Lowell Public Schools, Massachusetts Department of Education and Leominster Public Schools – BSEA #03-2223



<br /> Lowell Public Schools, Massachusetts Department of Education and Leominster Public Schools – BSEA #03-2223<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Lowell Public Schools, Massachusetts Department of Education and Leominster Public Schools

BSEA # 03-2223

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on December 15, 2003 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Father

Susan Hitchcock Assistant Superintendent, Leominster Public Schools

Delores Donnelly Property Manager, Lowell Housing Authority

George Rider Private Investigator employed by Lowell Public Schools

John LaPiana Private Investigator employed by Leominster Public Schools

Janice Adie Administrator of Special Education, Lowell Public Schools

Jane Mosher-Canty Attorney for Lowell Public Schools

Regina Tate Attorney for Leominster Public Schools

Debra Comfort Attorney for Mass. Department of Education

The official record of the hearing consists of documents submitted by the Lowell Public Schools (Lowell) and marked as exhibits Lowell-1 through Lowell-13; documents submitted by the Massachusetts Department of Education (DOE) and marked as exhibits DOE-1 through DOE-10; documents submitted by the Leominster Public Schools (Leominster) and marked as exhibit Leominster-1 through Leominister-8; and oral testimony and argument on December 15, 2003. Written arguments were due on or before February 23, 2004 and the record closed on that date.1

A. ISSUES

Is the Lowell Public Schools (Lowell) programmatically and fiscally responsible for Student’s educational services? If not, is Leominster Public Schools (Leominster) programmatically and fiscally responsible for Student’s educational services? If Leominster is responsible, on what date should this responsibility commence?

B. FACTS

1. Evidence relied upon by DOE to determine Father’s residence as Lowell .

An October 25, 2002 letter from Joanne Bastien, LICSW, MSW (Supervisor at the Lowell Area Office of the Mass. Department of Social Services (DSS)) to Ann Silver (LEA Assignment Coordinator at the Mass. Department of Education (DOE)) stated that “[Father] had indicated that he was residing at 65 Summer Street, Lowell with his Grandmother.” The letter further explained that although Grandmother’s affidavit denied that Father lived with her, Ms. Bastien was present during a telephone conversation with Father “[e]arlier this week” in which he indicated that Grandmother had denied he resided with her out of fear of losing her housing. Grandmother resides in public housing for persons who are elderly or have a disability. Exhibit DOE-1.

A September 4, 2002 letter from Kelly Krugh (Resource Coordinator at the DSS Lowell Area Office) to Ann Silver (DOE’s LEA Assignment Coordinator) states that Student’s DSS Case Manager spoke by phone with Father who reported that he was living at 65 Summer Street in Lowell in January 2002, that he had previously stated that he was living in Fitchburg because he periodically stayed with his girlfriend there, that his permanent address was 65 Summer Street in Lowell and that he agreed to sign a notarized statement “attesting to his whereabouts”. Exhibit DOE-2.

A September 4, 2002 affidavit of Father states that currently and on January 14, 2002 (when he states that his parental rights were terminated) he was living at 65 Summer Street in Lowell, and that “[p]eriodically, before and after my rights were terminated, I stayed with my girlfriend in Fitchburg, MA.” Exhibit DOE-3; exhibit Lowell-5; exhibit Leominster-6.

DOE also has entered into evidence three other documents:

· Letter from Attorney Thomas Schiavoni to Ann Silver (of DOE), dated October 25, 2002, stating that Grandmother may have had a motive not to disclose that Father was living with her at 65 Summer Street in Lowell. Exhibit DOE-4.

· Request from DSS to DOE to make assignment of school district, dated February 7, 2001, in which Father’s address, as of November 19, 1999, is listed as 65 Summer Street in Lowell. Exhibit DOE-5.

· Request for clarification of school district assignment from DSS to DOE, dated August 12, 2002. Exhibit DOE-7.

2. Father’s testimony .

Father testified that when his son (Student) was born, Father was living at 5 Ellis Avenue in Lowell. He stated that subsequently, he went to jail, was released in 1998 and then lived with Mother on Washington Street in Lowell. He testified that in 1999, he moved to Florida; and in November or December 2000, he returned from Florida and lived in a furnished apartment in a house owned by Mother’s sister, Dorothy Douglas, at 395 Mechanic Street in Leominster. He explained that he paid Ms. Douglas $395.00 per month for rent.

On cross-examination, it was pointed out that Father’s application for a taxi/limo, dated September 8, 2000, states his residence as 395 Mechanic Street in Leominster. Exhibit Lowell-4. Father then testified that he may have moved from Florida to 395 Mechanic Street in September, rather than November or December, 2000.

Father testified that he lived at 395 Mechanic Street in Leominster for the entire year of 2001. He noted that occasionally he spent nights (during 2001) with his girlfriend in Fitchburg, but he explained that the nights he spent in Fitchburg were only on the weekends, and during this time he continued to maintain his residence (and pay rent) at 395 Mechanic Street.

At times, Father testified as to specific places on specific dates. At other times, Father explained, he has moved from place to place so often that it is not possible to remember precisely what dates he lived at a particular place.

Father testified that he remembered living at 395 Mechanic Street during Christmas 2001 but stated that he was uncertain how much longer he stayed at this address. When pressed with questions, he stated that he “probably” continued to live at 395 Mechanic Street for “several months” after Christmas 2001. He then testified that he remembered sending a money order to Mother in Florida on February 14, 2002 when he was living at 395 Mechanic Street. He stated that he continues to have outstanding telephone bills due from 395 Mechanic Street and that these bills would verify that he made telephone calls from this address in February 2002.

Father testified that he remembers the day that he gave up his rights to his son (January 14, 2002), that he was living at 395 Mechanic Street at the time, and that he drove from 395 Mechanic Street with Dorothy Douglas to the meeting with DSS. Father explained that Ms. Douglas, who served the role of advising him regarding these kinds of issues, told him that he should not agree to give up all rights as parent of Student, but that he nevertheless decided to sign the papers.

On cross-examination, Father testified that Ms. Douglas did not accompany him to the meeting with DSS on January 14, 2002. Instead, he explained that his girlfriend, Gloria, went with him. When asked whether he remembered testifying, a few minutes earlier, that he was accompanied by Ms. Douglas at the meeting, he responded that he did not recall stating that.

Father testified that when he left Leominster, he went to live with his cousin in New Hampshire (NH) for about a month, then moved to another place in NH, and finally to 243 Main Street in Nashua, NH. When asked about a conversation and meeting he had with a DSS employee on September 4, 2002, he explained that at that time, he was living at 243 Main Street in Nashua, NH.

Father testified that at the request of DSS, he met with Sheila Martin (a DSS worker) on September 4, 2003; at the meeting she told him to sign a piece of paper. Father explained that he cannot read, that several lines (but not all) of the piece of paper were read to him, that he was never told that the piece of paper stated that he lived at 65 Summer Street in Lowell, and that if he had been so told, he would not have signed the paper. He stated that he has not lived at 65 Summer Street in Lowell (the address of his Grandmother) since he was 14 years old although he receives “important” mail there.

Father testified that from 243 Main Street in Nashua, he moved to 54 Boylston Street in Lowell where he has been living for approximately one year.

3. Records at Lowell District Court regarding Father’s residence .

The testimony and report of Leominster’s private investigator (John LaPiana of Insight Investigations) indicate that a record search at the Lowell District Court found ten criminal complaints for the time period of 1996 through 2002. (Exhibit Leominister-4 is a copy of these complaints and exhibit Leominster-3 is a summary of the complaints.) Testimony of LaPiana; exhibit Leominster-2.

Criminal complaints at the Lowell District Court which were filed regarding Father reflect the following information:

Date of offense Father’s address on the complaint

4/1/96 189 Middlesex Street, Lowell.

3/24/97 189 Middlesex Street, Lowell

5/29/97 189 Middlesex Street, Lowell

7/11/97 65 Summers [sic] Street, Lowell

8/19/97 65 Summer Street, Apartment # 158, Lowell

8/21/01 317 Nesmith Street, Lowell

10/24/01 65 Summer Street, Apartment # 158, Lowell

2/26/02 395 Mechanic Street, Leominster

4/1/02 395 Mechanic Street, Leominster

10/31/02 243 Main Street, Nashua, NH

Exhibit Leominster-4.

4. Additional evidence regarding Father’s residence in Lowell .

Lowell’s private investigator (George Rider) testified that he was retained by Lowell to locate Father and ascertain his address. A letter from Mr. Rider to Lowell Attorney Jane Mosher-Canty, dated September 30, 2002, indicates that Mr. Rider’s investigation revealed two addresses (317 Nesmith Street, Lowell and 65 Summer Street, Lowell), that a check of 317 Nesmith Street indicated that Father had not lived there “for several years”, and that Mr. Rider spoke with Grandmother (who lives at 65 Summer Street, Apartment # 158) who told Mr. Rider that Father was not living there although he “did stop to see her from time to time.” Finally, the letter notes that on August 25, 2002, Mr. Rider received a telephone call from Father who stated he was not living with Grandmother; during the call, Father would not tell Mr. Rider his current address. Exhibit Lowell-10.

Mr. Rider testified that he obtained an affidavit from Grandmother. Grandmother’s affidavit, dated October 2, 2002, states that she has resided at 65 Summer Street in Lowell for the past thirty years, and for the past twenty years, Father has not resided with her. Exhibit Leominister-7. (A similar affidavit of Grandmother is dated June 26, 2003. Exhibit Lowell-6.) Mr. Rider testified that Grandmother appeared lucid and seemed to understand the content of the affidavit, which he read to her. Mr. Rider also explained that, prior to obtaining the Grandmother’s affidavit, he spoke with her by telephone and she stated that Father had never lived with her since the time when Father was a “little boy”. Testimony of Rider.

A Memorandum from Hayley O’Sullivan (SPED Social Worker) to Nancy Lyons (ETC) dated June 6, 2001, states that Ms. O’Sullivan visited Grandmother at 65 Summer Street who informed her “that she does not know where her son [sic] is residing”. Exhibit Lowell-9.

Dolores Donnelly testified that she is currently employed as a property manager for the Lowell Housing Authority (LHA), that she has responsibility for 399 units of housing, and that she has been familiar with Grandmother for the past twenty years. She stated that Grandmother lives on the 6 th floor of 65 Summer Street in Lowell, which is one of the buildings which Ms. Donnelly manages. Ms. Donnelly explained that, to her knowledge, Grandmother has always lived alone. She explains that it is not unusual for her to learn of a tenant having an unauthorized person living in the unit; typically this is learned from a complaint of a neighbor or as a result of her observing a person with whom she is not familiar. When she observes such a person repeatedly, she inquires of the person and asks for verification that the person has another residence. She explained that she has an opportunity to observe people within the apartment building common areas and occasionally when she visits a unit. Ms. Donnelly testified that she has never received a complaint regarding a person living with Grandmother, nor has she ever observed anyone living with Grandmother. During the Hearing, Father was pointed out to her, and she testified that she did not recognize him as someone whom she had seen before.

The Lowell Housing Authority’s (LHA) Administrative Plan for its Low Rent Public Housing (LRPH) Program states, at page 36, that LHA will investigate allegations concerning the presence of an “unauthorized family member” (defined as any adult not included on the HUD 50058 form who has been residing in the LRPH unit more than thirty consecutive days). If LHA finds that the visitor is using the unit as his current residence or the visitor does not provide evidence of another residence, LHA will terminate the family’s lease. Exhibit Leominister-5.

5. Additional evidence regarding Father’s residence in Leominster .

Lowell’s private investigator (George Rider) testified that on January 15, 2003, he visited Dorothy Douglas at 395 Mechanic Street in Leominster, that Ms. Douglas explained to him that Father had lived with her in the past, but that Ms. Douglas did not state when Father had lived there. On cross-examination, after his memory was refreshed using his own notes, Mr. Rider testified that Ms. Douglas reported to him that Father had lived with her in 2000 and 2001, but had left some time during 2001. Testimony of Rider.

Leominster’s private investigator (John LaPiana of Insight Investigations) and his April 7, 2003 Supplemental Investigative Report, prepared for Leominster’s attorney, state that Mr. LaPiana met with Ms. Dorothy Douglas who told him that she resides and owns property at 395 Mechanic Street in Leominster, and that Father lived at that address for approximately six months before moving out in August 2002. (The Report also stated that Father lived at the Mechanic Street address from February or March of 2000 until August 2000. However, Mr. LaPiana testified that the dates should be listed as 2002. He also explained that Ms. Douglas did not provide the dates of February or March, but rather simply stated to him that Father moved out in August 2002 and had been living there for approximately six months.) The Report further states that Mr. LaPiana did a record search at the Leominster District Court which did not yield any information regarding Father for the years 1999, 2000, 2001 and 2002. Testimony of LaPiana; exhibit Leominster-2.

A document with letterhead of the Leominster License Commission, dated 9/8/00, indicates that Father made application for the “position of Taxi/Limo”, and listed his address as 395 Mechanic Street, Leominster. Exhibit Lowell-4.

Certificate of Registration for Father’s automobile, with an effective date of 12/20/01 and an expiration date of 8/31/03, lists Father’s address as 395 Mechanic Street, Leominster. Exhibit Leominster-4.

A Leominster Police Department Incident Report indicates that Father called the police on 12/19/01 to report a threat, by telephone, from his ex-girlfriend. The report indicates that Father identified his address as 395 Mechanic Street, Leominster. Exhibit Lowell-3.

Susan Hitchcock testified that currently and for the past two years, she has been Leominster’s Assistant Superintendent of Schools and before then was Leominster’s Administrator of Special Education for two years. She stated that she first learned of the present dispute from Leominster’s attorney approximately nine months ago, and that Leominster had no previous knowledge or record of Student.

6. Additional evidence regarding Father’s residence in New Hampshire .

A letter on the stationery of Mile High Real Estate, LLC, in Hollis, NH, from Vatche Manoukian to Jane Mosher-Canty, dated May 17, 2003, states that “to the best of my recollection” Father “was a tenant in my property located at 243-21 Main Street in Nashua, New Hampshire, during the period from July 1 st , 2002 through December 3 rd , 2002”. The letter further explains that Father “was in the process of eviction due to non-payment of rent, him [sic] and his girlfriend escaped town and moved back to Lowell before Court hearing date.” Exhibit Lowell-13.

A Writ of Possession of the Nashua (NH) District Court of Mile High Real Estate, LLC v. Father and Tara McCutcheon, indicates that plaintiff recovered judgement against the defendants for possession of the premises of 243-21 Main Street, Nashua, NH, on 12/9/02. Exhibit Lowell-13.

7. Evidence regarding Mother’s residence .

A July 1, 2002 Juvenile Court Order terminated the legal rights of Mother to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of Student. Exhibit DOE-6.

A Request for Clarification of School District Assignment, dated 8/12/02 and signed by Kelly Krugh of the DSS Lowell Area Office, lists Mother’s current residence as Newport Richey, Florida to which she moved in November 1999. Exhibit DOE-7; exhibit Lowell-1.

A letter from John LaPiana (Insight Investigations) to Attorney Tate, dated May 1, 2003, states that according to his research and investigation, Mother has provided her address of record for the period March 2002 through February 2003 as 12065 Proctor Loop, Newport Richey, FL. Mr. LaPiana confirmed this information in his testimony. Testimony of LaPiana; exhibit Leominster-1.

C. DISCUSSION

1. Introduction and applicable legal standard .

This is a dispute as to whether DOE correctly assigned to Lowell Public Schools (Lowell) the fiscal and programmatic responsibility for Student’s education. Neither Student’s eligibility status, his entitlement to free appropriate public education nor the special education services currently being provided Student are in dispute.

Pursuant to state special education regulations (603 CMR 28.03(4)(f)), the Massachusetts Department of Education (DOE) made an assignment of Lowell as programmatically and fiscally responsible for Student’s educational services. The assignment was made through a letter of September 15, 2002 from Marcia Mittnacht, DOE State Director for Special Education, to Kelly Krugh at the Mass. Department of Social Services (exhibit DOE-9; exhibit Lowell-11) and was confirmed in a subsequent letter from Ms. Mittnacht dated November 5, 2003 (exhibit Lowell-12).

Lowell then appealed this assignment through a hearing request to the BSEA, dated November 18, 2002 and received by the BSEA on November 19, 2002. This case was re-assigned for administrative reasons to the present Hearing Officer on October 10, 2003.

Relevant DOE regulations provide:

The Department shall use the following criteria to assign a city, town or school district responsibility for the provision of special education to a child under this section:

1. The last known Massachusetts residence of the child’s father , mother, or guardian prior to moving from the Commonwealth, dying, surrendering the child for adoption, or having parental rights terminated .

2. When a child’s father and mother are separated or divorced and neither the father nor mother resides in the Commonwealth, the last known residence of the last parent to have lived in Massachusetts.2

Both parents have had their parental rights terminated. Therefore, fiscal and programmatic responsibility of a School District is determined on the basis of the parents’ “last known Massachusetts residence” prior to having their parental rights terminated.

In November 1999, Mother moved from Massachusetts to Florida, where she has continued to reside. Testimony of LaPiana; exhibit DOE-7; exhibit Lowell-1, exhibit Leominster-1. A July 1, 2002 Juvenile Court Order terminated Mother’s legal rights regarding Student. Exhibit DOE-6. The parties agree, and I so find, that on the basis of these facts, Mother’s residence is not relevant for purposes of my determination of School District responsibility because her parental rights were terminated prior to the termination of Father’s parental rights.

The parties further agree, and I so find, that School District responsibility depends solely on Father’s last known residence on January 14, 2002 , the date on which he gave up his parental rights regarding Student. The parties also agree, and I so find, that School District responsibility is appropriately determined on the basis of where Father is actually living at this time, rather than on the basis of his legal residence.3

For these reasons, the central question to be answered in this dispute is what was Father’s last known residence on January 14, 2002.

2. Lowell as Father’s last known residence .

I first consider DOE’s assignment of Lowell as the School District which is programmatically and fiscally responsible for Student’s educational services, and the evidence presented which supports this assignment.

There was no testimony which supports this assignment. The documentary evidence in the record which supports the assignment (and which was relied upon by DOE in making its assignment of Lowell as the responsible School District) is as follows:

· Letter from Joanne Bastien (of DSS) to Ann Silver (of DOE), dated October 25, 2002, stating that Father had indicated that he was residing at 65 Summer Street in Lowell and that “[e]arlier this week,” she was present during a telephone conversation between Father and Sheila Martin (a DSS social worker) when Father indicated that Grandmother had denied that he was residing with her because she was afraid that she would lose her housing. Exhibit DOE-1.

· Letter from Kelly Krugh (of DSS) to Ann Silver (of DOE), dated September 4, 2002, stating that on August 27, 2002, Student’s DSS case manager spoke by telephone with Father, and he told her that in January 2002, he was living at 65 Summer Street in Lowell. Exhibit DOE-2.

· Affidavit of Father, dated September 4, 2002, in which he states that at the time his parental rights were terminated (January 14, 2002) he lived at 65 Summer Street in Lowell. Exhibit DOE-3, exhibit Lowell-5, exhibit Leominster-6.

· Letter from Attorney Thomas Schiavoni to Ann Silver (of DOE), dated October 25, 2002, stating that Grandmother may have had a motive not to disclose that Father was living with her at 65 Summer Street in Lowell. Exhibit DOE-4.

· Request from DSS to DOE to make assignment of school district, dated February 7, 2001, in which Father’s address, from November 19, 1999 forward, is listed as 65 Summer Street in Lowell. Exhibit DOE-5.

· A later request for clarification of school district assignment from DSS to DOE, dated August 12, 2002, which does not include an address for Father. Exhibit DOE-7.

· A chronology of Father’s residence provided by DSS states: “1/02 Father tells DSS Social Worker while at court, that he is living with his girlfriend at 84 Pratt St. 1 st Floor, Fitchburg. Father surrenders his rights at this time.” Exhibit DOE-10.

It is apparent that the last four of these seven documents above provide no probative basis to support DOE’s assignment. Attorney Schiavoni’s letter is simply an argument. Exhibit DOE-4. The DSS request to DOE dated February 7, 2001 is not relevant to the question of where Father lived at a later point in time – that is, January 14, 2002. Exhibit DOE-5. (I also note that the DSS request simply lists Father’s address without including any explanation or other basis for concluding that Father lived in Lowell.) The August 12, 2002 DSS request to DOE does not list Father’s address. Exhibit DOE-7. The chronology of Father’s residence does not support a finding that Lowell is the responsible School District. Exhibit DOE-10.

Each of the first three documents listed above is based on Father’s oral statement to DSS staff and his subsequent affidavit (prepared by DSS staff) that he was living with his Grandmother at 65 Summer Street in Lowell on January 14, 2002. In order to uphold the DOE assignment of responsibility to Lowell, I must conclude that the assertions reflected within these documents that Father resided at 65 Summer Street in Lowell on January 14, 2002 are reliable.

Of the people who signed (or who are otherwise referenced within) these three documents, only Father testified at the evidentiary Hearing. Without the testimony of the DSS staff (who might have substantiated what Father told them regarding his place of residence), the reliability of the documents is dependent upon Father’s testimony.

Father’s unrebutted testimony was (1) that he has not lived at 65 Summer Street in Lowell after he reached the age of 14 years, (2) that he never told DSS staff that he lived there, (3) that his affidavit of September 4, 2002 is not true, (4) that because he cannot read and because the affidavit was not read to him in its entirety, he did not know that the affidavit stated that he lived at 65 Summer Street in Lowell, and (5) that had he known what the affidavit says, he would not have signed it. Testimony of Father.

In other words, Father’s testimony undercuts the entire basis for DOE’s assignment of Lowell as the responsible School District.

It its closing argument, Leominster correctly points out that Father’s testimony was, at times, vague and inconsistent.4 However, this does not lead to the conclusion that his testimony should be entirely discounted.

I have no reason to believe that Father was intentionally misrepresenting his memory of where he lived at any particular time or that he had an incentive to fabricate the truth. I find that Father’s memory is not sufficiently reliable for his testimony to determine, by itself, precisely what may have occurred on a particular date. However, his testimony has sufficient credibility and reliability to help determine where he lived during the course of a period of several months. I therefore use his testimony to support or rebut other evidence for this purpose.

In order to obtain a finding that Lowell was Father’s residence at the time in question, Leominster’s attorney would have me discount entirely Father’s testimony, but find credible his earlier affidavit. There is no evidentiary basis upon which I might determine that Father’s earlier statements are more credible than his testimony at the Hearing. If I were to determine that his testimony should be entirely discounted, it would only be as a result of a conclusion that Father simply cannot be trusted to tell the truth, a conclusion that would equally invalidate Father’s affidavit and reported earlier statements to the DSS workers. Under this scenario, the entire basis of DOE’s assignment of Lowell as the responsible school district would again be undercut.

I also note that, in general, the testimony of a witness under oath is given greater weight than a previous oral statement which has been attributed to him or a written statement which, in this case, he apparently signed but was not able to read.

I conclude that Father’s testimony regarding Lowell was sufficiently credible and reliable to rebut effectively his earlier affidavit and the reported statements of DSS workers as to what Father told them.

There is additional reason not to credit Father’s affidavit and the statements he allegedly made to DSS workers.

A letter from Mile High Real Estate, dated May 17, 2003, and signed by Vatche Manoukian, states that “to the best of my recollection” Father was residing in property of Mile High Real Estate at 243-21 Main Street, Nashua, NH, from July 1, 2002 through December 3, 2002. Exhibit Lowell-13. This letter was substantiated by a writ of possession of the Nashua (NH) District Court against Father, recovering possession of the premises at 243-21 Main Street on December 9, 2002. Exhibit Lowell-13. This provides credible evidence that on September 4, 2002 and October 25, 2002, Father was living in New Hampshire.

This evidence contradicts Father’s affidavit, relied upon by DOE, in which Father states that he is “currently residing” at 65 Summer Street in Lowell. The affidavit is dated September 4, 2002. Exhibit DOE-3, exhibit Lowell-5 and exhibit Leominster-6. Similarly, this evidence contradicts statements that DSS workers reported (and DOE relied upon) that Father told them that on October 25, 2002 he was living in Lowell at 65 Summer Street. Exhibit DOE-2.

For all of these reasons, I find that the three documents relied upon by DOE to establish residence in Lowell are not reliable.

Although there is no other evidence which supports DOE’s assignment to Lowell, there is evidence which further undercuts any determination that Lowell should be responsible. The only basis for assignment of Lowell as the responsible school district is that Father was allegedly living with his Grandmother at 65 Summer Street in Lowell.

Grandmother’s two affidavits state that Father has not lived with her at 65 Summer Street during the past twenty years. Exhibits Lowell-6, Leominster-7.

All those people who spoke with Grandmother reported that she said that Father was not living with her. Testimony of Rider, LaPiana; exhibit Lowell-10. Also, Detective Rider, who obtained one of the affidavits, testified that Grandmother seemed lucid and apparently understood the content of the affidavit when she signed it.5

Grandmother’s affidavits, without an opportunity for live testimony and cross-examination, are given limited weight. Nevertheless, they provide further support for the conclusion that Lowell should not be found to be the responsible school district.6

I conclude that there is no credible evidence in support of DOE’s assignment of fiscal and programmatic responsibility to Lowell, and it should be reversed.

3. Fitchburg as Father’s last known address .

As explained above, the essential question to be answered is Father’s last known address on January 14, 2002. I have determined above that there is no credible evidence to support the conclusion that Lowell was Father’s last known address as of this date. The only two other cities or towns which arguably would be Father’s last known address on January 14, 2002 are Fitchburg and Leominster. I first consider Fitchburg.

Father occasionally stayed with his girlfriend in Fitchburg. However, the uncontroverted evidence is that Father lived with his girlfriend in Fitchburg only occasionally in 2001 and only then during the weekends, and that during that time, he maintained his residence (and paid rent) at 395 Mechanic Street in Leominster. Testimony of Father.

Exhibit DOE-10 is a chronology of Father’s residence, which indicates that Father’s residence is Fitchburg. However, this exhibit is on a plain piece of paper with no indication of who prepared it. There was no testimony to explain it. Accordingly, it has no probative value.

None of the parties argues that Fitchburg is Father’s last know residence on January 14, 2002 or that Fitchburg should otherwise be considered the responsible School District.

For these reasons, I do not further consider Fitchburg as Father’s last known residence.

4. Leominster as Father’s last known address .

I now consider whether there is sufficient evidence to support a determination that Leominster was Father’s last known address as of January 14, 2002.

The parties do not dispute that Father resided at 395 Mechanic Street in Leominster for certain periods of time. The only question in dispute is when, precisely, he lived there.

I first review all of the documentary evidence relative to the time period December 2001 through April 2002, other than those documents which have already been discussed and discounted as not being reliable or as having no probative value (see parts C2 and C3 of this Decision). These documents are as follows:

· A Leominster Police Department Incident Report indicates that Father called the police on 12/19/01 to report a threat, by telephone, from his ex-girlfriend. The report indicates that Father identified his address as 395 Mechanic Street, Leominster. Exhibit Lowell-3.

· Certificate of Registration for Father’s automobile, with an effective date of 12/20/01, lists Father’s address as 395 Mechanic Street, Leominster. Exhibit Leominster-4.

· Criminal complaints at the Lowell District Court were filed regarding Father on 2/26/02 and 4/1/02. Both complaints list Father’s address as 395 Mechanic Street, Leominster. Exhibit Leominster-4.

This documentary evidence consistently places Father as living at 395 Mechanic Street in Leominster during this time period.

I next consider Father’s testimony. For the reasons explained above in part C2 of this Decision, Father’s testimony was not entirely reliable but may nevertheless serve to support or rebut other evidence.

In his testimony, Father stated clearly that he was living at 395 Mechanic Street in Leominster from December 25, 2001 through February 14, 2002. He explained his reasons for testifying that he was living at 395 Mechanic Street during this time period – he had a clear memory of being there during Christmas 2001 and New Year’s 2002, that he also had a clear memory of sending a money order to Mother on February 14, 2002 while he was living at 395 Mechanic Street, and that he was living at 395 Mechanic Street continuously at these times. I give Father’s testimony only limited weight, but it nevertheless corroborates the documentary evidence, discussed above, which places Father in Leominster during this same time period.7

There is no contrary evidence, other than what has already been discussed in part C2 and C3 above and determined not to be reliable or to have probative value.

I conclude that all of the evidence, upon which I may rely, supports the conclusion that Leominster was Father’s last known residence on January 14, 2002.

5. Effective date of Leominster’s responsibility .

Pursuant to this Decision, Leominster is determined to have programmatic and fiscal responsibility for Student’s education. There remains to be determined the effective date of this responsibility.

In Lowell’s closing argument, Lowell makes the following request for relief:

Lowell also asks that the Hearing Officer find that Leominster Public Schools is fiscally responsible for the student as of the notification of this challenge [presumably November 19, 2002 when Lowell’s hearing request was received by the BSEA]. In the alternative Lowell asks that the Hearing Officer find Leominster fiscally responsible for all educational costs and all other related costs for the student beginning on July 1, 2003. We also ask that the Hearing Officer order that the Town of Leominster reimburse Lowell for any costs incurred by Lowell in funding the student’s placement from July 1, 2003.8

In its closing argument, Lowell did not provide any explanation or argument to support these dates. Leominster did not address this issue in its closing argument. DOE did not submit a closing argument.

Without this issue being further considered and argued by the parties, I decline to address it. Through the Order below, the parties are given additional time to brief this issue. I will retain jurisdiction in order to resolve this remaining matter.

ORDER

DOE’s assignment of programmatic and fiscal responsibility to the Lowell Public Schools is reversed. Leominster Public Schools has programmatic and fiscal responsibility for Student’s education.

No later than 5:00 PM on March 29, 2004 , the parties shall file with the Hearing Officer further written argument addressing the additional relief requested by Lowell (discussed above in part C5 of this Decision) unless the parties notify the Hearing Officer that they have been able to resolve this matter informally among themselves. Jurisdiction is retained until this remaining issue is resolved either informally by the parties or through a decision by the BSEA.

By the Hearing Officer,

William Crane

Dated: March 1, 2004

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

As agreed by the parties, written arguments were initially due on January 16, 2004; the parties jointly requested postponement of the deadline to February 2, 2004 and the postponement was allowed; Leominster requested further postponement to February 17, 2004 because tapes of the BSEA hearing sent to Leominster were blank on one side and the postponement was allowed; Lowell requested further postponement to February 23, 2004 because its written argument was lost due to a computer malfunction and this postponement was allowed but only as to Lowell. Leominster submitted its written argument to the Hearing Officer and DOE on February 17, 2004 and to Lowell on February 23, 2004. Leominster submitted its written argument on February 23, 2004. DOE chose not to submit a written argument.


2

603 CMR 28.03(4)(g) (emphasis supplied).


3

There is persuasive legal authority that what is determinative is identification of the city or town where a parent is actually living, rather than the parent’s legal residence. See MGL c. 71B, s. 5 (adjusts fiscal responsibility of a city or town for a student’s special education if the parent “moves to a different school district”); MGL c. 76, s. 5 (child has the right to attend the public schools in the city or town where he or she “actually resides”); Doe v. Anrig , 1986-87 EHLR DEC 558:278, No. 81-1731-T (U.S. Dist. Ct., D.Mass. January 15, 1987) (“If the legislature or the [Massachusetts] Department of Education had intended legal residence, rather than physical presence, to be determinative, they would have said so.”); In Re: Georgetown Public Schools, Beverly Public Schools, Salem Public Schools, and Massachusetts Department of Education ., BSEA # 02-1798, 8 MSER 95, 99-100 (MA SEA April 5, 2002) (school district responsibility determined on the basis of where Mother and Father are actually living during the time period in question, rather than their legal residence), aff’d in City of Salem v. Bureau of Special Education Appeals , Superior Court CA No. 02-0861-D (October 30, 2003); In Re: Andrew M ., BSEA # 96-3249, 2 MSER 133 (MA SEA July 5, 1996) (to read domicile into the federal statute would be inconsistent with statute’s plain meaning); In Re: Wakefield Public Schools , BSEA # 94-0744 (MA SEA October 15, 1993) (distinguishing actual residency from legal residency or domicile).


4

Father was sometimes unsure where he lived on a particular date. He explained that he has moved so many times that it is difficult to keep track. Also, during the course of his testimony, his recollection seemed to change, for example, with respect to whom he was with or what happened on a particular date. See part B2 of this Decision, below.


5

Leominster points out that Grandmother may have had a reason not to tell the truth because admission that Father was living with her could lead to her eviction. Exhibit Leominister-5. I note, however, that it could just as easily be argued that concern regarding possible eviction would make it likely that Grandmother would not have allowed Father to live with her.


6

Additional evidence which tends to further undercut DOE’s assignment (although the evidence is of less probative value than Grandmother’s affidavit) is the testimony of the property manager (Ms. Donnelly) of 65 Summer Street in Lowell. See part B4 of this Decision, above.


7

There was additional testimony from Lowell’s and Leominster’s private detectives regarding Father’s living at 395 Mechanic Street. Both investigators visited 395 Mechanic Street and spoke to Ms. Douglas. However, the investigators received contradictory information regarding Father’s living there. Lowell’s private investigator (Mr. Rider) learned from Ms. Douglas during a January 15, 2003 visit to her house that Father had lived with her in 2000 and 2001, but had left some time during 2001. Testimony of Rider. Leominster’s private investigator (Mr. LaPiana) learned from Ms. Douglas during a visit to her home that Father had lived with her for approximately six months before moving out in August 2002. Testimony of LaPiana. Because these reports of what Ms. Douglas stated are contradictory, I disregard them.


8

Leominster’s closing argument, page 9.


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