COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Amherst-Pelham Regional School District
BSEA# 03-1839
DECISION ON AMHERST-PELHAM REGIONAL SCHOOL DISTRICT’S
MOTION TO DISMISS THIS APPEAL
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
PROCEDURAL NOTE
By agreement of the Parties during a pre-hearing conference call on December 10, 2002, this DECISION is hereby rendered without the taking of oral testimony and without oral arguments, but rather upon all of the written materials filed by the Parties and several oral clarifications made by the attorneys during the December 10, 2002 conference call. Therefore, this DECISION is based upon all of the written documentation/exhibits/affidavits/correspondence submitted by the Parties; the written arguments submitted by the Parties; and the several oral clarifications referenced above.
HISTORY/STATEMENT OF FACTS OF THE CASE
Student has had a history of abandonment followed by severe abuse. She was removed from her biological family at age 2 ½ and lived in foster homes until age 6. She came to live with Student’s current family in Amherst, as a foster child, in 1994 when she was 6 years and she was enrolled in the Amherst Public Schools. When Student was legally freed for adoption she was adopted by Student’s family in 1996 at age 9. Student attended grades 1 through 6 within an Amherst elementary school. Student attended grades 7 & 8 at the Amherst-Pelham Regional Middle School. From grades 7 through 12 Amherst is a member of the Amherst-Pelham Regional School District (Amherst). Through grades 1 through 8 Student was a regular education student in Amherst. (See P-1, 4.)
In early 2002, her 8 th grade year, Student began to experience emotional problems as a result of her secret contact with her biological family. Behavioral manifestations included uncontrollable behaviors, explosive anger, suicidal ideation, threats of violence against herself and family, and cutting behaviors. A psychiatric evaluation by Dr. McCarthy-Lenz in February 2002 resulted in a diagnosis of Depressive Disorder, NOS and an Anxiety Disorder, NOS and antidepressant medication was initiated. In August 2002 Student’s psychiatrist informed Parents that Student was too ill to return to return to school. Parents requested that Amherst perform a team evaluation. Amherst performed psychological and educational testing in late September 2002. Psychiatrist
McCarthy-Lenz also wrote a letter on September 26, 2002 noting that Student had been under her care since February 2002; that Student was now diagnosed with a bipolar disorder for which she was receiving medication; that she had now prescribed an anti-psychotic medication to address Student’s current psychiatric difficulties; and that Student was currently in an agitated, depressed and paranoid state that affected every aspect of Student’s daily life. Dr. McCarthy-Lenz opined that given Student’s specific constellation of needs, as she perceived them, that Student could not return to either a public high school or a self contained public school environment; and that daily tutoring would be fruitless and perhaps unsafe for Student and others. Dr. McCarthy-Lenz went on to describe the type of placement that Student required. Based upon Dr. McCarthy-Lenz’s recommendations, Parents did not return Student to Amherst in the fall of 2002, where Student would have entered Amherst-Pelham Regional High School. (See P-1, 2, 4; School’s Facts; S-1.)
A team meeting was held on October 8, 2002 and on October 9, 2002 Amherst sent Parents a notice that Student was not eligible for special education because she had made effective educational progress based upon current educational testing and information from eighth grade; and that there was no current information available about her inability to a make progress in the 2002-2003 school year since Student was not attending school.1 Despite the finding of special education ineligibility, Amherst offered Student home tutoring or placement at a specialized placement at the South Amherst Campus, which Parents rejected because Student’s psychiatrist believed that such placements were inappropriate. (See School Facts; S-1, 5; P-4).
Parents filed this BSEA appeal on October 16, 2002 and hearing date was scheduled for November 6, 2002. Amherst requested a postponement. A pre-hearing conference call was held on October 29, 2002 with a pre-hearing conference scheduled for November 7, 2002 and a hearing scheduled for December 12, 2002. On November 7, 2002 the Parties filed a joint request for postponement of the pre-hearing conference because Student was entering a partial hospitalization day program at Baystate Medical Center (P-3, 4) and new information would be gathered to assist with a determination of Student’s eligibility for special education services. On December 3, 2002 Amherst filed a Motion To Join The Department Of Mental Health (DMH) As A Necessary Party To This Appeal. On December 4, 2002 Amherst filed a Motion To Dismiss This Appeal on the basis that Student is not a resident of Amherst or of Massachusetts, with accompanying documentation. On December 5, 2002 Parents filed Parents’ Opposition to Amherst’s Motion To Join DMH As A Necessary Party To This Appeal. On December 6, 2002 Parents filed Parents’ Opposition To Amherst’s Motion To Dismiss And Cross Motion For Summary Judgement, with accompanying documentation. Also on December 6, 2002, Amherst found Student eligible for special education but recommended an extended evaluation/further assessment before developing an Individual Education Plan (IEP). (See Affidavit of David Slovin with attachments.) On December 10, 2002 Amherst filed its Response To Parents’ Opposition To Amherst’s Motion To Dismiss And To Parents’ Cross Motion For Summary Judgment, supplemented by written argument and affidavits/documents filed on December 16, 2002.
By agreement of the parties at the conference call of December 10, 2002, Amherst’s Motion To Join DMH and Parents’ Cross Motion For Summary Judgment are being held in abeyance until after a Decision on Amherst’s Motion To Dismiss is rendered.
SCHOOL’S ARGUMENT
Amherst moves to dismiss Parents’ Appeal on the ground that Student is no longer a resident of Amherst or of Massachusetts but that she resides with a relative in New Jersey. Under such circumstances, Amherst argues that it is not responsible for providing any educational services. Amherst cites state law and four BSEA decisions that actual residency and not domicile is the relevant inquiry when making determinations of the responsibilities of cities and towns for the education of both regular education and special education students.
PARENTS’ ARGUMENT
Parents contend that Student has been and continues to be a resident of Amherst since 1994 and that she attended public schools in Amherst through the spring of 2002 without interruption. Parents contend that while they are attempting to find appropriate services for Student, she is living part time with relatives in New Jersey. Parents contend that Student, who has lived in Amherst for 8 years and continues to reside there, simply does not lose her residency because of temporary, part time absences. Further, Parents contend that Student lives with her family and/or in Amherst as much or more time than she is in New Jersey.
FACTS PERTAINING TO RESIDENCY
1. Student’s psychiatrist recommended to Student’s family that, to keep Student as stable as possible, Student should not stay in their home for extended periods while a residential program was being identified for her. Such recommendation was based upon Student’s ongoing identity crisis involving her biological family; her membership within Student’s family; and threatening statements Student has made (S-3).
2. Student visits her aunt’s family in New Jersey. She has not made any permanent move there. She returns to Amherst regularly. In September 2002 she was with her family and resided in Amherst on the following dates: September 1, 2, 3, 18, 19, 20, 21, 22, 23, 28, 29 and 30. October 2002 and November 2002 had similar patterns (S-3). Additionally, in November 2002, Student attended the Partial Hospitalization Program at Baystate Medical Center in Springfield, MA (Baystate) for 9 days (S-3) from November 13, 2002 until November 22, 2002 (P-3). This Baystate program is a day program, during which time Student lived at home in Amherst with Parents (Clarification of Parents’ Counsel, 12/10/02; Parents Written Argument).
3. Since the fall of 2002 Student has stayed periodically with her father’s sister and sister’s family in New Jersey so that she would be supervised during the day, since both Student’s father and mother are public school teachers; and to continue to try to alleviate the stress on Student and Student’s family while the appropriate special education program was identified for her (P-4).
4. Student is not enrolled in school in New Jersey and has never attended school in New Jersey (Clarification of Parents’ Counsel, 12/10/02; Parents’ Written Argument).
FINDINGS AND CONCLUSIONS
State statutes and regulations governing the responsibility of cities and towns for educating children in Massachusetts uniformly mandate residency as the critical criterion for determining such responsibility both for regular education students (M.G.L. c.76 s.5) and special education students (M.G.L. c.71B s.3 and s.5; 603 CMR 28.03 (4). Therefore, actual residency and not domicile is the crucial factor for determining which school system is or is not responsible for educating Student.
Amherst has cited four BSEA Decisions to support its contention that Student is not a resident of Amherst but of New Jersey – Peter B. v. Duxbury Public Schools , BSEA #88-1188 (1988); Andrew M. v. Beverly Public Schools , 2 MSER 133 (1996); In re: Barnstable Public Schools , BSEA # 00-0437 (1999); and In re: Agawam Public School , 6 MSER 1 (2002). I find that the facts of the instant case are not even remotely similar to the fact patterns in the above-cited cases.
In Duxbury , the Hearing Officer granted Motion to Dismiss even through the father continued to reside in the family home in Duxbury, where the mother, student and his sister resided in Rockport where the student ostensibly attended a private special education school near Rockport and the student’s sister attended the Rockport Public Schools. In Barnstable , the Hearing Officer granted Barnstable’s Motion for Summary Judgment even though the father and brother continued to reside in Barnstable, where the mother and Student resided in Carlisle so that Student could attend a private special education program in Salem where he had been unilaterally placed by his parents. In Beverly , the Hearing Officer found Beverly not legally responsible for the provision of special education services to the student where the father resided in the family home of Beverly but the student, his mother and his sister resided in Los Angeles, California so that the student could attend the LOVASS program at UCLA where he had been unilaterally placed by his parents a year earlier and where he would remain for at least another year. In Agawam, the Hearing Officer ruled that Student was a resident of Agawam where she had lived with her grandparents for 3 years, even though her mother, who had legal custody and whom Student visited, lived in West Springfield.
In all of the above cited cases, the students’ actual residences were clearly established and were either for long term durations or for extended periods of time so that such students could attend schools or programs that they could not attend if they continued to reside in their prior residences. None of the fact patterns in the above-cited cases is present in the instant case.
In the instant case I find that Student’s visits for temporary periods in New Jersey have not at all established New Jersey as her residence; that such visits have not been of long term duration; and that such periods of time have not been extended periods of time so that Student could attend a school or program in New Jersey.2 The facts clearly demonstrate that Student is not enrolled in any school in New Jersey. (See Residency Fact ¶ 4.)
I conclude that the facts demonstrate that while Student has visited and/or spent temporary periods with her aunt in New Jersey over the last several months, she has returned frequently to Amherst; has spent significant periods of time in Amherst; and continues to reside with her family in Amherst. (See Residency Facts ¶ 2.) Based upon the totality of evidence presented, I conclude that periodic visits to New Jersey over the last several months have resulted from her emotional condition, exacerbated by the dispute between Parents and Amherst over whether Student is eligible for special education and what is the appropriate placement for her. (See P-1, 2, 3, 4; S-1, 2, 3; Residency Facts ¶ 1,3.)
I find nothing in the evidence presented that demonstrates that Student no longer resides in Amherst. Therefore Amherst’s Motion To Dismiss This Appeal is DENIED .
By the Hearing Officer,
Raymond Oliver
Dated: January 21, 2003
Interestingly, Amherst’s psychologist who wrote the psychological report of Student, made a recommendation in her report that Student was eligible for special education because of her social/emotional disorder; that Student was not yet available for learning; and that due to her psychosocial factors it was unlikely that Student would be able to perform in a large high school. (See P-1.)
2
I note that six of the days in September 2002 that Student spent at home with her family in Amherst were weekdays i.e., school days and not weekends .