C.A. No. PC-2019-5968
ATTORNEYS: For Plaintiff: Neil P. Galvin, Esq. For Defendant: Michael Coleman, Esq. Patricia M. Hessler, Esq.
DECISION VOGEL , J. Newport School Committee (NSC or Plaintiff) brings this appeal from an April 26, 2019 decision and order (the Decision) of the Rhode Island Commissioner of Education (the Commissioner) ordering that NSC reimburse the Rhode Island Department of Children, Youth and Families (DCYF) for the special-education costs of placing Student P. Doe (Student Doe) at the Hillcrest Educational Center (Hillcrest) Fernbrook program in Pittsfield, Massachusetts. NSC argues that the Commissioner's Decision was arbitrary and capricious because he relied on questionable, insufficient evidence to determine that Student Doe's mother resided in Newport, Rhode Island at the time the Rhode Island Family Court terminated her parental rights. In opposition, DCYF and the Rhode Island Department of Education (RIDE) contend that there is competent evidence in the record to support the Commissioner's findings. For the foregoing reasons, the Court grants NSC's appeal and reverses the Decision of the Commissioner. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 42-35-15.
The Court refers to the child as P. Doe to protect his privacy.
Facts and Travel
Student Doe is a fourteen-year-old child with a disability such that he requires special education services at an out-of-state residential facility. (Decision at 4.) Student Doe entered DCYF custody on February 18, 2014. Id. at 3. Since taking custody of Student Doe, DCYF placed him at various facilities including Providence public schools, St. Mary's Home for Children in North Providence, and Chariho's Alternative Learning Academy. Id. at 4; see also Pl. Ex. 6, Enrollment History for Student Doe. Notably, Student Doe has had no contact with the Newport education system: DCYF never placed Student Doe at any facility in the City of Newport and never enrolled Student Doe in any educational facility in that municipality. (Pl. Ex. 6.)
Student Doe was born on September 24, 2005. Id. RIDE enrollment records indicate that he was enrolled in the Providence public school system continuously from 2010 until October 2017, when he lived for a time at a foster home in the Chariho Regional School district. He then briefly enrolled in the Chariho Alternative Learning Academy in the Chariho System. Id.
Student Doe's father has had no contact with the child since 2008 and had abandoned or deserted Student Doe long before December 16, 2015, when the Family Court terminated his parental rights. (DCYF Hearing Ex. 1, Termination of Parental Rights Decree, Dec. 16, 2015.) At the time that Student Doe entered DCYF custody, his mother was his custodial parent. (Decision at 3.) Accordingly, the father's residence or last known address is of no consequence to the Court's determination of issues in this controversy. Student Doe's mother was served on July 13, 2015 at her residence in Providence with a summons providing notice of an upcoming hearing on a Petition to Terminate Parental Rights. (Pl. Ex. 2, Return of Service Summons of Termination of Parental Rights Decree, July 9, 2015.)
The hearing date on the summons—July 29, 2015—does not correspond with the date when the parental rights of either of Student Doe's parents were terminated. The record does not include any evidence as to when and if a summons was served upon Ms. Doe advising her of the November 21, 2016 hearing where her rights were terminated.
DCYF prepares and maintains the Rhode Island Children's Information System (RICHIST), a computerized database of records relating to DCYF work with children and families. This database includes entries listing the so-called "primary residence" of Student Doe's mother over a period of nineteen years, beginning in 1997. (Pl. Ex. 3, List of Primary Residences of Student Doe's Mother.) A final entry dated April 6, 2016 identifies her primary residence as 90 Girard Avenue, Newport, but includes a notation that the address is the "Mother's residence." Id. at 1. It is undisputed that the "Mother's residence" notation refers to Student Doe's grandmother, not his mother, and that the 90 Girard Avenue address in Newport was in fact the grandmother's residence. (RIDE Hearing Transcript (Tr.), 61:14-17, Mar. 8, 2019.)
The other thirty-three entries, covering almost two decades, list Ms. Doe's "primary residence" as various locations, mostly in Providence County with a significant number of them in the City of Providence. (Pl. Ex. 3 at 1-6.) Following the birth of Student Doe, out of the thirty-one entries listed, fifteen identified her as residing in Providence at one of nine different addresses and one period of homelessness in the city. Id. One earlier entry does identify her residence as 90 Girard Avenue for a seven-month period from October 2013 to May 2014. Id. at 2. However, three subsequent entries list her as a Providence County resident, two of which were in the City of Providence. Id. All entries except the final address list two dates—presumably, the start and end dates for each location. The Newport listing from April 6, 2016 does not include a second date; the space for that date, presumably the field for the move-out date, is listed as "00/00/0000." Id. at 1.
A separate RICHIST entry lists Ms. Doe's address as 90 Girard Avenue with dates listed as spanning August 10, 2007 to April 7, 2017. (DCYF Hearing Ex. 9.) DCYF presented testimony that this document lists the date that DCYF had an open file for Ms. Doe and her last updated residence. (Tr. at 53:19-56:5.) However, that testimony was not based upon personal knowledge and was inconsistent with testimony from the same witness that the end date would have coincided with the termination of Ms. Doe's parental rights, November 21, 2016. It is unclear why DCYF would have made any effort to identify Ms. Doe's primary residence almost five months after her parental rights were terminated.
The Family Court terminated the parental rights of Student Doe's mother on November 21, 2016. (Tr. at 18:13-20; DCYF Hearing Ex. 2, Termination of Parental Rights Decree, Nov. 21, 2016.) The record does not specify when, where, or if Ms. Doe was served with a summons notifying her of the hearing date. (Decision at 12.) RICHIST does not include any other address for the approximately seven-month period from the April 6, 2016 entry to the November 21, 2016 termination of parental rights date. (Pl. Ex. 3 at 1.)
On April 17, 2018, the Family Court ordered DCYF to place Student Doe at the Fernbrook program at Hillcrest, which had previously accepted him into the program. (DCYF Hearing Ex. 3, Family Court Decree, PTI-15-00180, Apr. 17, 2018.) Following this placement, DCYF sent an April 18, 2018 letter to Hillcrest stating that it would pay the full expenses until a local education agency (LEA) assumed responsibility for the cost of education. (Tr. at 20:21-21:2; DCYF Hearing Ex. 4, Affidavit of Susan Lindberg at 3.) The April 18, 2018 letter identified Newport as the responsible LEA. DCYF paid Hillcrest a total of $18,510.10, an amount which included both residential and educational services. (Decision at 4.)
This sum is not the full amount that DCYF or the responsible LEA would be required to pay. In his Decision, the Commissioner ordered NSC to reimburse DCYF for the cost of educational services provided to Student Doe at Hillcrest, which includes 59 days at $130.30 per day during Fiscal Year 2018 and 184 days at $114.48 per day during Fiscal Year 2019. (Decision at 14.) It is unclear whether the responsible LEA would continue to pay for Student Doe's expenses after reimbursing DCYF.
A month earlier, on March 20, 2018, DCYF sent a letter to the Newport Public Schools' (NPS) Director of Student Services, stating that NPS would be responsible for Student Doe's Hillcrest expenses as the LEA under the state residency statutes, G.L. 1956 §§ 16-64-1.1 and 16-64-1.2. (Tr. at 22:1-6; DCYF Hearing Ex. 5, Affidavit of Lori DePina and attached Notice.) In response, NPS denied responsibility for the expenses, noting that Student Doe never was a Newport student and his parents were not Newport residents. (Tr. at 22:7-10.) NPS refused to reimburse DCYF or Hillcrest for the educational services that Hillcrest provided to Student Doe. (Decision at 5.)
The date of this response is not included in the record.
On January 10, 2019, DCYF filed a Request for Residency Determination and Designation of Party Responsible for Education of a Youth Residing in a Residential Facility (the Petition), asking that the Commissioner order Newport to accept administrative and financial responsibility for Student Doe and requiring that the Newport School Department (NSD) reimburse DCYF for costs associated with Student Doe's placement at Hillcrest. (Decision at 2; Pre-Hearing Order, RIDE No. 19-005A, Jan. 17, 2019.) The Commissioner scheduled an evidentiary hearing for March 8, 2019. In his January 17, 2019 Pre-Hearing Order, the Commissioner directed that Chariho Regional School district (Chariho) and Providence Public School Department (PPSD) be properly notified of DCYF's Petition and have an opportunity to appear at the evidentiary hearing. (Pre-Hearing Order at 1-2; Decision at 13.) NSD issued subpoenas to DCYF, Chariho, and PPSD on February 5, 2019. (Tr. at 9:14-10:10.) DCYF and Chariho both complied with the subpoenas, while PPSD did not respond. Id.
RIDE held the duly noticed evidentiary hearing (the Hearing) on March 8, 2019. (Decision at 2.) NSD, NSC, Newport Public Schools' Director of Student Services, Chariho, and DCYF were all present at the Hearing. (Tr. at 3:8-24.) PPSD did not attend the Hearing, though DCYF represented that it provided that department with adequate notice and a copy of the Petition. (Tr. at 4:2-12.)
The Hearing Officer in this matter was Anthony Cottone, who heard the matter at the Hearing and issued the Decision, which the Commissioner thereafter adopted and signed. (Tr. at 3:2-7; Decision at 14.)
At the Hearing, NSC and NSD (collectively, Newport) argued that DCYF had the burden of proof to establish that Newport was the last known residence of Student Doe's mother prior to the Family Court termination of her parental rights, and that DCYF declared Newport financially responsible for Student Doe's education expenses based on limited, insufficient references in its records. (Tr. at 8:4-15.) Newport further contended that the evidence showed Providence was the responsible LEA based on the residence of Ms. Doe. Id. at 10:18-20. Alternatively, Newport argued that if the federal Every Student Succeeds Act (ESSA) was applicable, Chariho would be the responsible LEA because Chariho Alternative Learning Academy was Student Doe's "school of origin" prior to his placement at Hillcrest. Id. at 11:8-12.
The ESSA is a federal education statute that includes several Educational Stability Provisions. These provisions mandate that state education plans:
"[E]nsure the educational stability of children in foster care, including assurances that—
"(i) any such child enrolls or remains in such child's school of origin, unless a determination is made that it is not in such child's best interest to attend the school of origin, which decision shall be based on all factors relating to the child's best interest, including consideration of the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement; [and]
"(ii) when a determination is made that it is not in such child's best interest to remain in the school of origin, the child is immediately enrolled in a new school, even if the child is unable to produce records normally required for enrollment[.]" 20 U.S.C. § 6311(g)(1)(E)(i)-(ii).
DCYF determined Newport to be the LEA responsible for Student Doe's Hillcrest expenses based mainly upon a single entry in its RICHIST records from April 6, 2016, listing the primary residence of Student Doe's mother as 90 Girard Avenue, albeit with a note indicating the address as "Mother's residence" (the residence of Student Doe's grandmother). (Tr. at 31:10-20; 61:14-17; Pl. Ex. 3 at 1.)
DCYF offered portions of an undated case note from a DCYF case worker indicating that "[t]his matter was last before the [Family] Court on 3/14/16 . . . Since the last Court date, father remains incarcerated at the ACI . . . and mother is residing with her mother in Newport." (DCYF Hearing Ex. 10, RICHIST 17.19.1.00.) (Emphasis added.) The document further states that Student Doe's mother failed to appear for a scheduled appointment at the DCYF office on March 24, 2016. Id. The note clearly was cut off at the end, deleting the final line or lines, leaving open the question of what else was contained thereon. Id. Although strict adherence to the Rhode Island Rules of Evidence is not required at an administrative hearing, the Court notes the absence of a complete legible document detracted from the guarantees of trustworthiness that accompanies the admissibility of business records, public records, and reports. See R.I. R. Evid. 803(6) and (8). Of greater significance is the fact that DCYF's failure to present the author of the note at the hearing precluded Plaintiff the right to address the pertinent unanswered questions.
Instead, DCYF presented testimony from Jacqueline Richards, a DCYF social worker who works in the Family Support Unit. (Tr. at 26:12-28:5.) Richards had no independent knowledge of the mother's residence and never met or even spoke to Student Doe's mother. Id. at 58:18-59:3. In fact, Richards' involvement with Student Doe's case post-dated the termination of his mother's parental rights by approximately one year. Id. at 28:3-8. Richards testified that she spoke to an unidentified CASA case worker, who she claimed had "confirmed that at the time of termination of parental rights mother was residing in Newport." Id. at 69:4-7. She did not provide details about that conversation, such as when and why it occurred. Id. at 69:4-22. It is unclear where the CASA worker supposedly obtained the information, whether it was based upon personal knowledge or merely something the worker discovered from the aforementioned DCYF case worker note.
The Court further notes that Richards did not become involved in Student Doe's case until after his mother's parental rights had been terminated, raising the question of why she would have been discussing the mother's residency with a CASA worker at all. The Commissioner would have been left to speculate as to the circumstances of the conversation, the date when they spoke, and whether it was information the case worker provided in the ordinary course of her duties or merely in connection with Richards' preparation to appear at the Hearing and offer testimony in support of DCYF's position. This raises numerous questions as to the reliability of this hearsay evidence.
Richards testified that RICHIST records as to the residence of parents with children in DCYF custody were regularly kept and entered contemporaneously. Id. at 28:21-30:13. She testified that it is standard DCYF practice to ask parents monthly if they have changed address. Id. at 35:10-11 ("It's a standard practice to ask parents monthly for their address.") However, Richards had no personal knowledge as to whether this was done for Ms. Doe and testified that she never personally entered Ms. Doe's living information into RICHIST. Id. at 55:1-17. The Court notes that in this case the child previously had been removed from the mother's care, and Ms. Doe's parental rights already had been terminated before Richards became involved with Student Doe.
NPS offered testimony from Candace Andrade, its Director of Student Services, who provided evidence of Student Doe's enrollment history and academic record, which showed his continuous enrollment in Providence schools from 2010 through 2017. Id. at 91:9-20. Andrade testified that, subsequently, DCYF placed Student Doe at a variety of facilities including St. Mary's in North Providence and several hospitals. Id. at 91:18-22; DCYF Hearing Ex. 11.
NSD offered rental records for the apartment complex located at 90 Girard Avenue received in response to a subpoena. There was no record of Student Doe's mother having leased or occupied any unit at that address. (Tr. at 88:22-89:4.) NSD presented this evidence as an exhibit without witness testimony. Id.
Lastly, the Commissioner heard testimony from Dorothy Fitzgerald, the Chariho Regional School district data manager. Fitzgerald testified that based upon her review of pertinent records, there was no evidence that Student Doe's mother ever resided in that district, and that Student Doe resided with a foster family while briefly attending the Chariho Alternative Learning Academy. Id. at 95:2-96:14.
At the close of evidence, Newport and DCYF agreed to submit post-hearing memoranda on this matter and did so in April 2019. Id. at 97:10-17.
On April 26, 2019, the Commissioner issued his Decision in favor of DCYF, noting that DCYF "just barely" met its burden of proof in showing that Newport was the responsible LEA. (Decision at 12-13.) The Commissioner relied primarily on the RICHIST documents that included the 90 Girard Avenue address and concluded that the entry—along with the case activity note—provided sufficient proof that 90 Girard Avenue in Newport was the mother's last known address as of November 21, 2016, the date her parental rights were terminated. Id. However, the Commissioner did find that Richards "was not able to state unequivocally whether the reference to 'Mother's residence' was meant to evidence the fact that Ms. Doe also lived at the address" and that the date listed on the Newport address was over six months prior to the termination of Ms. Doe's parental rights. Id. at 10-11.
The Commissioner rejected the evidence submitted by the Newport education entities, including Student Doe's enrollment and attendance records, because they "shed little light upon Ms. Doe's residence at the relevant point of time since it appears that [Student] Doe was not residing with his mother, but rather at St. Mary's[.]" Id. at 12. The Commissioner then ordered Newport Public Schools to reimburse DCYF for Student Doe's Hillcrest expenses during Fiscal Year 2018 and Fiscal Year 2019, a total of $28,752.02. Id. at 14.
In his Decision, the Commissioner rejected any contention that the ESSA was controlling in this controversy and concluded that the state residency laws instead were applicable. (Decision at 7-8.) The Commissioner found that the Family Court decree ordering Student Doe's placement at Hillcrest was the functional equivalent of a DCYF best interest determination, and that therefore the ESSA presumption that a foster child should remain at his or her school of origin was rebutted. Id. As support for this holding, the Commissioner referenced two past RIDE decisions that interpreted the ESSA and its relation to state residency laws. Id. at 8 (citing DCYF v. North Smithfield School Department, RIDE No. 17-21, and DCYF v. Pawtucket School Department, RIDE No. 17-22 (Nov. 21, 2017) at 11-12).
Thereafter, the Commissioner addressed the relevant statutory scheme. He found that § 16-64-1.2(b) mandated "the department of elementary and secondary education [to] designate the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF." (Decision at 8.) He then turned to § 16-64-1.2(c), which provides that where a child was "freed for adoption by a court of competent jurisdiction," RIDE was to designate the responsible city or town based on the "last known Rhode Island residence of the child's father, mother, or guardian prior to moving from the state, dying, surrendering the child for adoption or having parental rights terminated." Id. at 9. Thus, the Commissioner found that under this statutory scheme, the operative issue was a question of fact as to where Student Doe's mother resided at the time her parental rights were terminated. Id. at 8-10.
On May 24, 2019, Plaintiff filed its appeal of the Commissioner's Decision. (Compl. at 1.) Plaintiff argued that the Commissioner's Decision was "arbitrary or capricious or was characterized by abuse of discretion or clearly unwarranted discretion" because it relied on unreliable, unsubstantiated evidence in finding that Student Doe's mother resided in Newport at the time her parental rights were terminated, while ignoring Newport's evidence that pointed to Providence as the responsible LEA. In reply, Defendant DCYF argued that the residence determination was a finding of fact and that Plaintiff seeks to have this Court substitute its judgment for that of the Commissioner. Defendant RIDE likewise argued that the Commissioner's finding of fact regarding the residency of Student Doe's mother was supported by competent evidence and therefore should not be overturned by this Court.
Standard of Review
Section 42-35-15 governs the superior court's review of an agency decision. That statute provides:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 42-35-15(g).
When reviewing an agency decision, "questions of law—including statutory interpretation—are reviewed de novo." Iselin v. Retirement Board of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008). This Court will uphold an agency decision where "competent evidence exists in the record" to support that decision. Environmental Scientific Corp v. Durfee, 621 A.2d 200, 208 (R.I. 1993). Our Supreme Court defines legally competent evidence as "'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance.'" Brindle v. Rhode Island Department of Labor & Training, 211 A.3d 930, 934 (R.I. 2019) (quoting Rhode Island Temps, Inc v. Department of Labor and Training, Board of Review, 749 A.2d 1121, 1125 (R.I. 2000)). The Court "does not weigh evidence or findings of fact, but merely reviews them to see whether they support the agency's decision." St. Pius X Parish Corp. v. Murray, 557 A.2d 1214, 1218 (R.I. 1989).
The Court will grant deference to an agency's interpretation of an ambiguous statute that the General Assembly empowered it to enforce, even where other reasonable constructions are possible, unless the interpretation is "clearly erroneous or unauthorized." Town of Warren v. Bristol Warren Regional School District, 159 A.3d 1029, 1038 (R.I. 2017) (internal quotation omitted). However, the Court's ultimate interpretation of a statute is "grounded in policy considerations and [it] will not apply a statute in a manner that will defeat its underlying purpose." Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 169 (R.I. 2003) (citing Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 804 (R.I. 2002)).
Contention of the Parties
On appeal, NSC argues that the Commissioner based his Decision on "questionable" evidence that did not support a finding that Newport was the LEA responsible for Student Doe's Hillcrest expenses. NSC agrees with the Commissioner that November 21, 2016—the time at which the Family Court terminated Ms. Doe's parental rights—is the operative date but contends there is insufficient evidence for DCYF to prove that Ms. Doe resided in Newport at the time her rights were terminated. In response, DCYF argues that the Commissioner's finding—that Ms. Doe's last known residency prior to termination of her parental rights was in Newport—is supported by competent evidence and that this Court should not substitute its judgment for that of the factfinder. Likewise, RIDE contends that the Commissioner's factual findings and Decision are supported by legally competent evidence.
In accordance with the Family Court order, DCYF placed Student Doe at Hillcrest, an out-of-state residential program. (Decision at 4.) In doing so, DCYF deferred to the Court order and did not perform a "best interest of the child" determination as to whether the placement was appropriate as set forth in the ESSA. Id. at 7-8. The Court agrees that DCYF was correct in relying on the Family Court order placing the child at Hillcrest. The Court further agrees that DCYF was correct in relying on the Rhode Island statutory scheme to determine who would assume financial responsibility for the Hillcrest placement. However, the Court finds that DCYF and the Commissioner incorrectly determined that Rhode Island law mandated NSC to assume that responsibility.
Section 16-64-1.1(c) provides that:
"Children placed by DCYF in a residential-treatment program, group home, or other residential facility, whether or not located in the state of Rhode Island, which includes the delivery of educational services provided by that facility (excluding facilities where students are taught on grounds for periods of time by teaching staff provided by the school district in which the facility is located), shall have the cost of their education paid for as provided for in subsection (d) and § 16-64-1.2. The city or town determined to be responsible
to DCYF for a per-pupil special-education cost pursuant to § 16-64-1.2 shall pay its share of the cost of educational services to DCYF or to the facility providing educational services." Section 16-64-1.1(c).
Section 16-64-1.2 provides in full: "(a) An initial factual determination and designation of the residence of the parent(s) of a child placed in the care and custody of the state shall be made by the family court in accordance with § 33-15.1-2. The director of the department of children, youth, and families shall incorporate any designation of parent's residence on the child's intra-state education identification card and update the designation pursuant to § 42-72.4-1(b). "(b) If no factual determination and designation of the residence of the parent(s) of a child placed in the care and custody of the state is made by the family court pursuant to § 16-64-1.2(a), then the department of elementary and secondary education shall designate the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF or to the facility providing educational services for children in state care pursuant to § 16-64-1.1(c). "(c) The department of elementary and secondary education shall designate the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF for children in state care who have neither a father, mother, or guardian living in the state or whose residence can be determined in the state or who have been surrendered for adoption or who have been freed for adoption by a court of competent jurisdiction using the following criteria: (1) last known Rhode Island residence of the child's father, mother, or guardian prior to moving from the state, dying, surrendering the child for adoption or having parental rights terminated; (2) when the child's parents are separated or divorced and neither parent resides in the state, the last known residence of the last parent known to have lived in the state. This designation by the department of elementary and secondary education shall be incorporated on the child's intra-state education identification card. "(d) The designation of a city or town pursuant to subsection (a), (b), or (c) of this section shall constitute prima facie evidence of parents' residence in the city or town and/or the city or town's financial responsibility for the child's education as provided in § 16-64-1.1. Pending any final decision under § 16-64-6 that a different city, town or agency bears any financial responsibility, the commissioner shall be authorized to order the general treasurer to deduct the amount owed from the designated community's school aid and to pay this amount to DCYF." Section 16-64-1.2(a)-(d). --------
Where the child at issue has been "freed for adoption by a court of competent jurisdiction" and at least one parent resides in the state of Rhode Island, RIDE will designate the responsible city or town by reference to the "last known Rhode Island residence of the child's father, mother, or guardian prior to moving from the state, dying, surrendering the child for adoption or having parental rights terminated." Section 16-64-1.2(c). Such determination "constitute[s] prima facie evidence of the parents' residence in the city or town and/or the city or town's financial responsibility for the child's education as provided in § 16-64-1.1." Section 16-64-1.2(d). Prima facie evidence is "that amount of evidence that, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue" and can be rebutted by the opposing party, at which point the trier of fact must weigh the evidence presented. Paramount Office Supply Co., Inc. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 (R.I. 1987) (citing Nocera v. Lembo, 121 R.I. 216, 397 A.2d 524 (1979)).
Under the ESSA, state educational agencies are responsible for assuring that a child in foster care "enrolls or remains in such child's school of origin, unless a determination is made that it is not in such child's best interest to attend the school of origin . . ." 20 U.S.C. § 6311(g)(E)(i). DCYF did not perform a best interest determination with respect to Student Doe. (Tr. at 11:13-16.) That determination was unnecessary because Student Doe was removed from his school of origin by a Family Court order. The Family Court found that Hillcrest was the "preferred placement" for Student Doe. (DCYF Hearing Ex. 3 at 1.) Nothing contained in the ESSA prohibits the Family Court from making this determination.
The ESSA is silent as to LEA financial responsibility for the educational placement of a child in state care. Because ESSA is silent on the issue of financial responsibility, this Court defers to the Commissioner's findings that state residency rules under Chapter 64 of Title 16 of the Rhode Island General Laws are applicable because the Family Court placement order effectively rebutted the ESSA school of origin presumption. (Decision at 7-8.)
Here, the Family Court did not make a "factual determination and designation of the residence of the parent(s) of a child placed in the care and custody of the state . . ." Section 16-64-1.2(b). Accordingly, DCYF identified Newport as "the city or town to be responsible for the per-pupil special education cost of education to be paid to DCYF . . ." Id.; Decision at 4-5. DCYF placed Student Doe at Hillcrest in accordance with the Family Court order. (Decision at 4.) As such, either DCYF or the designated city or town would be responsible for the cost of Student Doe's education under § 16-64-1.2(b)-(c). DCYF determined that the last address listed in RICHIST for Student Doe's mother, prior to termination of her parental rights, would determine which city or town would be responsible for the expenses of Student Doe's placement. While DCYF may make such an identification in its Petition to the Commissioner, in doing so that finding must be consistent with the evidence and not based upon pure speculation and conjecture.
This brings the Court to a review of DCYF and the Commissioner's interpretation of residency in this case and the factual basis for the residency determination. The Court finds that DCYF incorrectly defined the term "residence" under § 16-64-1.2(c) to include any address where a person stays, regardless of whether the child ever resided with the parent at that address and whether the stay was merely temporary and transient when compared to the person's established history of residing in another community. The Court finds that the Commissioner erred by accepting DCYF's interpretation of the term "residence." Further, DCYF based its residence determination on speculation and conjecture. The Commissioner erred when he accepted this determination, though he noted that the evidence was "just barely" sufficient to support DCYF's designation of Newport. (Decision at 12-13.)
The subject statutory scheme does not include a definition of "residence." See §§ 16-64-1 et seq. DCYF and the Commissioner concluded that Student Doe's mother was a resident at the grandmother's 90 Girard Avenue address based merely on a finding that the address was the last known place where she supposedly stayed. They failed to determine whether her purported stay at the Newport address was merely temporary and transient or if it was a long-term residency. In doing so, DCYF and the Commissioner avoided any consideration of whether 90 Girard Avenue was Ms. Doe's fixed, permanent, or ordinary dwelling place. See DeBlois v. Clark, 764 A.2d 727, 734 (R.I. 2001) (distinguishing a fixed, permanent, ordinary residence from a temporary and transient residence for purposes of establishing domicile).
Where a statute is clear, this Court "must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996). However, it is axiomatic that we "shall not interpret a statute to achieve a meaningless and/or absurd result." Souza v. Erie Strayer Co., 557 A.2d 1226, 1228 (R.I. 1989). It is also well established that "'[i]n matters of statutory interpretation our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.'" GSM Industrial, Inc. v. Grinnell Fire Protection Systems Co., Inc., 47 A.3d 264, 268 (R.I. 2012) (quoting D'Amico v. Johnston Partners, 886 A.2d 1222, 1224 (R.I. 2005)).
Admittedly, § 16-64-1.2(c) indicates that RIDE should look to the last known Rhode Island residence of a parent prior to termination of parental rights. However, reference to other provisions in the state residency statutory scheme indicates an assumption that the child in question was either residing with the parents prior to that termination or, at some time, enrolled in the school system where that parent resided. Section 16-64-1 states that "[e]xcept as provided by law or by agreement, a child shall be enrolled in the school system of the city or town where he or she resides. A child shall be deemed to be a resident of the city or town where his or her parents reside." (Emphasis added.) Therefore, the requirement that RIDE look to the last known residence of Student Doe's mother as of the date her parental rights were terminated is not a blind mandate to be applied without consideration of the child's residency and enrollment history. See Aetna Life and Casualty Co. v. Carrera, 577 A.2d 980, 983 (R.I. 1990) ("The meaning of the term 'residence' . . . must be derived in part from the context in which it is used.").
Our Supreme Court held that "[r]esidence . . . is not a word of fixed legal definition but must be interpreted according to the context and the purpose of the statute in which it is found." Flather v. Norberg, 119 R.I. 276, 281, 377 A.2d 225, 228 (1977) (citing District of Columbia v. In re H. J. B., 359 A.2d 285 (D.C. App. 1976)). The statutory reference in § 16-64-1.2(c) of the "last known Rhode Island residence of the child's . . . mother . . . prior to . . . having parental rights terminated" must be considered alongside the Legislature's definition of residence in § 16-64-1. The Court finds that the Commissioner erroneously construed the state residency statutes by failing to consider the meaning and purpose of using a parent's last known Rhode Island residence. See Decision at 9; see also Martone v. Johnston School Committee, 824 A.2d 426, 431 (R.I. 2003) ("[A] clear and unambiguous statute will be literally construed.").
Evidence at Hearing
Defendants DCYF and RIDE assert that the Commissioner's Decision—finding that Student Doe's mother last resided in Newport prior to the termination of her parental rights—is supported by legally competent evidence and argue that this Court cannot substitute its judgment for that of the agency as to a finding of fact. The Commissioner rested his Decision on the testimony of DCYF social worker Jacqueline Richards and RICHIST documents referencing the 90 Girard Avenue address in Newport as the last known residence of Ms. Doe prior to termination of her parental rights. (Decision at 10.) One of these documents, presented by DCYF, was a list of the mother's primary residences dating from 1997 to 2016. (Decision at 10; Tr. at 31:10-20; Pl. Ex. 3 at 1-6.) There are thirty-four entries on the document as presented, some of which contain multiple entries of the same address. (Pl. Ex. 3 at 1-6.) Following the birth of Student Doe, out of the thirty-one entries listed, fifteen identified her as residing in Providence at one of nine different addresses and one period of homelessness in the City. Id.
Another RICHIST document, submitted by DCYF, lists Ms. Doe at the 90 Girard Avenue address next for almost a ten-year period from August 10, 2007 to April 07, 2017, with a note that her case is "Closed." (DCYF Hearing Ex. 9.) Without offering any personal knowledge, Richards testified that the "dates show . . . when the case was opened" and reflects "the most recent updated address" for Ms. Doe. (Tr. at 53:19-54:13.) DCYF provided no explanation for why the April 07, 2017 date is listed as the case closing date when Richards also testified that Ms. Doe's case closed upon termination of her parental rights on November 21, 2016. Id. at 51:15-19.
The Commissioner also relied on a case activity note stating that "[t]his matter was last before the [Family] Court on 3/14/16" and that "[s]ince the last Court date . . . mother is residing with her mother in Newport." (Decision at 11; Tr. at 40:21-25; DCYF Hearing Ex. 10.) The case worker did not testify at the hearing. (Tr. at 60:4-9.) NSC had no opportunity to inquire as to the basis for the notation, when and from whom obtained. At the Hearing, Richards testified that she did not become personally involved in Student Doe's case until October or November of 2017, after the Family Court terminated the parental rights of Student Doe's mother. (Tr. at 28:4-5.) She did not personally input any of the electronic RICHIST information that DCYF produced as exhibits for the hearing because she was not involved with Student Doe until after Ms. Doe's parental rights were terminated. Id. at 54:24-55:3. Significantly, the RICHIST document listing Ms. Doe's residences includes the note "Mother's residence" under the 90 Girard Avenue address in Newport, while none of the other entries include such a notation. (Pl. Ex. 3 at 1-6.) DCYF presented no evidence or testimony as to why the notation was included, who at the agency confirmed that the address belonged to Ms. Doe's mother, or even whether she was living at that address at the time her parental rights were terminated. Instead, DCYF's only support for the notation was Richards' testimony, even though Richards did not become involved with the case until approximately a year after Ms. Doe's parental rights were terminated and a full eighteen months after the address and notation were entered into RICHIST. (Tr. at 64:21-65:10.)
This Court will affirm an agency decision when it is supported by legally competent evidence. Bunch v. Board of Review, Rhode Island Department of Employment and Training, 690 A.2d 335, 337 (R.I. 1997). However, "'an administrative decision can be vacated if it is clearly erroneous in view of the reliable, probative, and substantial evidence contained in the whole record.'" Costa v. Registrar of Motor Vehicles, 543 A.2d 1307, 1309 (R.I. 1988) (quoting Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893 (R.I. 1984)).
The finding by DCYF and the Decision of the Commissioner holding Newport financially responsible for Student Doe's placement at Hillcrest were founded on pure speculation and not competent, probative evidence. Administrative agencies may consider hearsay evidence. DePasquale v. Harrington, 599 A.2d 314, 316 (R.I. 1991). However, our Supreme Court explicitly noted that "[h]earsay evidence may vary significantly in its credibility and probative value" and cautioned agencies to balance the efficiency of the evidence against its reliability. Id. None of the evidence presented by DCYF was based upon personal knowledge, and NSC had no actual opportunity to confront the evidence that Student Doe's mother was a Newport resident when her parental rights were terminated. DCYF offered no evidence or testimony that explained why the 90 Girard Avenue entry was noted as Ms. Doe's "Mother's residence" and failed to produce the case worker whose note was presented at the hearing.
While the Commissioner could consider Richards' testimony that a case worker told her Ms. Doe was staying with her mother in Newport, he must also consider the reliability of such hearsay evidence. (Tr. at 69:4-11.) This testimony, along with the exhibit that DCYF submitted containing the above-mentioned case note, do not constitute reliable, probative, and substantial evidence that Ms. Doe resided in Newport at the time her parental rights were terminated. (DCYF Hearing Ex. 10.) The record lacks any evidence or testimony as to how long Ms. Doe stayed at the address, whether it was a temporary or permanent residence, whether Student Doe was ever present at the address, and whether the address would be legally considered a residence for purposes of the state residency statutes under Chapter 64 of Title 16 of the Rhode Island General Laws. It is clear that Ms. Doe led a fairly transient existence including a reported period of homelessness in March 2015. (Pl. Ex. 3, List of Primary Residences of Student Doe's Mother.)
The Commissioner's determination that Newport was the LEA was based solely on hearsay evidence including a single data entry that contained an unexplained qualification that the Newport address was the residence of Student Doe's grandmother. Clearly, property management records did not identify her as an occupant of the property: a subpoena of the apartment complex located at 90 Girard Avenue revealed no records documenting that she either leased or occupied a unit at that address from July 1, 2015 to the date of the subpoena. (Tr. at 88:22-89:4.)
The Commissioner relied on ambiguous, inconsistent, unsubstantiated evidence that lacked sufficient probative value upon which to base a finding that Newport was the responsible LEA. For example, in the Decision, the Commissioner concludes that the Family Court citation offered by Newport is one "served upon Ms. Doe relative to the termination of P. Doe's father's parental rights." (Decision at 3.) However, there is no testimony or evidence indicating whom the citation itself relates to. The document mentions only Ms. Doe by name and includes a July 13, 2015 service date and July 29, 2015 hearing date inconsistent with the involuntary termination of parental rights for either the mother or father. (Pl. Ex. 2.) When offered by NPS at the Hearing, counsel stated only that the document was a "termination of parental rights citation generated by the juvenile clerk's office of the Family Court" without identifying the parent whose rights were being challenged. (Tr. at 86:2-10.) The only probative value of this document is to establish that Ms. Doe was served at her home in Providence on July 13, 2015 with notice of a hearing on a Petition to Terminate Parental Rights. Of interest is the absence of a similar summons notifying her of the November 21, 2016 hearing.
The RICHIST entries offered by DCYF contain several inconsistent address listings for Ms. Doe. At the Hearing, DCYF offered one exhibit that suggests that Ms. Doe's case remained open until April 07, 2017 with her then address listed as 90 Girard Avenue. (DCYF Hearing Ex. 9; Tr. at 36:6-23.) Without personal knowledge, Richards explained that the aforementioned document which spanned from August 10, 2007 to April 7, 2017 did not reflect Ms. Doe's actual addresses during that period, but instead "represents the amount of time the location was open under the mother's name." (Tr. at 36:6-23, 53:19-54:19.) She testified that Ms. Doe's case remained open until April 7, 2017 and "up to the time the case closed, the mother was still living there." Id. at 51:15-21. However, there was not an iota of evidence that DCYF followed Ms. Doe's residences after the termination of her parental rights on November 21, 2016. In fact, Richards herself testified that the case closed when Ms. Doe's parental rights were terminated on November 21, 2016, which accounted for the entry "00/00/0000" on the April 6, 2016 address listing.
Again, DCYF offered no explanation as to why Ms. Doe's file might have continued after the termination of her parental rights and provided no testimony from persons who input the information into the computer system or spoke to Ms. Doe about her residence.
Furthermore, the RICHIST entries for Ms. Doe evidence that she is a transient parent who frequently moves to new addresses. The DCYF designation and Commissioner's Decision that Newport bear financial responsibility disregards the transience of the parent with thirty-four entries listed in the RICHIST computer system. (Pl. Ex. 3 at 1-6.) Of interest is that, of the addresses listed, one so-called primary residence covers only three days—from February 6 to February 9, 2007—with no explanation from DCYF as to why a primary residence entry would span such a short time frame. (DCYF Hearing Ex. 8 at 4.)
There was no evidence offered as to how long Ms. Doe resided at 90 Girard Avenue, if at all. The entry includes an unexplained qualification that it was her "Mother's residence." While the RICHIST entry lists the Girard Avenue address as having a start date of "4/06/16," the second field—presumably the move-out date—is listed as "00/00/0000," leaving it unclear in the record as to whether Ms. Doe lived at the address over seven months later, when her parental rights were terminated. (Decision at 10.) Given Ms. Doe's transient living situation, and the absence of reliable evidence as to where she resided at the time her parental rights were terminated, DCYF's designation and the Commissioner's Decision that Newport bear financial responsibility for Student Doe's placement is arbitrary and capricious. DCYF relied on questionable evidence and unsubstantiated hearsay to determine Ms. Doe's residency, and the Commissioner erred when he concluded that DCYF "just barely" met its burden of demonstrating Newport was her residence. (Decision at 12-13.) Such conclusion was made in the absence of reliable, probative, and substantial evidence on the whole record, and as such, it was clearly erroneous. See, e.g. Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 ("[The Superior Court] may reverse, modify, or remand the agency's decision if the decision . . . is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . .").
Section 16-64-1 clearly provides that a child "shall be deemed to be a resident of the city or town where his or her parents reside" and "shall be enrolled in the school system of the city or town where he or she resides." The statute that states how RIDE will designate a city or town responsible for the costs of children in state care therefore uses the last known residence prior to termination under the assumption that the child was enrolled in school at that residence and was physically present at that residence. Section 16-64-1.2(c); see also § 16-64-1 ("[A] child shall be enrolled in the school system of the city or town where he or she resides. A child shall be deemed to be a resident of the city or town where his or her parents reside.").
There is no evidence on the record that Student Doe ever lived in or even visited Newport. Clearly, he never was enrolled in any school or educational institution in Newport: Student Doe was enrolled continuously for years in the Providence school system while in his mother's care, until he entered DCYF custody on February 18, 2014. (Pl. Ex. 6; Decision at 3.) Student Doe entered DCYF custody a full thirty-three months before the Family Court terminated his mother's parental rights. (Decision at 3.) DCYF offered no evidence whatsoever that Student Doe resided in Newport with his mother at any time pertinent hereto or that he was returned to his mother's custody at any time after February 18, 2014. It would be contrary to the legislative intent of the statutory scheme to ignore this history and determine residency based on where Ms. Doe may have temporarily stayed long after the child was removed from her custody.
Because the evidence raises so many unanswered questions, the Commissioner erred in concluding that DCYF even "barely" met its burden of proof. His finding was based upon speculation and conjecture. As such, the Decision was not supported by competent evidence on the record on which to conclude that Newport was the LEA. There was insufficient evidence that Ms. Doe had an established primary residency in Newport as of November 21, 2016 and certainly insufficient evidence that she resided in Newport through April 2017, as reflected in the clearly inaccurate RICHIST document. (DCYF Hearing Ex. 9.)
Interpreting the facts and law in this case to require NSC and other Newport education entities to pay for Student Doe's out-of-state education achieves an absurd result founded on evidence that the Commissioner himself characterized as "just barely" sufficient. (Decision at 12.) Therefore, this Court reverses the Commissioner's Decision that made Newport financially responsible for Student Doe's education costs and remands the case for agency determination consistent with this Decision.
For the above reasons, the Court grants NSC's appeal. After review of the entire record, this Court finds the Decision of the Commissioner is arbitrary and capricious and not supported by credible evidence on the record. Counsel will submit the appropriate order for entry.
Neil P. Galvin, Esq.
Michael Coleman, Esq. Patricia M. Hessler, Esq.
The U.S. Departments of Education and Health published non-regulatory Guidance on June 23, 2016. The Guidance defines "school of origin" as "the school in which a child is enrolled at the time of placement in foster care" or the time of a foster placement change. See Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care (June 23, 2016) at 11.
Under the ESSA, there is a presumption that a child in foster care should remain in their school of origin "unless it is determined to be in their best interest to change schools." Guidelines at 6. DCYF is responsible for making the best interest determination. Id. at 14. However, the ESSA is silent as to how to determine financial responsibility for the residential placement of a foster child. The Commissioner held that when the ESSA school of origin presumption is rebutted by a best interest determination, RIDE should "apply the state residency rules under Chapter 64" to resolve any possible conflicts between the ESSA and state law. See DCYF v. North Smithfield School Department, RIDE No.17-21 and DCYF v. Pawtucket School Department, RIDE No. 17-22 (Nov. 21, 2017) (Consolidated) at 11-12.