Amesbury Public Schools v. Lawrence Public Schools and the Mass. Dept. of Education – BSEA #03-2465



<br /> Amesbury Public Schools v. Lawrence Public Schools and the Mass. Dept. of Education – BSEA #03-2465<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Amesbury Public Schools v. Lawrence Public Schools and the Mass. Dept. of Education

BSEA No. 03-2465

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA), 20 USC Sec. 1400 et seq .; Section 504 of the Rehabilitation Act of 1974, 29 USC Sec. 794; the Massachusetts special education statute (Chapter 766), MGL c. 71B; the Massachusetts Administrative Procedures Act, MGL c. 30A; and regulations promulgated under these statutes.

On December 3, 2002, the Amesbury Public Schools (Amesbury) filed a request for hearing with the Bureau of Special Education Appeals (BSEA) contesting the Massachusetts Department of Education’s (DOE’s) determination that Amesbury was partially responsible for Student’s residential special education services because it was the last known district of residence of Student’s mother.

After several pre-hearing telephone conferences, the parties agreed to submit this issue for decision on the basis of exhibits previously submitted by Amesbury and Lawrence, to be supplemented with additional affidavit(s) from Amesbury and written closing arguments from counsel for Amesbury and Lawrence. These were submitted on April 1, 2004, and the record closed on that day.

The documentary record consists of Amesbury’s exhibits numbered 1 through 7 (designated here as A-1 through A-7), Lawrence’s exhibits 1-4 (designated L-1 through L-4).

ISSUE PRESENTED :

The sole issue here is whether DOE’s assignment of partial responsibility for Student’s educational placement to Amesbury is correct, or if Lawrence1 has sole responsibility. The outcome turns on whether a preponderance of the evidence supports a conclusion that Student’s mother (Mother) did not actually reside in Amesbury at the relevant time, such that Amesbury does not share responsibility for Student’s education with Lawrence, and DOE’s determination to that effect should be reversed.

AMESBURY’S POSITION:

The evidence shows that Mother did not, in fact, live at the Amesbury address at issue, and no evidence has been presented that she lived at any other address in Amesbury. Lawrence has presented no information based on personal knowledge of any person as to Mother’s address, but, rather, only unverified references to an address in Amesbury. Therefore, Amesbury should have no responsibility for Student’s education.

LAWRENCE’S POSITION

Amesbury has not shown by a preponderance of the evidence that DOE’s determination is incorrect. On the other hand, the existing evidence points to Mother having lived in Amesbury during the relevant period.

FINDINGS OF FACT

Based on the documentary record, I make the following findings of fact:

1. Student is a minor with an unspecified disability who is eligible for special education. At all relevant times up to approximately March 2004, Student was in the custody of the Massachusetts Department of Social Services (DSS). (A-1)

2. In October 1997, the Probate and Family Court for Essex County terminated the parental rights of both of Student’s parents pursuant to G.L. c. 210, Sec. 3. (L-4, p. 4). The court decree lists Mother’s last known address as “12 [B] Street,2 Amesbury, MA” and then-current address as “unknown.” The decree lists Father’s last known address as a street in Lawrence, MA, and also states that his then-current address is unknown. The record contains no information about how and at what addresses Parents were served with notices and other court documents in the Ch. 210 matter or in prior Juvenile or Probate Court proceedings, if any.

3. In or about January 2001, DSS placed Student in a residential program in Western Massachusetts, and, at some subsequent point, asked DOE to assign programmatic and fiscal responsibility for Student’s special education services. (A-1)

4. In a letter to DSS dated October 31, 2002 (“LEA assignment letter”) DOE assigned joint responsibility for Student to Amesbury and Lawrence, as follows:

28.03(4)(b). (DSS has placed this student at [residential school] in [town] in 1/01. According to information given to this office this student has not had an IEP in place for several years.) The student is in a private residential school. The parent’s school district is both programmatically and fiscally responsible. The responsible school district is: JOINT RESPONSIBILITY: AMESBURY AND LAWRENCE (Both mother and father had their parental rights terminated in 1997. At the time of the termination mother…resided at 12 [B] Street and father…resided at [P] Street in Lawrence…

5. The record does not disclose what documents or other information DOE relied on in making the determination of joint responsibility or in determining that Mother lived at “B” Street.

6. A document entitled “Amesbury MA 01913 Street Index List” verifies that there is no “B” Street in Amesbury. However, there is a “D” Street, which is spelled identically to “B” Street except for the initial letter. (A-2) I take administrative notice that 01913 is the only Zip code for Amesbury.

7. Although there is no #12 “B” Street in Amesbury, there is an address in Amesbury known as #12 “D” Street. This address designates one of four rental apartment units in a single large house on “D” street. (The other units in the house are numbered #6, 8, and 10 “D” Street). (A-7) Since 1979 the “D” Street property has been owned by a married couple (“Owners” or “Husband” and “Wife”) who live approximately two blocks away. One or both of the Owners is at the property nearly every day to do routine yard maintenance, and both supervise the property closely.

8. In 1997, the year parental rights were terminated, the Owner’s daughters occupied two of the units, and two males occupied the other two units. Wife maintains in several affidavits that no individual with Mother’s name lived at the “D” Street property in 1997 or at any other time, either as a tenant or as an unauthorized resident, and that the Owners would have known if Mother had in fact lived there. (A-4—A-7).

9. On the other hand, Lawrence has submitted into the record a partially-legible handwritten statement on a blank sheet of paper dated August 12, 1994, that was purportedly written or dictated and signed by Mother. This writing states, in Spanish, that Mother “lives at 12 [D] St. Amesbury MA 01913…”3 (L-2) Additionally, Lawrence has submitted an undated CORI request on DSS letterhead that lists Mother’s address as “12 [B] Street, Amesbury,” (L-1) and a “District Attorney Referral,” also on DSS letterhead, dated May 31, 1995, that lists Mother’s address as follows: “Exact Address: unknown Amesbury, MA.” (L-3) There is no evidence on the record stating how DSS acquired the information as to Mother’s address.

FINDINGS AND CONCLUSIONS

State regulations at 603 CMR 28.03(4)(b) provide that the responsible school districts for a student living in a residential school are the district(s) where his or her parents reside. The regulations further provide that DOE may assign a responsible district as the parent’s district “when the [parent’s] residence or history is in dispute…” If a child has been surrendered for adoption (or if a court has terminated parental rights), DOE shall assign responsibility for the child’s education to the last known Massachusetts residence of the parent prior to having parental rights terminated. Id at (4)(g)(2). In this case, I treat the address of the Mother as being in “in dispute” as of the point where Amesbury contested DOE’s assignment of joint responsibility.

Here, the only issue is whether Amesbury has presented enough evidence to invalidate DOE’s assignment; i.e., whether a preponderance of the evidence establishes that Amesbury was not Mother’s last known community of residence before her parental rights were terminated in 1997. Hearing Rules for Special Education Appeals , Rule 9.D; In re: Lowell Public Schools, et al ., 8 MSER 203 (Sherwood, 2002).

Based on a review of the evidence presented, I find that Amesbury has provided sufficient evidence to prevail. The DOE assignment letter lists Mother’s last known address as 12 “B” Street. However, DOE has submitted no information as to what documents it relied on in making its determination or why DOE determined this address to be correct, see 603 CMR 28.03(4)(f).

In fact, there is no “B” street in Amesbury, but there does exist a nearly identically-spelled “D” Street, as well as a residence with the address “12 “D” Street.” The owner of this property has stated unequivocally in a questionnaire, 2 affidavits and a cover letter to Amesbury’s counsel that she is at the property nearly every day, that her family supervises the property closely that her tenants during the period in question were her daughters and two males, and that Mother did not live on the premises as a tenant or as an unauthorized resident. I find this evidence credible, as the various statements are consistent with one another, and are based on the Owners’ personal knowledge. Moreover, the relatively small size of the property (four units), its close proximity to the Owners’ home, and the fact that the Owners’ daughters have lived on the premises support an inference that Mother would not have lived there without Owners’ knowledge.

On the other hand, I do not credit the documents that Lawrence relies on—a Probate Court decree, a DSS request for a CORI check and district attorney referral, and a written statement purporting to be that of Mother—to establish Mother’s residency in Amesbury. There is no evidence that documents from the Probate Court or DSS were written by someone with personal knowledge of Mother. No evidence has been provided as to where the court got its information about Mother’s purported Amesbury address. Neither Lawrence nor DOE proffered additional court documents that might have shed light on Mother’s residency such as records of attempts to serve process, excerpts from Family Service or Probation reports that refer to Mother’s living situation, etc. Similarly, the CORI request from DSS is undated and does not indicate that the DSS employee making the request had personal knowledge of Mother’s address or obtained the listed address from a reliable source. Moreover, there is no additional evidence from DSS records that might have established where Mother lived (such as, for example, logs of social worker visits at a particular location.) Finally, I give no weight to the statement purportedly signed by Mother, as there is no independent evidence of who wrote the statement, or under what circumstances, no verification that the signature is Mother’s or that she had either written or understood the statement.

Lawrence argues that the address information contained in the DSS and court documents referred to above must be considered reliable because, it asserts, DSS was directly involved in providing services to the family and because the court would have carefully considered residency information (presumably for notice purposes) in light of the seriousness of Ch. 210 proceedings. ( Memorandum of the Lawrence Public Schools , pp. 3-4.) Lawrence further argues that while Amesbury may have proven that Mother did not live on “D” Street, it has not thereby shown that she did not live in Amesbury; Mother could have been confused as to her exact address but would not likely have used the correctly spelled town and correct zip code in her own written statement unless she was an actual resident. (Id).

These arguments do not undermine Amesbury’s position. Having shown that Mother did not live at either the non-existent “B” Street address or at the “D” Street locations, which were the only addresses provided, Amesbury should not be required to investigate the entire universe of Amesbury street addresses and prove that Mother lived at none of them, especially in the absence of independent evidence of Mother’s residence in Amesbury. (I note that while Lawrence’s Memorandum asserts, without presenting substantiating facts, that the street listing used by Amesbury is incomplete, it does not suggest other streets on which Mother might have lived.) Additionally, for the reasons stated above, I cannot infer that Mother lived in Amesbury on the basis of the unverified handwritten statement to that effect that Mother supposedly signed in 1994.

Based on the foregoing, I find that Amesbury has established by a preponderance of the evidence that DOE was incorrect in its joint assignment of fiscal and programmatic responsibility to the Amesbury Public Schools.4

ORDER

The Massachusetts Department of Education shall revise its LEA Assignment in this matter to remove responsibility from Amesbury.

____________________ _____________________________

Dated: April 30, 2004
Sara Berman, Hearing Officer


1

It is undisputed that Lawrence was the last known residence of Student’s father and thus has partial responsibility for Student’s placement.


2

“B” is a pseudonym used to designate a street listed on some documents as the one on which Mother last lived in Amesbury. I am using this pseudonym rather than the actual street name in order to protect the anonymity of the Parents and Student., as the actual street name is immaterial to the issues to be decided in this case. As the Findings will discuss, there is no “B” street in Amesbury, but there is a “D” Street that is spelled identically to “B” Street except for the initial letter.


3

I take administrative notice that this is an accurate rendition of the meaning of the document.


4

I do not address the issue of what burden of proof, if any, DOE (and Lawrence) have to defend DOE’s determination, or the related issue of what deference should be given to DOE’s determination, because DOE did not present evidence in response to Amesbury’s challenge, and Lawrence’s evidence was not persuasive.


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