Student v. Agawam Public Schools – BSEA # 12-2829



<br /> Student v. Agawam Public Schools – BSEA # 12-2829<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

In Re: Student v. Agawam Public Schools

BSEA # 12-2829

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

On October 21, 2011, Parents requested a Hearing in the above-referenced matter. Following Agawam Public Schools’ request for postponement of the Hearing received on November 10, 2011, the matter was scheduled for Hearing on the same date. The Hearing was held on December 12, 2011 and January 10, 2012, at Catuogno Court Reporting, 446 Main St., Worcester, Massachusetts. Those present for all or part of the proceedings (in person or via telephone conference call) were:

Student’s mother

Student’s father

Student

Sarah Ornelas, Esq. Parents’/ Student’s Attorney

Ms. S. Personal friend of Mother

Student’s maternal grandfather

Mother’s sister

James Cichetti Real estate broker

Karen Langevin Agawam Police Officer

Peter Smith, Esq. Attorney for Agawam Public Schools

April Rist Director of Special Services, Agawam Public Schools

Patricia Cavanaugh Director of Finances, Agawam Public Schools

Deborah Zwicker Personal friend of William Sapelli

William Sapelli Superintendent of Schools, Agawam Public Schools

The official record of the hearing consists of documents submitted by Parents and marked as exhibits PE-1 through PE-19 and PE-22 through PE-25 with supplements, and those submitted by Agawam Public Schools (Agawam) marked as exhibits SE-1 through SE-8, recorded oral testimony and oral closing arguments. The Parties’ Oral Closing Arguments were made on January 11, 2012 and the record closed on that date.

HEARING ISSUES:

1. Whether Student is a resident of Agawam and therefore entitled to public funding for his placement at Forman School for the period from September 2011 through June 2012, consistent with the last accepted Individual Educational Plan (IEP).

2. Whether Mother is entitled to reimbursement for funding the day portion of Student’s placement for the period from October 2011.

POSITIONS OF THE PARTIES:

Parents’ Position:

Parents states that Student has been placed at Forman School in Connecticut under an accepted IEP. According to Parents, Student’s placement at Forman School has been funded until recently by Agawam, where Student resides with his Mother.

Parents state that they are separated and that in mid-September 2011, looking for a fresh start and to pursue a new job, Father relocated to Georgia with his youngest son. An older sister also decided to relocate with Father and her brother. Mother and Student remained in Agawam where Parents own a house. Parents state that they attempted to sell or rent their Agawam home unsuccessfully and in October 2011 took it off the market. According to Mother, Parents met with Agawam personnel in September 2011 and explained that the younger son would be moving to Georgia but that she and Student would remain in Agawam.

Parents further state that Mother is a flight attendant with “XYZ”1 Airlines which has its base in Atlanta, Georgia. While some people drive to work, Mother states that she flies to work. Due to the nature of her employment, she may be away from home for a day or for weeks at a time, depending on her flight assignment and whether she is flying domestic or international flights. Mother asserts that she has a bed at a “crash pad”2 in Atlanta, and that this is where she usually stays when she is in Georgia.

According to Parents, they learned on October 17, 2011 that Agawam was challenging their status as residents of Agawam and as such, stopped funding Student’s placement in Agawam. They state that they contacted Agawam personnel and presented documentary evidence in support of their allegation that Mother continued to reside in the home in Agawam, to no avail. Parents seek a determination that Student is a resident of Agawam and as such, Agawam is responsible to continue funding Student’s placement at Forman through the end of twelfth grade. Mother also seeks reimbursement of the expenses she incurred (approximately $12,974.70) in covering the portion of Student’s tuition to ensure that Student could continue attending Forman after Agawam stopped funding Student’s placement in October 2011.

Parents also stated that Father was expected to return to Massachusetts in late January 2012. Lastly, Mother takes issue with the fact that a friend of Agawam’s Superintendent, who is not otherwise employed or connected with the school district, was present at the hearing and remained in the room throughout the entire proceeding. It was not until this witness testified mid-way through the second day that Parents learned that the witness was not an employee of Agawam and as such Parents argue that Student’s confidentiality has been breached by Agawam in contravention of applicable law.

Agawam’s Position:

Agawam does not dispute that Student is eligible to receive special education services or that the last agreed upon IEP calls for public funding of Student’s education at Forman School. It further agrees that in the summer of 2011, it entered into a contract with Forman School to fund Student’s placement for the 2011-2012 school year, Student’s twelfth grade. Agawam asserts however, that both Parents moved to Georgia on or about mid-September 2011 and, therefore, it is no longer responsible to fund Student’s private school education as of that date. Agawam states that this responsibility shifted to the Georgia School District.

In making this assertion Agawam relies on information it received from a real estate broker, its own staff’s visits to the home, anonymous information received from Parents’ neighbors, Parents’ property listing of the house for sale/rent, information received from Alpharetta, Georgia School District, and claims of Parents’ lack of candor regarding their marital status. Agawam states that it has pictures and reliable information to show that Parents failed to maintain a home in Agawam and that their house was “non-livable”.

Agawam justifies its actions by asserting that it has a responsibility to ensure that public funds are used appropriately. It intends on obtaining reimbursement from Parents for their “fraudulent” representations regarding residency in Agawam, which Agawam states Parents staged in order to secure public funding for Student’s private placement.

FINDINGS OF FACT:

1. Student is a twelfth grade, eligible special education student who has been receiving services under an IEP since the second grade. He currently receives his education at Forman School in Connecticut as a boarding student (PE-1; Mother). At Forman School, Student is the captain of the football team. He also plays on the hockey and baseball teams. During sports seasons, he does not come home on weekends much (Mother).

2. Student’s IEP, covering the period from January 10, 2011 through January 9, 2012, as amended on May 11, 2011, offers Student day private placement at the Forman School. The IEP Amendment issued on May 11, 2011 continued this placement during Student’s twelfth grade. The Vision Statement in this IEP indicates that Student seeks to be ready to go to college when he graduates from high school. It mentions that Student’s interest in sports motivates him to do well academically. The Team wanted Student to “develop more confidence and perseverance with things he perceived as difficult” (PE-1).

3. On June 27, 2011 April Rist, Interim Director of Special Services in Agawam wrote to the Forman School forwarding a contract under which it agreed to fund Student’s out of district program at the annual rate of $ 48,450.00 which was the then-current day rate approved by the Division of Purchased Services and other applicable regulations through the date on which Agawam withdrew Student. The contract specifies that Student must continue to reside in Agawam as a condition for placement funding by Agawam (PE-2).

4. Parents signed the Boarding Enrollment Agreement for Forman School on September 13, 2011 (PE-25). Under this document they agreed to fund the Boarding portion of Student’s placement at Forman School ( Id .; Mother). Parents were further informed that they would have to pay $ 2,907.30 immediately and $ 1,168.50 by November 1, 2011, for Student’s boarding (PE-25).

5. Student’s parents are separated (Mother). Father, who grew up in Agawam and still has family and friends in the area, had been unemployed for three years until the winter of 2011. Mother has been a flight attendant with XYZ airlines for several years. She has been residing in Agawam over twenty years and has close personal friends there (Mother, S.). Her sister and father reside in other cities in Massachusetts (Mother, Grandfather, Sister).

6. James Cichetti is a real estate agent with Century 21 in Massachusetts. He testified that Parents listed their home in Agawam with him, as a for sale or rent property, on or about March 4, 2011. Between March 4 and October 18, 2011 the home had a lock box in the front door (Cichetti). The property was listed with Century 21 for a total of 270 days and to the best of his knowledge, the property was occupied during the time it was listed (PE-9). Prior to being listed with Century 21 , the property was listed for 172 days with Hometown Associates ( Id. ).

7. On September 6, 2011, Parents met with Patricia Cavanaugh, Director of Finances in Agawam and notified her that Student’s younger sibling was being withdrawn from Agawam, because he was moving with his father to Alphareta, Georgia. An older non-school age sibling also moved with them to Alphareta, Georgia. Parents further notified Ms. Cavanaugh that Mother would remain in Agawam, Massachusetts with Student who was then enrolled at Forman School in Connecticut pursuant to his IEP (Ms. Cavanaugh).

8. Mother testified that prior to Father’s move from Massachusetts to Georgia, she brought Student’s younger sibling down to Georgia and registered him in school. She later helped him transition into his new home in Georgia. When she brought the child to Georgia she stayed with him at the home of a friend and used that address when enrolling Student (Mother).

9. Student’s brother’s Student Contact Form in Georgia lists the same address in Georgia for Father and older sibling while it lists Mother’s address in Agawam, MA (PE-19). The information contained therein is consistent with the information provided by Mother when she first registered her younger child in Georgia. The original application completed by Mother on or about September 2011, lists Mother’s friend’s address (where she was staying when she first brought her younger son) as Student’s (temporary) address and states that said younger child will reside with his father, not with her, in Georgia (PE-19). A second Student Contact Form completed by the school administration staff in Georgia lists both Mother’s and Father’s address to be the home in Georgia (PE-22).

10. On September 13, 2011, Father rented a truck to move his belongings and those of his younger son and daughter to Georgia. The move was scheduled to occur between September 13 and 18, 2011 (PE-23). According to Mother, the rental was for a one-way trip to Georgia (Mother).

11. Mr. Cichetti testified that Parents were attempting to downsize and a colleague called him regarding finding the family a smaller rental property in Agawam. In preparation for renting her property Mother put a deposit on a two-bedroom rental apartment in Agawam (Cichetti).

12. On September 14, 2011, Mother placed a deposit for rental of an apartment in Agawam managed by Koziol Management. On September 22, 2011, Mother informed Mr. Koziol that she no longer wished to rent the apartment and he provided partial reimbursement of her deposit on October 11, 2011 (PE-7).

13. Mr. Cichetti testified that Parents’ home was going to be rented starting on October 1, 2011, and in September 2011, a rental agreement was signed in preparation for the rental. However, when it became known that the potential renter had previous history with housing court, the rental did not go through. In preparation for said rental, the utilities had been changed to the name of the prospective renter, and as such the power was shut off for a short period on or about September 2011. After the rental of the house fell through, Mother decided to forgo the rental apartment and stay in the house (Mother). Mother explained that for financial reasons, Parents could not afford to cover the mortgage on the house in Agawam while paying for a rental apartment in Agawam and another rental in Georgia (Mother). After the utilities were transferred back to Parents’ name, and the electricity was reconnected, portions of the house remained without power. Mother contacted Mr. Cichetti seeking a referral for an electrician to do work to the house (Cichetti).

14. In the fall of 2011, Amy Hopright, an agent in Mr. Cichetti’s office, showed Parents’ property on a couple of occasions. Mr. Cichetti testified that he never told Ms. Hopright what the Parents’ situation was except to tell her that the owners were “motivated to move the property at that time” (Cichetti). In September 2011, Father relocated to Georgia and left some items behind. According to Mr. Cichetti, the home had at that point become “available immediately” a term by which Mr. Cichetti meant approximately four to six weeks on a sale and less for a rental (approximately one week).

15. According to Mr. Cichetti, to his knowledge, Parents’ home has been occupied by Mother, Father or both between March 4, 2011 and October 18, 2011 (Cichetti). On October 18, 2011, Parents stopped the listing on the property. Mr. Cichetti testified that any newspaper listing post October 18, 2011, was due to miscommunication in his office (SE-6; Cichetti). Mr. Cichetti last visited Parents’ house in early October 2011. He testified that at the time he saw a kitchen table set and a couch but did not recall other furnishings, and he did not go through the whole house (Cichetti).

16. Posing as individuals interested in seeing, and potentially purchasing Parents’ home, Deborah Zwicker and Patricia Cavanaugh visited Parents’ home in Agawam on or about October 18, 2011 (SE-8; Cavanaugh, Zwicker).

17. Deborah Zwicker is a personal friend of William P. Sapelli, Superintendent of Schools in Agawam . They have known each other since the fourth grade and have maintained a romantic relationship for the past five years ( Zwicker ). Ms. Zwicker , who lives in New Hampshire, testified that she is always looking for real estate investments and specifically places that she can buy, fix and sell. Other than Parents’ house she had not viewed any other properties in Agawam or elsewhere since March 2011. She viewed Parents’ house in Agawam at the request of Mr. Sapelli who wanted to know whether Mother was living in the house (Ms. Zwicker ).

18. According to Ms. Zwicker, electricity must have been on because she recalled going to the basement and having no trouble seeing all areas viewed clearly. She did not observe any bathroom or kitchen items on top of bathroom and kitchen counters. When she looked behind the first floor bathroom curtain she saw shampoo bottles. She did not open any drawers, kitchen cabinets, the dishwasher or the refrigerator to see if any items were there. She did not observe a washer and dryer in the basement. She did not open any faucets so she did not know whether there was running water in the house. She looked inside the unfinished portion of the basement briefly and saw some items and boxes on shelves, but did not go in that room to look more closely. In the basement she also observed some partially opened boxes with what looked like Christmas decorations on top of a bar, a small television (approximately thirteen (13) inches or so) and some other boxes ( Zwicker ).

19. Ms. Zwicker and Patricia Cavanaugh testified that they did not observe a couch, a large television, a coffee table or side tables in the living room. They both observed a futon in one of the downstairs bedrooms, a twin size bed a side table a lamp, bedding and accessories fit for a boy in an upstairs bedroom and some boy’s clothing in the closet in that room. In the master bedroom they observed what they characterized as more formal and evening attire in Mother’s closet and some boxes, a few sweaters and sweat shirts in Father’s closet. Neither one of these two witnesses opened the linen closet in the master bedroom nor did they open every closet in the house. While Ms. Cavanaugh testified that there was a large mirror and a small rug covering a defect in the entry way near the front door, Ms. Zwicker testified that she did not observe any of those items. Both testified that they saw a large table and chairs in the kitchen but were unclear as to whether it had or did not have a runner (Cavanaugh, Zwicker ).

20. Ms. Cavanaugh stated that she opened the two large cabinets in the kitchen and did not see anything inside. She only opened one small cabinet and found some plastic cups inside but did not open any other cabinets, the dishwasher or the refrigerator. Ms. Cavanaugh did not view the basement (Cavanaugh).

21. Following the visit, Ms. Cavanaugh drafted a statement documenting Ms. Zwicker’s and her impressions of their visit to Parents’ home (PE-8). The document also states Ms. Cavanaugh’s impression that the house was non-livable and that it lacked the basic amenities found in a hotel room. In it, she documents her observation of a large table with six chairs in the kitchen; the lack of items in the first floor bathroom in the cabinet under the sink or in the linen closet

22. Ms. Cavanaugh testified that the house was “non-livable” which she defined as, at minimum, lacking two televisions and one computer (SE-8; Cavanaugh).

23. According to Mother, she owns a laptop computer and her home in Agawam has been furnished with a large television, a sofa, a coffee table and side tables in the living room, a large mirror (and after her father visited a table and a small lamp) in the entry way, a large table and four chairs in the kitchen, a futon in a first floor bedroom, a room decorated for a boy with a twin size bed, a chair, a chest with drawers, and boy’s clothing in the closet3 . This room was decorated for a boy. Mother further testified that there were toothbrushes and other bathroom toiletries in the drawers and bathroom cabinets, food in the refrigerator, dishes, cups and glasses in the dishwasher, food and other items in some of the kitchen cabinets, a tea kettle in the kitchen4 and a runner on the kitchen table, clothing in her closet and in the boys’ closets, curtains in the master bathroom, and other items such as an ironing board in a smaller closet in the master bedroom and some towels in the kitchen. According to Mother, there was a dirt-bike that belongs to Student, as well as sports balls and trash bins in the back of the house. There was patio furniture in the backyard; boxes, a suitcase and bins with numerous items as well as jackets and boots, a ladder and boxes with Christmas decorations in the basement. Mother has a lap-top computer (PE-11).

24. Mother testified that since the house was on the market for a period of time, she kept the house clean, organized and de-cluttered, with few or no items on counter surfaces, so as to appeal to potential buyers/ renters. She also explained that she wears a uniform for work and that she has held jobs that require her to wear uniforms since she was very young, the reason for which she does not own a lot of office like or everyday clothing. When she is at home, she is usually resting in sweats or comfortable clothing (PE-11; Mother).

25. Pictures attached to a Benton Real Estate Company listing for Parents’ home dated September 22, 2011, show an appropriately furnished home, greatly de-cluttered, extremely neat and organized, with minimal or no items over bathroom and kitchen counter surfaces. Pictures of the basement depict a washer and dryer, a bar, workout equipment and living-room furniture along with wall-hangings. Patio furniture and a pool appear in the backyard pictures (PE-12). The couch appearing in the first floor living room and the coffee table appearing in the basement living room appear in the living room pictures taken by Mother and found in PE-11 (see also PE-12).

26. On October 17, 2012, Mr. Sapelli and Ms. April Rist wrote to Forman School informing Forman School that Agawam would no longer continue to fund Student’s placement based upon the result of an investigation conducted by Agawam which provided Agawam information that Parents were no longer living in Massachusetts but rather had moved to Georgia (SE-1; PE-3). A copy of this letter was forwarded to Parents via email on October 19, 2011 (PE-5).

27. On October 18, 2011, Judy Tinsley of the Fulton School in Georgia, wrote to Patricia O’Conner responding to Ms. O’Connor’s address request. The document prepared by the school in Georgia lists the same Georgia address for Mother, Father and the two siblings living in Georgia (SE-2). Mother testified that she did not prepare this document nor did she provide Father’s address as her own address to anyone in the school district in Georgia (Mother).

28. Father wrote to Agawam on October 20, 2011 responding to Agawam’s allegations or “indicia” that Parents no longer lived in Massachusetts which according to Father lacked any documentation or basis. Father, who was living in Georgia at the time explained that Mother, is a flight attendant who ha maintained a residence in Massachusetts for over twenty years. He further explained that Mother retained primary legal custody of Student, and that she continued to live in Agawam. Father reasoned that since a minor’s residence is considered to be with his parent or guardian, Student continued to be a resident of Agawam. Father further volunteered to provide evidence of Mother and Student’s residency in Agawam. Father further requested mediation and an impartial due process hearing5 related to the decision to terminate funding for Student’s placement, and invoked Student’s right to resume and continue his education at Forman pending a decision from his appeal of Agawam’s determination (SE-3; PE-5).

29. As a result of the severe storm impacting the western part of Massachusetts on or about October 29, 2011, Forman School was closed between October 30 and November 7, 2011, approximately. During this time Student stayed at his home in Agawam. He returned to Forman School on November 7, 2011. Except when working, Mother was in the Agawam home with Student (Mother).

30. Agawam requires prove of legal residence by a student’s parent or legal guardian when registering a student. Applicants must submit three forms of proof of such residency, one from each of the three categories. From the first category: copy of the deed or record of most recent mortgage payment; copy of the lease identifying the occupants and most recent rent payment; a legal affidavit from a landlord which identifies the occupants and affirms the rental agreement along with a record of the most recent payment; or a copy of the Section 8 agreement. From category two: a copy of a utility bill (i.e., gas, electric, oil, cable TV or home telephone bill) dated within the previous sixty days. From the third column: a copy of a valid driver’s license or a valid Massachusetts photo identification showing the current Agawam address; a current vehicle registration; a valid passport; a copy of the vehicle excise tax bill, the W-2 form or the property tax bill dated within the past year; or, a payroll stub, a bank or credit card statement or a letter from an approved government agency dated within the past sixty days (PE-4).

31. Mother submitted a copy of her Massachusetts driver’s license (PE-13); Comcast bills dated October 17, November 24, and December 24, 2011 (listing XFINITY TV and Internet charges in the November and December bills) (PE-14); a Verizon bill dated November 3, 2011 (PE-15); a Second Quarter Town of Agawam Real Estate bill for Parents’ property in Agawam due on November 1, 2011 (PE-16); a Travelers Insurance policy refund made out to Mother, two credit card bills and a gas bill for October and November 2011, all addressed to Mother at her home in Agawam (PE-16). Mother also submitted her Motor Vehicle Certificate of Registration effective on March 12, 2011 in Father’s name, registered to the address in Agawam (PE-17).

32. On October 26, 2011, Sara Ornelas, Esq. wrote to Mr. Sapelli regarding Student’s and Mother’s residency issue, and stating that Mother and Student continued to reside in their home in Agawam (SE-4). As proof of Mother’s residency, Attorney Ornelas attached a copy of Mother’s Massachusetts driver’s license, a copy of the Comcast bill dated October 17, 2011, a copy of the Verizon bill dated October 10, 2011, and a copy of a Travelers insurance refund made to mother all addressed to Parent’s home in Agawam (SE-4; PE-13; PE-14; PE-15; PE-16). Attorney Ornelas further demanded that Agawam resume funding Student’s placement at Forman by October 31, 2011.

33. According to Mother, XYZ Airlines has its home base in Atlanta, Georgia. She explained that while some people drive to work, she instead flies from Bradley International Airport (BDL) in Connecticut to Atlanta International Airport (ATL) in Georgia, where her airline’s base-airport is located, and from Atlanta to wherever she is scheduled to fly. She keeps a bed in a “crash pad” in Atlanta with eight (8) other flight attendants (PE-24; Mother).

34. Mother’s flight schedule for the period from September 1, 2011 to January 10, 2012 shows the dates in which Mother was in Georgia, Massachusetts or elsewhere as follows:

September 1 to 3-

September 4 to 6- Massachusetts.

September 6 to 12- Georgia.

September 13 to 14- Massachusetts.

September 15 to 20-

September 21 & 22- Massachusetts.

September 23 to 28- Several states outside Massachusetts (According
to Mother, Student’s older sibling was in the house in Agawam from September 21 to 28).

September 29 & 30-

October 1 to 5- Georgia.

October 5 & 6- Massachusetts.

October 6 to 10-

October 11 & 13- Vacation. On October 13 she flew
from ATL to BDL.

October 13 to 16- Massachusetts. (Mother’s father and sister were
with her at the house from October 14 to 16).

October 16 to 17- Georgia.

October 17 & 19- Mother and Student visited colleges.
(According to Mother, on the evening of October

18, another of Mother’s friend, a relative of Agawam’s Superintendent of Schools, visited Mother in Agawam).

October 19- Mother flew from ATL to BDL.

October 19 & 20- Massachusetts. (According to Mother, Sheila

S., a friend, visited her in Agawam).

October 21 to 22- Mother flew from BDL to ATL.

October 23 & 25- Massachusetts.

October 25 & 27- Georgia.

October 27 & 29- Massachusetts.

October 29 to 30- Georgia returning to Massachusetts on

October 30.

October 30 & 31- Massachusetts.

November 1- Mother flew out of BDL to ATL on this day.

November 1 & 4- Georgia.

November 4 to 6- Mother flew back to Massachusetts (Student was
home with Mother on November 4 and 5).

November 6 to 12- Georgia (working out of ATL).

November 12- Mother flew from ATL to BDL and back to ATL
the same day.

November 12 to –

November 19 to 21- Georgia.

November 21 to 27- Massachusetts (Student was home with Mother
and/ or his two siblings from on or about November 17 to the 27).

November 27 to 30- Georgia.

December 1 to 8- Georgia.

December 8 to 13- Massachusetts.

December 13 to 26- Georgia.

December 26, 2011 to January 4, 2012- Massachusetts. Mother, Student
and the younger sibling were in Agawam for the Holiday break.

January 4 to 9, 2012- Georgia.

January 9 & 10- Massachusetts (PE-10).

35. Mother’s credit card activity shows that between September and early November 2011, there was bank activity with her credit/debit card as follows: in Agawam on September 23, 2011, in Georgia from September 28 through October 3, in Connecticut later on October 3, in Georgia on October 4 and 5, in Massachusetts (including Agawam) on October 5 through 7, in Connecticut on October 10, in Georgia on October 11 to 13, in Massachusetts on October 15 to 17, in Florida between October 17 and 18 (also activity in Georgia on October 18 while Mother was flying back and forth between the two), in Massachusetts and Connecticut between on October 20 and 25 (except for one transaction in Georgia on October 21), in Georgia from October 26 to 28, in Massachusetts on October 29 and October 31, in Georgia and Massachusetts on October 31, November 1 and 2 (including Agawam); in California, New York, Colorado and Georgia on November 2 to 4; Massachusetts and Connecticut on November 4 and 5 (PE-8).

36. Student’s maternal grandfather testified that he had been in Parents’ Agawam house during the weekend of October 14, 15 and 16, 2011, and had stayed overnight. He helped Mother move a table from the basement into the entrance foyer, and provided guidance regarding heat and the upkeep of the house (Maternal grandfather). Mother’s sister also visited and stayed overnight that weekend (Maternal sister).

37. On October 28, 2011, Ms. Cavanaugh and Agawam Police Officer Langevin again visited Parents home but found nobody in the house. They peeked through a window and noticed a teakettle, and salt and pepper shakers in the kitchen, but could see no furniture in the living room. They also asked a neighbor if she had seen Student in the house, to which the neighbor responded affirmatively. According to Ms. Langevin and Ms. Cavanaugh, Student had been seen driving his car (SE-8; Cavanaugh, Langevin).

38. On October 28, 2011, Attorney Peter Smith responded to Attorney Ornelas’ letter stating that Agawam had not “arbitrarily” challenged Parents’ residency in Agawam but that the determination had been made based on Agawam’s belief that Parents had moved. Attorney Smith’s letter further stated that Agawam had pictures of the moving van (SE-7); had documentation from Georgia listing a residence for both parents in Georgia; and that by October 17, 2011, Parents’ house in Agawam was barely furnished (PE-7). The letter also mentioned a listing of the house for immediate rental availability6 (SE-6); and Parents’ failure to mention their marital issues/ separation when they met with Agawam personnel (SE-5; SE-6; SE-7; Cavanaugh). Attorney Smith further stated that as of October 28, according to Agawam, Parents’ house continued to be sparsely furnished with only “a tea kettle and salt and pepper shakers” in the kitchen, and a neighbor had stated that Parents had moved to Georgia. Attorney Smith further stated that Agawam personnel had spoken with personnel at the Department of Elementary and Secondary education who stated that MGL c.71B §5 was not applicable, and instead Agawam could potentially seek reimbursement from Parents under MGL c. 76 §6 (SE-5) Attorney Smith further wrote,

The key issue is where [Student] “actually” resides. IF he truly has and continues to reside in Agawam, then we would agree: Agawam is programmatically and fiscally responsible to implement his Individualized Education Program (“IEP”). If, on the other hand, he is now temporarily staying at [— Agawam] for the special purpose of being considered a student in the Agawam Public Schools, then, pursuant to MGL c76 §6, Agawam may recover tuition from the parents (SE-5).

Agawam also expressed concern that Student who was a minor could be staying alone at the house in Agawam (SE-5; Cavanaugh).

39. On November 23, 2011, Mother issued a check for $17, 000.00 to Forman School to cover a portion of Student’s tuition and boarding expenses (PE-18; Mother).

40. Due to Parents’ difficult financial situation, Father and Student’s siblings moved back to Massachusetts in late January 2012. Mother re-registered the minor child in Agawam in early January 2012. Both Parents will be residing in their current home in Agawam along with all three children (Mother).

CONCLUSIONS OF LAW :

The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act7 (IDEA) and the state special education statute8 . As such, Student is entitled to a free, appropriate public education (FAPE).9 The dispute involves whether Student was a resident of Agawam and whether Agawam was therefore responsible to fund Student’s private placement at Forman School for the period from September 2011 through the end of the school year in 2012 (Student’s twelfth grade). Parents assert that at all times Mother and Student remained as residents of Agawam, an assertion which Agawam disputes. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE.

In general, in Massachusetts, the school district where an eligible student resides is programmatically and financially responsible for said Student’s education. 603 CMR §28.10. Pursuant to 603 CMR §28.10(3)(b) the school district where a minor student’s parent(s) or legal guardian reside bears financial responsibility for said student’s education.

When a student whose IEP requires an out of district placement lives and receives special education services at a special education residential school.

During the relevant periods, Student was a minor. Thus, consistent with acceptable law, as a minor his residency was considered to be the same as his parent/s.

The central dispute between the Parties is whether Mother/ Student are and were residents of Agawam during the relevant periods, and whether Agawam was where they dwell and the place that constitutes

… the center of [their] domestic, social and civic life . George H. and Irene L. Walker Home for children, Inc. v. Town of Franklin , 416 Mass. 291 (1993) citing Dane v. Registrars of Voters of Concord , 374 Mass. 152, 161-162 (1978).

There is little disagreement between the Parties regarding the applicable legal standards. Both Parties rely on 603 CMR §28.10(3) and the precedent established in George H. and Irene L. Walker Home for children, Inc. v. Town of Franklin , 416 Mass. 291 (1993).

I note that Father moved back to Massachusetts in late January 2012 with Student’s siblings. Therefore, there is no question that Agawam is responsible to fund Student’s placement under the last agreed upon IEP from January 2012 through the end of his twelfth grade. Therefore, the period in question covers a portion of the first part of Student’s twelfth grade.

Upon consideration of the evidence, the applicable legal standards and the arguments offered by the Parties, I conclude that Mother and Student have been residents of Agawam during all relevant periods and as such, Agawam is responsible to fund Student’s placement at Forman School.10 My reasoning follows:

The evidence submitted at hearing supports Parents assertions that during the relevant period Mother remained a resident of Agawam where she kept a home in livable conditions for her son, contrary to Agawam’s assertions. Even if both Parents intended on leaving Massachusetts, the fact was that Mother did not abandon her residence in Agawam. Parents may have intended to move to Georgia, but with three children, unable to sell or rent their home in Agawam while having to pay the mortgage and rent a place in Georgia, and considering that Father had been out of a job for three years prior to 2011, the result was that they could not afford to move from the house in Agawam. Mother provided sufficient, valid documentation to support her claim that she continued to reside in Agawam, including her flight logs which show an increase in the amount of travel back and forth from Atlanta during the time in question.

The facts of this case are quite unusual. When considering the unique circumstances of Parents’ employment, financial and marital status against the backdrop of challenging economic times, Parents’ choices albeit difficult, sought to provide the best they could for their children. While Agawam cannot be faulted for seeking to protect the district’s funds, Agawam focused on too narrow a view of the facts, reaching the wrong conclusion. In the end Agawam’s actions only made Parents’ case stronger. I turn to the strengths and flaws of the Parties’ arguments.

As a flight attendant, Mother was convincing that her job requires her to spend days and sometimes weeks away from home. She testified credibly that she needs to stay in the shared crash pad in Atlanta on layovers because her flights are mostly scheduled through Atlanta and she must travel in and out of that city. Agawam is a location not far from Mother’s family in Massachusetts, and a place where after having spent twenty years, she has developed close friendships. Both family and friends visited Mother in Agawam, some having stayed for a few days, in October and November 2011 (Mother, Grandfather, Sister, S.). Agawam was clearly the center of her domestic, civic and social life.

Another point of contention for Agawam was that Mother actually was not keeping a “home” in Agawam. In arguing that she was not, Agawam relied on the statements of a “neighbor”, who turned out to be a family member with whom Parents had a poor relationship and with whom they have been on non-speaking terms for over a year; another neighbor who had incomplete information about the situation, a real estate agent and the observations by Ms. Cavanatugh, Ms. Zwicker and Police Officer Karen Langevin.

Agawam’s allegation that Mother failed to keep a “home” was to a large extent based on the conclusions reached by Ms. Cavanaugh and Ms. Zwicker’s viewing of the house in mid- October 2011. Ms. Cavanaugh’s statement that the house was “non-livable” and that it lacked the basic amenities found in a hotel room, were not persuasive given both her definitions of “non-livable” and of what constituted a home. She based her statement that the house was “non-livable” on the minimal furnishings and her unfounded conclusion that “no items were found in the storage area under the sink or in the linen closet” which she had not seen. Ms. Cavanaugh did not take into account the fact that the house had more than one bathroom, but more importantly neither she nor Ms. Zwicker opened any of the bathroom cabinets, drawers or linen closets where Mother testified they would have found tooth brushes, toothpaste, etc. Similarly neither of them opened the refrigerator, dishwasher or all of the kitchen cabinets to see if items were there. Mother credibly testified that there were food, dishes, glasses and other items in the kitchen, and toiletries, towels and paper goods in the bathroom cabinets, drawers and linen closets.

Furthermore, there were inconsistencies between the statements made by Ms. Zwicker and Ms. Cavanaugh. According to Ms. Cavanaugh, a house lacking a minimum of two televisions and one computer was “a house but not a home” (Cavanaugh). These statements show that Ms. Cavanaugh allowed her objectivity to be clouded by her own misguided conclusions, seriously tarnishing her credibility and reliability as a witness. Ms. Zwicker also stumbled in her testimony especially when questioned about her relationship with Mr. Sapelli and the real reason for viewing Parents’ house.

The evidence supports a finding that Mother was residing in the house and that at all times the home was livable. There is no dispute between the Parties that at all times, Parents house has been furnished with: a large table with six chairs in the kitchen, where at least one cabinet contained drinking glasses; toilet paper, a shower curtain and shampoo in the first floor bathroom (which is the bathroom Mother testified she and Student were using); a twin size bed, chest of drawers, and a chair in Student’s room which was decorated for a boy, along with boy’s clothing and shoes in the closet (a “livable-looking room” according to Ms. Cavanaugh); a futon in a bedroom on the first floor; a small television, mostly dressy woman’s clothing in Mother’s closet; boy’s clothing in another closet; some sweaters, sweatshirts and boxes in father’s closet; a mirror and a small rug near the entrance door; and several boxes, Christmas decorations, a bar, sports clothing/equipment in the basement; and patio furniture. Similarly it had water, electricity, and cable service (PE-8; Cavanaugh, Mother, Zwicker). Notably, according to Ms. Cavanaugh and Officer Langevin, there were “indicia” of someone living in the house on October 28, 2011 (Cavanaugh, Langevin). Regarding the tea kettle observed by the latter, Mother testified that it was hers as she does not drink coffee but instead drinks tea (Mother).

The Parties dispute the presence of the sofa, coffee table, large television, Student’s dirt-bike and other sports equipment in a space behind the house and whether certain items were inside drawers and cabinets in the kitchen, bathrooms and linen closets. Neither Ms. Zwicker nor Ms. Cavanaugh opened any linen closets, bathroom cabinets or kitchen cabinets except that Ms. Cavanaugh testified that she opened one of the large kitchen cabinets and a smaller one. Inside the smaller one she observed plastic cups. Neither opened the refrigerator to see if there was any food, nor the dishwasher to see if there were any dishes, pots or pans there or, for that matter, in any other kitchen cabinet. Ms. Cavanaugh testified that when she peeked through the kitchen window on her second visit in October 2011, she noticed a teakettle and salt and pepper shakers in the kitchen (of which she only had a partial view) which she had not observed during the visit on October 18, 2011 with Ms. Zwicker. I note for the record that Ms. Cavanaugh’s visits to Parents home occurred within approximately ten (10) days of the first visit with the realtor. I further note that Mother owns a laptop computer which she would have presumably taken with her to Georgia. Regarding a washer and dryer, Mother was persuasive that given the nature of her job and the fact that Student resides at Forman School, it made more sense for Father, and the two other children to take the bulk of the better furnishings (including the washer and dryer) as they would be using it constantly in Georgia. Parents’ Agawam house may have lacked some of the luxuries typically found in a home in that price-range in that district, but it was absolutely livable and given Mother’s fierce love for her son (Student) and what was best for him, also offered him a home in which they celebrated his sports’ triumphs, Thanksgiving and Christmas (Mother, Grandfather).

Ms. Cavanaugh testified that one of Parent’s neighbors told her that Student had been seen living in the house, and that Student’s car, which had very dark windows (presumably preventing a view of the driver) had been driven. Ms. Cavanaugh assumed that Student was alone in the house although she conceded that Parents’ neighbor could not confirm who exactly was in the house. She did not see either Mother or Student on her second visit on October 28, 2011. Mother explained that she was in Massachusetts at that time and that Student was also in Agawam with her (SE-8; Cavanaugh, Mother). The Western part of Massachusetts, including Agawam, and parts of Connecticut were hit by a severe snow storm on Saturday October 29, 2011. Thereafter, Forman was closed for a period of time. Mother testified that she was in Massachusetts during part of the time Student was out of school due to the storm and that when she was working Student was under the supervision of a friend or he was at the Agawam house with his friends. The record shows that Student did not go to Georgia and that he was two months short of his eighteenth birthday at the time.

The Superintendent testified that his office received two phone calls from an individual alleging that Parents were moving to Georgia. The caller did not testify at Hearing. At Hearing, Parents learned that the phone calls had been made by Father’s sister-in-law’s mother. Mother and Father’s credible testimony show that these two families are estranged, and have not spoken to each other in over a year. The relationship between them is extremely poor. Parents testified that when the sister in law drives by them she “flips them off”. Parents did not share information regarding Father’s move to Georgia, Parents’ marital status, or Mother’s intention to remain in Agawam with Father’s brother and his family (Father, Mother). Given the lack of communication between them and the volatility of the relationship, there is no credible evidence that the information provided by Father’s brother’s mother-in-law was completely accurate, or that there was no intention by the sister-in-law and her mother to jeopardize Parents.

The statements attributed by Ms. Cavanaugh to Amy Hopright, the young agent who showed her around the house on October 18, 2011, are also not reliable since this agent never met or spoke directly with Parents, and Mr. Cichetti denied that he had provided the agent the information she reportedly provided to Ms. Cavanaugh (Cichetti, Cavanaugh). Furthermore, Ms. Hopright did not testify. Similarly, it is difficult to establish what information was actually shared between Mr. Cichetti and Mr. Sapelli. Their conversations involved Parents’ alleged intentions to fraudulently secure payment for Student’s placement, but Mother did not move away and in the end, the entire family returned to Massachusetts in January 2012.

Since Agawam admits that it does not have any information regarding Mother’s residency post October 28, 2011, the questionable period involves at best a six week period between mid-September and the end of October 2012. Parents have offered plausible credible explanations for their whereabouts and their specific circumstances during that period of time. The weight of the evidence supports their claim, as opposed to the evidence presented by Agawam, which was not persuasive. Accordingly, Agawam is responsible to fund Student’s placement at Forman School.

ORDER:

1. Agawam shall reimburse Mother for her expenses associated with Student’s placement at Forman School consistent with their agreement and Student’s IEP and Agawam’s contract with Forman School.

2. Agawam shall continue funding Student’s placement through the end of the 2011-2012 school year.

By the Hearing Officer,

_______________________________________________

Rosa I. Figueroa

Dated: February 3, 2012


1

“XYZ” has been chosen as a substitute for the airline.


2

A crash pad is an apartment which numerous flight attendants share in cities where they are likely to have a lay-over (Mother).


3

Mother testified that the room depicted in the picture with the boy’s hats and Celtic’s and Patriot’s sports paraphernalia was originally the younger brother’s room. She explained that since Student was a boarding student at Forman School and would only come home on occasion, she decided to give her younger son Student’s larger bed and furniture and left the smaller bed for Student to use when he visited Agawam on break from school (Mother).


4

Mother testified that she drinks tea and not coffee (Mother).


5

On October 25, 2011, Parents wrote to the Hearing Officer requesting that the matter be expedited since Student had been out of school since October 18, 2011, as a result of Agawam’s continued refusal to fund Student’s placement at Forman (PE-6). During a conference call on November 9, 2011, Parents’ attorney notified the BSEA that Student had returned to Forman on November 7 as Mother had covered the costs. The Parties agreed to proceed to Hearing on December 1, 2011, and the expedited issue became moot.


6

This rental listing appeared in the Agawam Advertiser News , October 27, 2011 edition (SE-6).


7

20 USC 1400 et seq .


8

MGL c. 71B.


9

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


10

Agawam also asserted that MGL c. 71B §5 is not applicable . Because I find that Mother and Student for all times relevant to this Decision were residents of Agawam, MGL c. 71B §5, is irrelevant.


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