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Special Education Law
DECISIONDismissedRIDE Case No. 19-045A

Department of Children, Youth and Families v. North Kingstown School Department and Warwick Public Schools, In re D. Doe

May 13, 2020·Anthony F. Cottone·North Kingstown School Department and Warwick

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Petitioner

vs.

NORTH KINGSTOWN SCHOOL DEPARTMENT and WARWICK PUBLIC SCHOOLS, Respondents

In re D. Doe

RIDE No. 19-045 A

DECISION AND ORDER

Held: Petition filed by state child welfare agency seeking interim and final orders to compel one of two named school districts to accept responsibility for the education of a child with a disability in its custody whom it had placed in an out-of-state residential treatment facility that was providing educational services was denied and dismissed as hearsay evidence of mother’s last known residence in Rhode Island under R.I. Gen. Laws § 16-16-64-l.2(c) was of insufficient probative value to meet agency’s burden of proof. Agency was ordered to take whatever measures were necessary to ascertain the information required under § 16-16-64-l.2(c) so that the school district responsible for providing the child with a FAPE could be identified and was ordered to ensure that an interim IEP was implemented in the meantime.

May 13, 2020

On March 15, 2019, Petitioner, Department of Children, Youth and Families (“DCYF”), requested that the Commissioner enter interim and final orders to compel one of two Respondents – either the North Kingstown School Department (“NKSD”) or the Warwick Public Schools (“WPS”) – to accept responsibility and contribute financially to the education of Student D. Doe, a child with a disability in DCYF custody whom DCYF had placed in an out-of-state residential treatment facility that provides educational services.

I. Introduction

This is yet another in what appears to be a never-ending series of claims by DCYF against local school districts pursuant to tit. 16, ch. 64 of the Rhode Island General Laws, which allocates responsibility for the placement of foster children based upon the residency of their parents and guardians, including parents or guardians who no longer reside in the state.[1] This case, like several before it and many that remain to be decided, requires the application of R.I. Gen. Laws §§ 16-64-1.1(c) and 16-64-1.2(c), which read together provide that foster children whose parents no longer live in Rhode Island and who are placed by DCYF in a “residentialtreatment program, group home, or other residential facility, whether or not located in the state of Rhode Island, which includes the delivery of educational services provided by that facility... shall have the cost of their education paid for as provided for in subsection (d) and § 16-64-1.2.” See§ 16-64-1.1(c). In this case, as in most, § 16-64-1.1(d) is inapplicable,[2] and as is the case more often than not, no factual determination with respect to the residency of the child’s parents was made by the Family Court when it approved the residential placement of the child. Thus, it is § 16-64-1.2(c) that is applicable, and that subsection provides that RIDE:

shall designate the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF for children in state care who have neither a father, mother, nor guardian living in the state... using the following criteria: (1) last known Rhode Island residence of the child’s father, mother, or guardian prior to moving from the state, dying, surrendering the child for adoption or having parental rights terminated; (2) when the child’s parents are separated or divorced and neither parent resides in the state, the last known residence of the last parent known to have lived in the state. Id. (emphasis added).

Frequently, in order to decide such cases and determine the “last known Rhode Island residence of the child’s father, mother, or guardian,” the Commissioner is left with the unenviable task of weeding through a thicket of out-of-date records of the Rhode Island Children’s Information System (so-called “RICHIST Releases”), navigating a minefield of hearsay objections, and then evaluating a social worker’s attempt to reconcile inconsistent information in the RICHIST Releases, a social worker who, as often as not, did not create the RICHIST records being relied upon. The Commissioner must then decide whether DCYF has met its prima facie case by proving: (1) that the “last known residence” of the child’s parent or guardian was located within the respondent school district’s borders; (2) that DCYF paid the residential treatment facility in question; (3) that DCYF made demand for the statutory per pupil amount owed by the relevant school district; and (4) that the school district wrongfully denied payment. In most such cases, the Commissioner must then weigh the credibility of a school district’s denial of responsibility and/or evaluate the claim that the parent’s “last known residence” was located in another district.

It is thus not hard to see why all parties involved are crying for legislative reform.

II. Jurisdiction, Standard of Review and Procedural History

The Commissioner is required by statute “to interpret school law,” RIGL §§ 16-1-5(10) and 16-60-6(9)(viii), and to “require the observance” and “enforce the provisions of all laws relating to elementary and secondary education.” RIGL §§ 16-1-5(9) and 16-60-6(9)(vii). Thus, she has subject matter jurisdiction here, and DCYF has standing, under RIGL §§ 16-64-1.2, 16-64-1.3 and 42-72-5(24), as well as under § 16-64-6, which concerns disputes over residency for school purposes. As in most proceedings before the Commissioner, the petitioner – in this case DCYF – has the burden of proof by a fair preponderance of the evidence.[3]

In its March 15, 2019 Petition (Joint Ex. 1), DCYF requested both final relief as well as an interim order pursuant to R.I. Gen. Laws § 16-39-3.2, which requires that a hearing be conducted within five (5) working days of the request. However, the request for an interim order was denied by the undersigned Hearing Officer on March 18, 2019, after he found that:

  1. maintaining the status quo pending an expedited hearing on a final order would not result in a delay sufficient to trigger the need for an interim order hearing under RIGL § 16-39-3.2; and
  2. the interests of D. Doe would best be served by scheduling a hearing on a final order expeditiously, thereby avoiding the risk that the LEA assigned responsibility on an interim basis would have to be changed following a final hearing.

III. Facts

Evidentiary hearings were conducted before the Hearing Officer on September 5, 2019 and February 25, 2020. All three parties were represented by counsel, and DCYF presented the testimony of Fernando Gonsalves, a DCYF Social Case Worker II (“Social Worker Gonsalves”).

The following facts are based upon that testimony as well as the various documents introduced into evidence at the two hearings.

  1. D. Doe is a twenty year-old child with a disability and multiple significant medical issues, including cerebral palsy. She also suffers from seizures, is nonverbal and wheelchair dependent, and uses a G-tube for feeding. (See Joint Ex. 1, ¶ 3 at 2; September 5, 2019 Hearing Transcript (the “2019 Tr.”) at 25).

  2. She has been in DCYF’s custody and control since at least August 21, 2014, when the Family Court granted DCYF’s petition for temporary custody. (See DCYF Ex. 1). However, D. Doe’s mother’s (“Ms. Doe’s”) parental rights were never terminated. (See id. at 49).

  3. Although various RICHIST Releases refer to D. Doe’s biological father, the name attributed to the specific individual varies (compare, e.g., DCYF Exs. 12 and 13; see also 2019 Tr. at 27-28, 32-34), and no one identified as the biological father has ever been involved in any way with D. Doe. See February 25, 2020 Hearing Transcript (the “2020 Tr.”) at 14. Moreover, Social Worker Gonsalves testified that Ms. Doe did not know the identity of D. Doe’s biological father. (See id.).

  4. As of May 16, 2017, Ms. Doe was living with a boyfriend in North Kingstown, Rhode Island. (See DCYF Ex. 14).

  5. Pursuant to a February 8, 2018 order of the Family Court, (see DCYF Ex. 2), D. Doe was placed at an out-of-state residential treatment facility on April 23, 2018. The facility was operated by Crystal Springs, Inc. (“Crystal Springs”), provided educational services and was located in Assonet, Massachusetts.

  6. On March 16, 2018, DCYF sent Respondent NKSD a Notice of Responsibility for a Child in State Care advising the District that D. Doe had been deemed to be a resident of the Town of North Kingstown under R.I. Gen. Laws § 16-64-1.2. (See letter attached to DCYF Ex. 4 (Affidavit of Lori DiPina (the “DiPina Aff.”), DCYF’s Educational Services Coordinator)).

  7. NKSD replied on March 19, 2018 and advised DCYF that D. Doe’s “mother resides in West Warwick.” (See reply attached to DCYF Ex. 4).

  8. When asked the basis of DCYF’s conclusion that D. Doe’s mother resided in North Kingstown, Social Worker Gonsalves testified: “That was based upon on that hearing -- I guess the hearing that they had on that.” (See 2020 Tr. at 8).

  9. However, Social Worker Gonsalves had previously testified that: [a]t that hearing, we had approached the Family Court judge and informed her that the child was at Hasbro Hospital. She had significant medical needs. And as part of that update, we were to inform the Judge that we were having a very difficult time getting ahold of the mother as we did not know her whereabouts and she was not cooperating with the Department. She wasn’t returning any phone calls. She wasn’t visiting the child at the hospital. She wasn’t signing any paperwork or any forms for -paperwork in regards to medications for the child and treatment. (See 2019 Tr. at 18-19) (emphasis added). Thus, not surprisingly, the Family Court order approving the placement at Crystal Springs makes no mention of the residency of D. Doe or her mother. (See DCYF Ex. 2).

  10. On December 11, 2018, and then again on March 14, 2019, DCYF sent out Notices of Responsibility for a Child in State Care, this time advising Respondent WPS that D. Doe had been deemed a resident of the City of Warwick under R.I. Gen. Laws § 16-64-1.2. (See letter attached to DCYF Ex. 4). WPS did not reply, but subsequently has denied any responsibility for D. Doe.[4]

  11. According to Social Worker Gonsalves, prior to sending the March 14, 2019 Notice of Responsibility for a Child in State Care to WPS, DCYF:

    had attempted to locate [D. Doe’s mother]. She had basically disappeared. The reports were from the mom’s -the mother’s paramour that she had moved, but we were unable to contact the mother. The mother basically kind of fell off the -we weren't able to locate her. She wasn’t contacting the department. She wasn’t returning any calls. She wasn’t showing up to any court hearings to the point where we needed medical documents signed, and she wasn’t even doing that; so we had to get a court judge to give us signing rights for her. (See 2020 Tr. at 9-10).

  12. In its March 16, 2019 Petition, DCYF alleged that: (a) “[f]rom August 10, 2016 to September 20, 2018,” D. Doe’s mother resided in North Kingstown; and (b) “[f]rom September 20, 2018 and ongoing” she lived in Warwick.” (See Joint Ex. 1, ¶ 1 at 2).

  13. Social Worker Gonsalves explained that DCYF’s conclusion that D. Doe’s mother resided in Warwick was based upon a report by Ms. Doe’s “paramour,” which Social Worker Gonsalves “was unable to confirm because, again, she never – I was never able to reach her,” (see id. at 11-12), and added that:

    really the only communication I was able to establish with her would be, like, emails. From time to time she would respond to an e-mail. The last e-mail that I got was that -and I think that was part of the record -stating that she gave me the dates when I asked her to confirm when did she move? Was she at Warwick? And that’s when she stated she was at Warwick on those dates, and that she had moved to Connecticut on those dates. (See id. at 13).

  14. The emails referenced by Social Worker Gonsalves from D. Doe’s mother were all sent during the afternoon of June 11, 2019 – three months after DCYF had filed its Petition with the Commissioner – and her the statements in the emails can be summarized as follows:

    “Hi. I still have the same phone number. Im living Connecticut. I had to leave where I was staying and had nowhere else to go but stay with a friend in Connecticut. I go see [D.Doe] as much as i can i just got my license back and still have no vehicle. Im doing the best I can right now!” “I moved to ct about two months ago. The address is __________.” “My address when I was in warwick was ______. I left there in march.” “I left NK in march of 2018. And moved to warwick in may of 2018” (See DCYF Ex. 16).

  15. DCYF agreed with Crystal Springs to pay a daily contract rate of $793.35, and it expected that the responsible LEA would be statutorily responsible for a portion of that amount, which, as of March/April of 2018, would have amounted to $171.04 per day in the case of NKSD, and $100.85 per day in the case of WSP, as per the respective per pupil special education cost calculated by RIDE. (See letters attached to DCYF Ex. 3 (Affidavit of DCYF Associate Director Susan Lindberg and to DCYF Ex. 4 (the DiPina Aff.)).

  16. Although DCYF produced a RICHIST Release that allegedly reflects the payments made by DCYF to Crystal Spring as of March 18, 2019, the total is not provided and there is no explanation of the rather ambiguous document in the accompanying affidavit. (See DCYF Ex. 5, Affidavit of Kathryn Goad, Principal Human Services Business Officer and attached list of payments).

  17. D. Doe has continued to reside at Crystal Springs and, at least as of February 25, 2020, has been provided with educational services, although according to Social Worker Gonsalves, her individualized education program (“IEP”) is out of date. When contacted, the Office of the Educational Advocate reportedly informed him that they could not pursue the matter “until the LEA was determined.” (See 2019 Tr. at 27, 29-30).

  18. Under the federal Individuals with Disabilities Education Act (the “IDEA”), D. Doe, who was born on November 11, 2000, is entitled to receive a free, appropriate, public education (a “FAPE”) until November 11, 2022.

IV. Positions of the Parties

1. DCYF

In its April 21, 2020 Memorandum of Law (the “DCYF Mem.”), DCYF argues that, “[o]n the facts of this case, RIGL §16-64-1.1(c) requires DCYF to satisfy two elements in order to establish a prima facie case:

a. DCYF placed the youth in a residential-treatment facility which includes the delivery of educational services provided by that facility;

b. Some evidence sufficient to support the designation of a city or town pursuant to subsection RIGL §16-64-1.2(a), RIGL §16-64-1.2(b), or RIGL §16-64-1.2(c). RIGL §16-64-1.2(d). See DCYF Mem. at 2. Leaving aside for the moment whether or not this is, in fact, an accurate description of DCYF’s burden of proof (which will be discussed), there is little question but that DCYF satisfied its burden of proof as to (a). As to (b), DCYF argues that “[t]here is substantial evidence that [D. Doe] lived with her mother in North Kingstown just prior to her placement at Crystal Springs,” see id. at 1, and cites the fact that:

[a.] DCYF Caseworker Fernando Gonsalves testified that he visited the youth and her mother at the North Kingstown residence prior to her placement and that fact was memorialized in Case Activity Notes introduced at the hearing on this matter... [and] [b.] DCYF records and emails between Mr. Gonsalves and the mother introduced at the hearing established that the mother moved from North Kingstown to Warwick while the youth was at the residential placement and then moved to Connecticut.

Id. at 1. DCYF argues further that having met its burden of proof, the evidentiary burden shifted, and it was then incumbent upon the Respondents to prove that they were not responsible.

As noted by DCYF:

Both North Kingstown [School Department] and Warwick [Public Schools] were perfectly capable of joining some other Rhode Island LEA which either believed was responsible for the youth’s education but failed to do so. Both were given the opportunity to call witnesses or be granted a continuance for such purposes. However, both declined to present a ‘last known Rhode Island residence’ or some other relevant address for the mother and instead has attempted to rely on evidentiary and burden of proof arguments which have been addressed by DCYF in this Memorandum.

Id. at 4.

Finally, DCYF claims that a ruling in its favor is dictated by public policy, arguing that:

... federal law and Rhode Island regulations require that Rhode Island disabled children be ‘identified, located, and evaluated’ pursuant to specific ‘child find’ provisions. 200-RICR-20-30-6.5.1(J). RIGL § 16-64-1 et al. does not distinguish between general education foster children and special education foster children. DCYF v. Newport School Department, RIDE No 19-006A at pp. 9. Any reading of RIGL § 16-64-1.1(c) which fails to account for Rhode Island child find requirements potentially leaves Rhode Island foster children requiring an LEA for special education services without an LEA for provision of special education services and makes Rhode Island’s statutory scheme in violation of federal law and Rhode Island regulations.

Id. at 5.

2. WPS

WPS argues in its March 22, 2020 Memorandum (the “WPS Mem.”) that DCYF failed to meet its burden of proving that D. Doe’s parents resided in Warwick. According to WPS, “the

‘business records’ and other ‘evidence’” relied upon by DYCF contain “numerous inaccuracies, multiple layers of hearsay” and “simply incorrect information with respect to items as basic as the parent’s name.” See id. at 2. More specifically, WPS argues that:

DCYF claims that [D. Doe] resides at Crystal Springs[, Massachusetts] and has resided there since April 23, 2018. In March of 2018, DCYF sent the NKSD a letter requesting that NKSD accept financial responsibility for [D. Doe] (DCYF Ex. 4). The letter stated that the parent resided at 185 Pine River Drive, Apt. B., North Kingstown, RI. NKSD responded that the family lived in West Warwick (Id.). DCYF never investigated this claim. Then DCYF sent notice on December 11, 2018 to [WPS] claiming the parent resided at 545 Post Road, Warwick, RI. It is uncontested that this letter was sent to an old address (Id.). DCYF then sent [WPS] a second notice to the same wrong address on March 14, 2019 (Id.). There is nothing on the record to indicate whether [WPS] received either notice.

DCYF asks the Commissioner to determine that the [WPS] is the district responsible when their own information, the very information presented at hearing, is admittedly inaccurate. Why should [WPS] be required to rely solely on DCYF data that is inaccurate? DCYF ‘business records’ cannot clarify the simple identify of the father (DCYF Exhibits 12 and 13). DCYF's own Petition (Joint Exhibit 1) says that the mother resided in Warwick from September 20, 2018 and then DCYF Exhibit 13 lists a last known address in Warwick as June 1, 2018. On cross examination, it became readily apparent that DCYF actually never saw or visited the family in Warwick. Instead they purport to rely on hearsay allegedly from the mother's boyfriend. In order for DCYF to rely on the boyfriend's statements, he must be unavailable.

Id. at 2-3 (emphasis in original), citing Superior Court Rule of Evidence 804. Moreover, WPS argues that “based on the record presented and the numerous errors in the RICHIST reports introduced,” the records “‘indicate a lack of trustworthiness,’ and thus should not be relied upon by the Hearing Officer under Rule 803(6). See id. at 4-5, quoting Rhode Island Managed Eye

Care, Inc. v. Blue Cross Blue Shield of Rhode Island, 996 A2d 684,690 (R.I. 2010), and citing

Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d 87, 94 (R.I. 1992) and Ferrell v. Wall, 889 A.2d

177, 188 (R.I. 2005).

Finally, WPS argues that an e-mail exchange between DCYF and D. Doe’s mother should not have been admitted into evidence, and should not be relied upon since:

[t]here was no opportunity for [WPS] to cross-examine the mother related to this email. There is absolutely no proof on the record that it is actually the mother who replied in the email. In fact, the email itself is overtly contradictory. The individual responding first states that they ‘left’ Warwick in March (apparently of 2018). In the very next exchange she then states that she ‘moved’ to Warwick in May of 2018. There was no direct testimony to clarify these contradictions.

See id. at 5-6, citing Newport School Committee v. RIDE, et al., R.I. Super. CA No. PC 2019- 5968.

3. NKSD

In its March 23, 2020 Memorandum (the “NKSD Mem.”), NKSD argues that: [a]ccording to the complaint filed by [DCYF], the Department states that the child was placed in a residential facility on or about April 23, 2018. (See Joint Exhibit #1, page 2, #5). In DCYF’s Exhibit #16, the parent states that she left North Kingstown in March 2018. (See id. at page 1). By the evidence provided by DCYF, North Kingstown is not the city or town that is responsible for the education of [D. Doe]. Id. at 2.

V. Decision

The facts of this case are similar to those of a recent case involving the Newport School Committee, where the Commissioner’s decision and its affirmance by the Council on Elementary and Secondary Education were reversed by the Superior Court. See Newport Sch. Comm. v. DCYF, C.A. No. PC-2019-5968 (Superior Court, February 11, 2020). As noted by Judge Vogel in Newport Sch. Comm., supra, “[p] rima facie evidence is ‘that amount of evidence that, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue’ and can be rebutted by the opposing party, at which point the trier of fact must weigh the evidence presented.” Newport Sch. Comm., supra, slip op. at 16, quoting Paramount Office Supply Co., Inc. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 (R.I. 1987) (citing Nocera v. Lembo, 121 R.I 216, 397 A.2d 524 (1979)).[5]

Here, although DCYF’s description of its prima facie case in its Memorandum, see§ IV, supra at 9, citing DCYF Mem. at 2, left out half the elements, DCYF did submit documents supporting the missing components, i.e., (1) that it paid the residential treatment facility in question. See§ III, supra, ¶ 16 at 8; (2) that it made demand for the statutory per pupil amount owed by the relevant school district. See§ III, supra, ¶¶ 6, 9 at 5-6; and (3) the fact that the school districts denied payment has been admitted by both Respondents.

Thus, what remained was for DCYF to meet its burden of proving that Ms. Doe’s last known residence before moving out of state was located in either the NKSD or within the WPS.

The Reliability of the Relied-Upon Hearsay

According to the June 11, 2019 emails from D. Doe’s mother upon which DCYF relies, it is unclear whether she is either (i) “staying with a friend,” or (ii) actually has established residency, in Connecticut. See § III, supra, ¶ 14 at 7-8. And although it is possible to construe the emails as stating that she left North Kingstown in March of 2018, moved to Warwick in May of 2018, and left Warwick in March of 2019, see id., the cryptic nature of the email messages coupled with the proven unreliability of Ms. Doe leave them open to other interpretations. Yet, as the Court noted in Newport Sch. Comm., supra, although “[a]dministrative agencies may consider hearsay evidence . . . our Supreme Court explicitly noted that ‘[h]earsay evidence may vary significantly in its credibility and probative value’ and cautioned agencies to balance the efficiency of the evidence against its reliability.’” Id. at 21, quoting DePasquale v. Harrington, 599 A.2d 314, 316 (R.I. 1991).

When balancing the hearsay evidence here against its reliability it becomes apparent that standing alone, the cryptic emails are of insufficient probative value to meet DCYF’s burden of proof especially since, as was the case in Newport Sch. Comm., supra, the declarant was not present at the hearing, and thus Respondents were precluded from asking the questions that might have resolved the ambiguities, or enabled some more definitive conclusion as to the month and year of Ms. Doe’s departure from Rhode Island. In fact, it is clear that DCYF itself was not clear when Ms. Doe left Rhode Island when it filed its Petition with the Commissioner on March 15, 2019. After all, the emails from Ms. Doe upon which DCYF ended up relying were not sent until June 11, 2019, three months after its Petition was filed. Yet, rather than make the effort necessary to actually decide this dispositive factual question for itself, it simply made a claim against both districts.[6]

DCYF’s Remaining Legal Obligation

Meanwhile, D. Doe’s IEP is out of date and no LEA has taken on the responsibility for updating it and otherwise meeting its legal obligation to provide D. Doe with a FAPE under the IDEA and corresponding state Regulations Governing the Education of Children with Disabilities (the “Disability Regs.”), 200 R.I. Admin. Code 20-30-6. Thus, whether or not

DCYF’s failure to prove its prima facie case precludes it from later amending its petition or otherwise attempting again to receive the statutorily-mandated financial contribution owed by the legally responsible school district – an issue that will be left for another day – it is not somehow relieved of its legal responsibility to D. Doe to take whatever measures are necessary to locate the last Rhode Island residence of her mother under R.I. Gen. Laws § 16-16-64-l.2(c), and thereby enable the legally responsible school district to be identified properly and to then meet its legal obligation to the child.

VI. Order

For all the above reasons:

  1. DCYF’s March 15, 2019 Petition is denied and dismissed, without deciding at the present time whether said dismissal is with or without prejudice to a later claim by DCYF for the statutorily-mandated contribution towards the cost of Student D. Doe’s education; and
  2. DCYF shall forthwith:
    1. take whatever measures are necessary to ascertain the last Rhode Island residence of D. Doe’s mother under R.I. Gen. Laws § 16-16-64-l.2(c), and report back its findings to the undersigned Hearing Officer as soon as practicable;
    2. until an LEA is identified, ensure that a group of qualified individuals at Crystal Springs and appropriate staff of DCYF confer with respect to creating a draft, interim IEP for D. Doe to be implemented until a properly-constituted IEP team is put in place; and
    3. provide a copy of this decision to D. Doe’s educational advocate, or if unknown, to Maria Heffernan (mheffernan@ric.edu), Program Coordinator, Educational Advocate Program at the Paul V. Sherlock Center on Disabilities at Rhode Island College.

Footnotes

[1] There currently are approximately thirty (30) such petitions pending before the Commissioner, and she has been informed that a greater number are in the offing.

[2] R.I. Gen. Laws § 16-64-1.1(d) provides that:

Children placed by DCYF in group homes, child-caring facilities, community residences, or other residential facilities shall have the entire cost of their education paid for by DCYF if:

  1. The facility is operated by the state of Rhode Island or the facility has a contract with DCYF to fund a pre-determined number of placements or part of the facility's program;
  2. The facility is state licensed; and
  3. The facility operates an approved, on-grounds educational program, whether or not the child attends the on-grounds program.

Id.

[3] See Larue v. Registrar of Motor Vehicles, Dept. of Transp., 568 A.2d 755, 758-59 (R.I. 1990), citing Gorman v. University of Rhode Island, 837 F.2d 7, 15 (1st Cir.1988) (general presumption in administrative proceedings “favors the administrators” and places the burden of proof upon the party challenging the action “to produce evidence sufficient to rebut this presumption.”).

[4] Indeed, as will be discussed, WPS’s attorney has suggested that WPS never received either of the DCYF notices, which were both sent to an old address no longer used by the District.

[5] Judge Vogel also concluded that when using the term “residence” in R.I. Gen. Laws § 16-64-1.2(c), the General Assembly intended that it be defined as one’s “fixed, permanent, or ordinary dwelling place,” see id., slip. op. at 17, citing DeBlois v. Clark, 764 A.2d 727,734 (R.I. 2001), and found that the child’s location at the residence was relevant to the determination. For present purposes, suffice it to note that this dicta is less compelling when one considers “the context and the purpose of the statute in which it is found.” See id. at 19, quoting Flather v. Norberg, 119 R.I. 276, 281, 377 A.2d 225, 22J (1977) (citing District of Columbia v. In re H. J. B., 359 A.2d 285 (D.C. App. 1976). In many cases, a foster child placed by DCYF in a residential placement that provides educational services may be transferring from a group home that does not provide educational services, and thus will not have lived with a parent or guardian for some time. Moreover, § 16-64-1.2(c) makes no distinction between the custodial and non-custodial parent, and thus provides that “when the child’s parents are separated or divorced and neither parent resides in the state, the last known residence of the last parent known to have lived in the state” is what is relevant Id. Indeed, the Superior Court’s holding in Smith v. McWalters, C.A. No. 00-0928, 2000 WL 1273912 (Superior Court, July 27, 2000) and prior decisions of the Commissioner – see, e.g., Student E. Doe v. Central Falls. Sch. Dist., RIDE No. 20-016A (February 12, 2020) at 5-6 – seem at odds with the more rigorous concept of residency suggested by Judge Vogel in Newport Sch. Comm., supra. Thus, in McWalters, Judge Silverstein, referring to the definition of residence in § 16-64-1, noted that:

[t]he Commissioner defined the term ‘reside’ as ‘a factual place of abode, where one is physically living.’ This definition is consistent with the definition of the term ‘residency,’ which is defined as the “fact or condition of living in a given place,’ and the definition of the term ‘residence,’ which is defined as ‘bodily presence as an inhabitant in a given place.’ See Black's Law Dictionary, 1310-1311 (7th Ed.1999). The Commissioner's stated definition of the term ‘reside’ as used within the context and purpose of the statute is proper, within the Commissioner's statutory authority, and not an error of law.

Id., slip op. at *3.

[6] While the Commissioner is not unsympathetic to the difficulty of locating the last known Rhode Island address of a parent or guardian in certain cases, sympathy does not legitimize abandoning the basic evidentiary principles that apply to administrative proceedings. In addition, DCYF’s suggestion that the Child Find provisions under the Disability Regs., 200 R.I. Admin. Code 20-30-6.5.1 – provisions whose primary purpose is to identify children who may qualify for special education services – are even relevant and somehow transfer DCYF’s obligation to a foster child in its custody to a school district that may well have had no connection whatsoever to the child, see DCYF Mem. at 5, is less than convincing.

Anthony F. Cottone, Esq.,

as Hearing Officer for the Commissioner

Angélica Infante-Green,

Commissioner of Education

May 13, 2020