Every Student Succeeds Act (“ESSA”) that Doe should be enrolled immediately into the most appropriate school in the LEA of the town in which her new foster care placement is located, i.e. Portsmouth.

Although the Portsmouth School Department (“Portsmouth”) disagreed with DCYF’s BID, it enrolled Student Doe immediately, as required by the decision of the Commissioner in DCYF v. North Smithfield School Department, RIDE No. 17-21 and DCYF v. Pawtucket School Department, RIDE No. 17-22 (the “Consolidated ESSA Decision”) issued on November 21, 2017.[1] In enrolling Student Doe, Portsmouth preserved its right to a hearing and did not waive any arguments with respect to the validity of DCYF’s BID or other reasons for challenging its designation of responsibility for Doe’s education.

On May 14, 2019[2] a hearing was convened. DCYF, Portsmouth and the Tiverton School Department (“Tiverton”) participated in the hearing. Testimony and documentary evidence were received at that time. Counsel for the parties presented closing arguments. The record remained open for one (1) week to permit Portsmouth to present additional evidence with respect to Doe’s reunification plan. The record closed on May 31, 2019 upon receipt of the transcript.

Jurisdiction to hear and decide this controversy arises under R.I. Gen. Laws §16-39-1 (the Commissioner’s authority to hear “any matter of dispute between [parties] arising under any law relating to schools or education”) and R.I. Gen. Laws §16-64-6 (the Commissioner’s authority to resolve disputes arising when a school district or a state agency denies that it is responsible for educating a child).

ISSUES

  • Was DCYF’s determination of Doe’s best interest procedurally defective or clearly erroneous?
  • Can a school located within a residential treatment facility become a “school of origin” under ESSA?

Findings of Relevant Facts:

  • Student Doe is currently fifteen (15) years old and has been in DCYF care and custody for several years. DCYF Ex. 1.
  • On May 25, 2017 Doe was placed at the Bennington School in Bennington, Vermont, a residential treatment facility. Tr. pp. 14-15; DCYF Ex. 1. She resided there until she was discharged on January 24, 2019 at which time her clinical and treatment needs had been addressed to the point that she could be placed in a less restrictive setting that did not include the delivery of educational services. DCYF Ex. 2.[3]
  • Prior to being placed at the Bennington School, Doe had been enrolled in Tiverton Middle School, where she attended from August 30, 2016 up to December 7, 2016.[4] Tr. p. 55; DCYF Ex. 4.
  • On January 11, 2019 when her foster care placement at Boys Town was imminent, DCYF conducted a best interest determination. An educational stability conference call was held involving her Social Caseworker, the DCYF Transitional Coordinator and representatives of the Portsmouth and Tiverton School Departments. DCYF Ex. 2.
  • According to the testimony of DCYF’s Educational Services Coordinator, Lori DiPina, DCYF considered her “school of origin” to be the Bennington School (Tr. p. 17); however, since Doe would no longer have access to the Bennington School upon her discharge, DCYF considered maintaining her in her school of origin “impossible”. Tr. pp. 19, 23.
  • A representative of the Tiverton School Department participated in the educational stability conference call on January 11, 2019 only because Tiverton was the “responsible LEA”[5] during the time Doe was placed at the Bennington School; there was no discussion of Doe’s returning to Tiverton to attend school during the conference call. Tr. pp 17-18; 48.
  • DCYF’s determination of Doe’s best interest was documented after the conference call in a form entitled “Educational Stability- Best Interest Determination.” The factors listed in “Evaluating the Appropriateness of the Current Educational Setting” were addressed with responses and information pertaining to Doe provided. DCYF determined that the school of origin presumption had been rebutted[6] and made a best interest determination that Doe should be enrolled immediately into the most appropriate school in the LEA for the city/town in which [her] foster care placement is located. The person filling out the form noted in addressing whether the timing of a school transfer would coincide with a logical juncture in Doe’s academic and personal progress, that Doe was moving from a residential treatment facility in Vermont to a less restrictive setting because, at this point, her clinical and treatment needs have been addressed to a degree that she is ready for placement in a less restrictive setting. DCYF Ex. 2.
  • Among the factors considered in making determinations of a student’s best interest is the ability of the new school to meet the student’s academic needs, including the need for special instruction or special education and related services. The document incorrectly indicated that Doe had an Individualized Education Program. DCYF Ex. 2; Tr. p. 48.
  • Doe’s parent’s preference is reported on the DCYF evaluation form (her mother remains her educational advocate and was reported to prefer that her daughter attend school in Portsmouth). However, there is no reunification with the mother contemplated, at least according to the reporting of this information in a different portion of the same form. In fact, the “permanency goal” for Doe is reported to be “some form of independent living, adoption, or guardianship”. DCYF Ex. 2;[7] Tr. p. 21.
  • The social caseworker reported during the conference call that it is also Doe’s preference to attend school in Portsmouth. DCYF Ex. 2. Doe does extremely well academically and is on track to graduate with her peers. DCYF Ex. 2.
  • Doe was a high school freshman in January of 2019, the time of her placement at Boys Town, and had attended school in four different school districts in Rhode Island as well as at the Bennington School for “more than a year”.[8] DCYF Ex. 2.
  • At the time of determination of Doe’s best interest (January 11, 2019) it was projected that Doe would remain in placement at Boys Town in Portsmouth for more than ninety (90) days. On the date of the hearing, she continued to reside there and attend school in Portsmouth.[9] DCYF Ex. 2.

Positions of the Parties:

DCYF:

Counsel for DCYF submits that when Student Doe was placed by the Family Court at the Bennington School in Vermont and again when she was discharged from this residential treatment facility, she experienced changes in foster care placement. When Doe moved from the Bennington School to Boys Town in Portsmouth, her change in placement necessitated a “best interest determination” under ESSA. According to DCYF, the question then became: was the Bennington School Doe’s “school of origin” under ESSA. DCYF answers this question in the affirmative. Doe was residing at a facility that “[included] the delivery of educational services provided by that facility” per R.I. Gen. Laws §16-64-1.1(c). She had teachers there and earned credits while receiving the medical treatment she needed at this facility. DCYF argues that the Commissioner implied in the Consolidated Decision that residential treatment facilities could, in fact, be schools of origin. DCYF cites the case of DCYF v. Newport Public Schools, RIDE No. 19-005A,[10] a case in which the Commissioner ruled that the application of ESSA (and consideration of “school stability issues) became moot when there was a Family Court order placing a child (emphasis added) at a residential treatment facility.[11] The inference to be drawn from this case (and the inference we draw from DCYF’s argument here) is that ESSA is nonetheless applicable, and school stability considerations are still relevant, when a child’s foster care placement changes from a residential treatment facility to a different setting.

DCYF argues that precedent that schools within certain types of facilities can never become schools of origin for ESSA purposes is limited to institutions that share the characteristics of the Rhode Island Training School, i.e. places of incarceration. In DCYF v. Newport Public Schools, RIDE No. 18-099A,[12] the Commissioner ruled that the Rhode Island Training School for Youth (the “Training School”) could never become a “school of origin” under ESSA and that DCYF’s determination to the contrary was in error. The Commissioner ruled that involuntary incarceration, where a delinquent minor’s “sentencing” was the key to admission to the facility, could not render the school at such facility a “school of origin” under ESSA. The facts here are clearly distinguishable. Doe’s need for psychiatric treatment and the programming available to her at the Bennington School were the driving factors in her placement there. The placement was for therapeutic reasons. Doe’s completion of her treatment program and the corresponding termination of her placement, has made the Bennington School inaccessible to her. Stated another way, her ongoing attendance at the Bennington School has become impossible. DCYF argues that under such circumstances, the presumption that her best interest is to remain at the Bennington School, her school of origin, is effectively rebutted and state law applies to determine her school residency. Under the Consolidated Decision, as well as DCYF v. Providence School Department, RIDE No. 17-23[13] when the presumption under ESSA has been rebutted due to the impossibility of continued attendance at the school of origin, state law controls. Thus, Doe is a school resident of Portsmouth where she currently resides at Boys Town, per R.I. Gen. Law §§16-64-1 and 16-64-1.1.

Although DCYF did gather information on all of the factors usually attendant to a determination of a student’s “best interest” as is required at the time of any change in foster care placement, these factors essentially became irrelevant. The fact that she could not remain in her school of origin, the Bennington School, subsumed all other facts. The actual rationale for DCYF’s determination was indicated on the evaluation form, i.e. her discharge from a residential treatment facility that includes the delivery of educational services. Since DCYF properly performed a required best interest determination for Doe, and correctly determined that the school of origin presumption had been effectively rebutted, the Commissioner should uphold the determination that Portsmouth has educational responsibility for this student.

Portsmouth School Department:

Portsmouth submits that the Commissioner should exclude from the definition of “school of origin” (for ESSA purposes) educational programs provided at residential treatment facilities. To the extent that there is past precedent that residential treatment programs such as the Bennington School can become a Rhode Island student’s school of origin under ESSA, counsel requests that such rulings be reconsidered. Not only is it illogical to consider such educational programs as “schools of origin” because students who are discharged from such facilities cannot continue in attendance when they are no longer patients of the facility, but in this case, considering the Bennington School as Doe’s school of origin, rather than Tiverton public schools, prevented DCYF from making a correct determination of her best interest. DCYF should have weighed remaining in Tiverton against changing Doe’s enrollment to Portsmouth schools. Instead, DCYF applied state law- rather than applying federal law and furthering ESSA’s school stability goals. This determination was made only because DCYF incorrectly identified her school of origin and concluded that the impossibility of her continued attendance at her school of origin - the Bennington School - effectively rebutted ESSA’s school stability presumption.

DCYF failed to take into account the fact that Doe had attended Tiverton schools prior to her placement at the Bennington School, that her siblings attend school in Tiverton and that her family continues to live there. Portsmouth suggests that the reunification plan described in the January 11, 2019 BID, which did not contemplate Doe’s return to her mother’s home, was incorrect, given the fact that mother remains her educational advocate and the mother’s “preference” for her daughter’s enrollment in Portsmouth schools was taken into account in determining Doe’s best interest. DCYF did not even consider the possibility of Doe’s re-enrollment in Tiverton because it improperly considered a school she was precluded from attending- an educational program provided at a Vermont residential treatment center- as her “school of origin”. Portsmouth takes the position that Tiverton should have been considered as her school district of origin and the presumption that it was in her best interest to continue enrolled there should have prevailed. DCYF should have contemplated a presumption of continued enrollment in Tiverton and truly evaluated all of the factors identified in its January 11, 2019 determination of Doe’s best interest. Not only did it fail to consider Tiverton public schools as the “school of origin” but also, in gathering information during the conference call, it received incorrect and inconsistent information.[14] DCYF’s process for gathering information in conducting a best interest determination is inherently defective and utilizes hearsay. Any purported determination of Doe’s best interest utilizing this information would have been clearly erroneous. The conclusion that state law should be applied to compel Doe’s enrollment in Portsmouth was in error as well.

Tiverton School Department:

Counsel for Tiverton submits that even if one were to accept Portsmouth’s argument that schools located within the campus of residential treatment programs can never become schools of origin for ESSA purposes, the “ultimate calculus would still be protective of [DCYF’s] decision”. Doe’s connections with Tiverton schools, the district points out, have been tenuous for quite some time. Doe attended Tiverton for two elementary grades, followed by enrollment in Portsmouth in grades five and six. She then attended school in Middletown. She last attended school in Tiverton at Tiverton Middle School, from August 30, 2016 to December 7, 2016. She then was hospitalized for a period of time before the Family Court placed her at the Bennington School on May 25, 2017, where she remained until her January 24, 2019 discharge.

During the time Doe was placed at the Bennington School, Tiverton’s involvement was purely financial, as it was designated as the responsible LEA under state law, based on the mother’s ongoing residence in Tiverton.

The record demonstrates that Doe has not attended Tiverton schools for any extended period of time, and the fact is that she has not attended Tiverton Middle School since December 7, 2016. Implicit in the district’s argument is that school stability goals are not attained by Doe’s enrollment in Tiverton schools at this time. There is no reason to doubt that the child’s preference is to attend school in Portsmouth, the community in which she is currently living at Boys Town. Her preference should be accorded weight in determining whether the presumption under ESSA (to remain in her “school of origin”) has been rebutted.

Tiverton’s counsel notes that Portsmouth receives reimbursement from the state for group home beds, including those at the Boys Town facility. This additional funding under R.I. Gen. Laws §16-64-1.1(b) is intended to offset any additional costs incurred in educating Doe and other children placed in group homes in the town of Portsmouth. The district submits that the Commissioner should uphold DCYF’s decision.[15]

DECISION

The Portsmouth School Department requests that the Commissioner establish[16] a bright-line rule that a school located within a residential treatment facility cannot become a “school of origin” as defined by ESSA.[17] If such be the ruling, then pursuant to the Commissioner’s ruling in DCYF v. Newport Public Schools, RIDE No. 18-099A, this matter would be remanded to DCYF to determine if the goal of ESSA’s educational stability provisions will be advanced by applying ESSA’s school of origin presumption to the school Doe previously attended in Tiverton and making another best interest determination to determine if the presumption of maintaining Doe in her school of origin has been rebutted or if state residency rules should automatically be applied. See DCYF v. Newport Public Schools, supra.[18] However, rather than request a remand to DCYF and a re-do of Doe’s best interest determination, however, Portsmouth further requests that the Commissioner actually conduct a best interest determination, conclude that a presumption that Doe remain in Tiverton has not been rebutted and order that Doe be enrolled in Tiverton schools.

There are several impediments to granting the relief requested by the Portsmouth School Department.

A bright line rule establishing that a school located within a residential treatment facility can never become a school of origin under ESSA fails to take into account the diverse array of “residential treatment programs” both within and beyond Rhode Island’s borders. Administrative notice is taken of the fact that there are different program configurations through which such facilities effectively provide medical care and educational services to students placed at such facilities. The record here does not establish the exact nature and full extent of such program configurations, in Rhode Island or in schools outside the state at which Rhode Island students are placed. The Commissioner’s ruling in Newport, supra, recognized that the R.I. Training School could never be a student’s school of origin under ESSA based on the unique characteristics of this single institution- a school to which children are sentenced, rather than enrolled or placed. The Training School stands apart as a place of incarceration. It does not share the characteristics of a therapeutic and/or educational placement at a private school. The notion of insuring the stability of an involuntary commitment at an institution like the Training School simply made no sense under any circumstances. Stated another way, there was no set of facts under which the benefits of school stability under ESSA would justify a student’s maintenance at the Training School. The Commissioner gave legal significance to this fact.

The record in this case presents no evidence of characteristics common to all residential treatment centers from which one could draw the inference that an on-grounds educational program at such a facility could never become a student’s school of origin under ESSA. The facts in this record demonstrate only that Doe’s continuing participation in the educational programming provided to her at the Bennington School is no longer accessible to her. The record does not establish that this fact is universal to all students who are placed in residential treatment facilities, or to all schools located within such facilities. Thus, establishing a “bright line rule” that schools located within such facilities can never become schools of origin is not warranted and certainly does not appear prudent, based on the limited facts in the record of this case. Until a future ruling based on a record in which appropriate facts are in evidence, DCYF should continue to determine whether it is possible or impossible for the student who is discharged from a residential treatment facility to continue to attend his or her “school of origin” at such facility. DCYF did so in Doe’s case and found that her ongoing attendance at the Bennington School was not possible. The presumption that remaining in her school of origin was in her best interest was therefore “effectively rebutted”. Application of state law made Doe a school resident of Portsmouth and it continued to do so at the time of hearing.

In this case, even if the Commissioner were to eliminate the Bennington School from consideration as Doe’s school of origin, proceeding to make an ESSA educational stability determination could not possibly result in her enrollment in the Tiverton school system.[19] According to Portsmouth’s argument, Tiverton Middle School would become Doe’s “school of origin”. Putting aside the fact that Doe has not attended this school since December 7, 2016, Doe was at the time of the January 11, 2019 best interest determination a freshman in high school. She is no longer a middle school student. Her ongoing attendance at Tiverton Middle School was, and continues to be, impossible, thereby effectively rebutting any ESSA presumption with respect to this proposed alternative school of origin. As previously noted, the Commissioner has ruled that the “school of origin” presumption does not extend to the district of origin. The Consolidated Decision clarified the nature of DCYF’s determination under ESSA:

[t]he question to be answered by DCYF under ESSA is not “What LEA is financially or otherwise responsible for a child’s education?’ or ‘Where should the child ultimately be placed?’ But rather, ‘Has ESSA’s presumption that it is in the child’s best interest to remain in the school he or she is currently attending been rebutted by facts suggesting that it is not in the child’s immediate best interest to continue attending that school?’

Id. at 9. Here, Portsmouth argues that Doe’s best interest is served by her remaining enrolled in Tiverton, but ignores the fact that Tiverton Middle School is no longer appropriate for her grade level. Doe’s placement at Tiverton High School would neither conform to ESSA’s school stability provisions nor would such placement accomplish the goal of school stability for Student Doe. Again, with the presumption under ESSA effectively rebutted, Doe becomes a school resident of Portsmouth.

Finally, DCYF’s determination that it was and is in Doe’s best interest to attend school in Portsmouth, the community in which she currently resides at Boys Town, has not been shown to be clearly erroneous or procedurally defective.[20] Our review of DCYF’s decision and specifically its determination that state law governs Doe’s school placement while she resides at Boys Town, confirms that it is correct and that it was made according to established procedure.

For the foregoing reasons, DCYF’s best interest decision is upheld and the Portsmouth School Department is confirmed as the LEA responsible for Doe’s education during the time she is placed by DCYF at Boys Town in Portsmouth, Rhode Island.

Footnotes

[1] In the Consolidated Decision, and more recently in DCYF v. Newport School Department, RIDE No. 18-053K, June 11, 2018; DCYF v. Newport Public Schools (In Re: Student P. Doe), RIDE No. 18-099A, December 31, 2018; DCYF v. Portsmouth School Department, RIDE No. 19-049P, May 21, 2019 the Commissioner has issued a “clear and repeated instruction” that:

[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… (Consolidated Decision at pages 12-13).

[2] This hearing date was selected by agreement of the parties.

[3] The parties stipulated to her date of discharge from Bennington.

[4] From December 9, 2016 until May 25, 2017 Doe was a patient at Bradley Hospital. DCYF Ex. 1 and 4.

[5] Under R.I. Gen. Laws §16-64-1.1 and 16-64-1.2 the LEA responsible for payment of its per pupil special education cost for children placed by DCYF in residential treatment centers that include the delivery of educational services is the city or town in which the parent(s) reside. Doe’s mother has at all relevant times lived in the town of Tiverton, Rhode Island.

[6] DCYF’s form describes the legal presumption that it is in a student’s best interest to remain in his or her current school as a “default assumption” See DCYF Ex. 2.

[7] Stated another way, it is not expected that Doe will return home to live with her mother in Tiverton in the foreseeable future. See Tr. p.9.

[8] Actually, Doe was at the Bennington School from May 25, 2017 to January 24, 2019, over a year and a half.

[9] Counsel for the Portsmouth School Department indicated at the time of hearing that the district was willing to let the child remain in Portsmouth schools for the remainder of the 2018-2019 school year, but requested that she be enrolled in Tiverton at the outset of the 2019-2020 school year, since Tiverton was her school of origin and it was in her best interest to be enrolled in Tiverton.

[10] April 26, 2019

[11] The issue in DCYF v. Newport Public Schools, cited above, was, however, financial responsibility and not school enrollment. The Commissioner determined in that case that state law controlled to fix responsibility on the city in which the child’s parent lived at the time of termination of parental rights, i.e. Newport.

[12] December 31,2018

[13] December 4, 2017

[14] DCYF Ex. 2, the document demonstrating DCYF’s evaluation of the appropriateness of Doe’s current educational setting, incorrectly notes that Doe has an IEP.

[15] Tiverton also correctly pointed out at the time of hearing that it is Portsmouth’s burden to prove that the DCYF decision was “clearly erroneous” or procedurally defective, per the Consolidated Decision.

[16] Portsmouth’s actual request is that the Commissioner reconsider prior rulings that determined that a school in such residential treatment facilities could be “school of origin” under ESSA. Tr. pp. 76-77. The hearing officer could not find a prior ruling of the Commissioner on this point.

[17] ESSA defines a “school of origin” as the school in which a child is enrolled at the time of placement in foster care. If a child’s foster care placement changes, the school of origin would then be considered the school in which the child is enrolled at the time of the placement change. (ESEA section 1111(g)(1)(E)(i). See also Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care, (June 23, 2016 (“Federal Guidance”) at 11.

[18] In DCYF v. Newport, supra, the Commissioner ruled that because the R.I. Training School could never be a school of origin, this did not automatically mean that ESSA’s educational stability provisions became inapplicable. The application of ESSA’s educational stability provisions “and/or” application of state residency rules was a judgment that DCYF was directed to make on a case-by-case basis. See pages 6-7.

[19] The Commissioner has rejected the proposition that there is a “district of origin” for ESSA purposes. See DCYF v. Providence School Department, 17-023, December 4, 2017.

[20] The Commissioner has limited the scope of review of challenges to DCYF’s best interest determinations to these two grounds, recognizing that the child welfare agency is to make the final decision is such matters. Consolidated Decision at 13.

For the Commissioner,

Kathleen S. Murray

Hearing Officer

Date: October 7, 2019

Angélica Infante-Green,

Commissioner