Manchester v. Crisman, et a l . CV-97-632-M 07/31/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
City of Manchester School District, Plaintiffs
v. Civil No. 97-632-M Opinion No. 2001 DNH 138 Margaret Crisman, as Surrogate Parent for Kimberli M . , and the Town of Pittsfield School District, Defendants
O R D E R
In its Order dated March 26, 2001, the court considered
cross-motions for summary judgment, analyzed what it considered
to be the dispositive issues and applicable law, and invited
Manchester School District ("MSD") to show cause why the state
administrative hearing officer's decision in this case should not
be affirmed. Specifically, plaintiff was asked to point to a
genuine issue of material fact relative to the qualifying nature
of Kimberli's placement in a "home for children," or demonstrate
that the term "place" (and its variations) as used by the New
Hampshire legislature in N.H. Rev. Stat. Ann. Ch. ("RSA") 193 and
as applied to Kimberli, should be construed to mean "placed by the state."1 And, if the term "place" means "placed by the
state," MSD was asked to demonstrate that it is not now estopped
from arguing that Kimberli was not placed by the state, given
MSD's apparent failure to argue the point when it challenged its
liability as the "sending district" in 1992, in an separate
proceeding before the New Hampshire Department of Education.
Having considered plaintiff's memorandum, the opposing
memoranda, and after hearing oral argument, the court concludes
that the administrative hearing officer's decision is correct for
the reasons given in this court's March 26th Order, as briefly
supplemented below. Because there is no genuine dispute as to
material facts and, given the operative facts, the Manchester
School District ("MSD") remains the "sending district" with
regard to Kimberli's public education in the Pittsfield School
District, Defendant Kimberli M. is entitled to judgment as a
matter of law.
The factual and legal background relevant to this case is
fully set out in the court's March 26th Order and will not be
1 The phrase "placed by the state" is shorthand for the statute's literal language, "placed by the department of health and human services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463." RSA 193:27.
2 repeated here, except as necessary to explain the court's
decision.
The parties agree that Kimberli is severely disabled, that
she lives and is "cared for in" a qualifying "home for children,"
within the meaning of RSA Ch. 193, and that she attends public
school in the Pittsfield School District, the district in which
the home for children is located. There is no reasonable dispute
that Kimberli physically resided in Manchester prior to being
placed in the home for children (though her legal residence, or
domicile, at the time is unclear). Certainly, MSD could have,
but did not challenge that physical residence in 1992, when it
first challenged its liability. Having failed to do so, it is
estopped from now denying that Kimberli "most recently resided
in" Manchester before being placed in the home for children. See
RSA 193:27, IV. It is also undisputed that Kimberli is (at least
for purposes of this decision) in the legal custody of a parent
who resides outside the state. Xd. So, if Kimberli was "placed"
in the home for children, then MSD remains the financially liable
"sending district."
Essentially, MSD asserts that the term "placed" as used in
the applicable statute means "placed by the state" with respect
3 to children who, like Kimberli, have been placed in a "home for
children." Because Kimberli was placed by her parents,2 and not
the state, MSD says it cannot qualify as the "sending district"
and cannot be held liable for the cost of Kimberli's public
education.
To support its position, MSD points to 1998 amendments to
RSA 193:27, IV, which inserted language expanding the definition
of "sending district" to include the school district in which a
child most recently resided other than "the home of a relative or
friend in which a child is placed by the department of health and
human services or a court of competent jurisdiction . . . ." MSD
says that qualifier — requiring that a child's placement in the
home of a relative or friend be arranged by the state as a
precondition to holding the child's previous school district of
residence financially liable for his or her public education —
2 The defendants believe that the circumstances of Kimberli's placement amounted to at least a de facto "placement by the state," but correctly note that that fact need not be determined if the phrase "placed in a home for children" includes placement by a parent. The court, for purposes of this decision, accepts MSD's claim that Kimberli was not "placed by the state." Of course, that factual dispute cannot be resolved against defendants in this context, but the assumption is not prejudicial since the fact is not critical to the court's analysis.
4 applies equally to children placed in a qualifying "home for
children." The court disagrees.
Neither the language of, nor the structure of the clauses
and sentences used in RSA 193:27, IV, as amended, supports MSD's
interpretation. The language inserted by the 1998 amendment is
set off by commas, a common device plainly intended to
communicate the intent to limit the "placed by the state"
qualifier to children placed in the home of a relative or friend.
The qualifier does not apply to children placed in "homes for
children," or in "health care facilities," or in "state
institutions." In limiting application of the "placed by the
state" qualifier to situations involving placements with friends
or relatives, the legislature undoubtedly recognized that such
placements are essentially involuntary and facially legitimate.
Therefore, the school district in which the relative or friend
lives should be reimbursed by the placed child's district, the
district ordinarily obligated to provide the child with a free
and appropriate public education. When children are placed with
relatives and friends voluntarily (i.e. without any state
intervention), however, there may be a risk of abuse, e.g.
parents placing their children with relatives in cities or towns
5 with better schools for the purpose of obtaining a public
education for them superior to that available in the parents'
hometown. To guard against such placements, the legislature has
generally precluded nonresident children from attending local
schools, absent at least a "recommendation" or "request" by the
department of health and human services that the child be placed
with a relative or friend. See RSA 193:12, V, and V-a ("Whenever
a parent . . .places a child with a relative at the
recommendation or request of the department . . . , that child
shall be permitted to attend the public schools of the school
district in which that relative resides . . . .") .
Thus, the 1998 amendments adding the qualifying language
regarding a child's placement with friends or relatives "by the
state," insured that the cost of such placement would be borne
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Manchester v. Crisman, et a l . CV-97-632-M 07/31/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
City of Manchester School District, Plaintiffs
v. Civil No. 97-632-M Opinion No. 2001 DNH 138 Margaret Crisman, as Surrogate Parent for Kimberli M . , and the Town of Pittsfield School District, Defendants
O R D E R
In its Order dated March 26, 2001, the court considered
cross-motions for summary judgment, analyzed what it considered
to be the dispositive issues and applicable law, and invited
Manchester School District ("MSD") to show cause why the state
administrative hearing officer's decision in this case should not
be affirmed. Specifically, plaintiff was asked to point to a
genuine issue of material fact relative to the qualifying nature
of Kimberli's placement in a "home for children," or demonstrate
that the term "place" (and its variations) as used by the New
Hampshire legislature in N.H. Rev. Stat. Ann. Ch. ("RSA") 193 and
as applied to Kimberli, should be construed to mean "placed by the state."1 And, if the term "place" means "placed by the
state," MSD was asked to demonstrate that it is not now estopped
from arguing that Kimberli was not placed by the state, given
MSD's apparent failure to argue the point when it challenged its
liability as the "sending district" in 1992, in an separate
proceeding before the New Hampshire Department of Education.
Having considered plaintiff's memorandum, the opposing
memoranda, and after hearing oral argument, the court concludes
that the administrative hearing officer's decision is correct for
the reasons given in this court's March 26th Order, as briefly
supplemented below. Because there is no genuine dispute as to
material facts and, given the operative facts, the Manchester
School District ("MSD") remains the "sending district" with
regard to Kimberli's public education in the Pittsfield School
District, Defendant Kimberli M. is entitled to judgment as a
matter of law.
The factual and legal background relevant to this case is
fully set out in the court's March 26th Order and will not be
1 The phrase "placed by the state" is shorthand for the statute's literal language, "placed by the department of health and human services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463." RSA 193:27.
2 repeated here, except as necessary to explain the court's
decision.
The parties agree that Kimberli is severely disabled, that
she lives and is "cared for in" a qualifying "home for children,"
within the meaning of RSA Ch. 193, and that she attends public
school in the Pittsfield School District, the district in which
the home for children is located. There is no reasonable dispute
that Kimberli physically resided in Manchester prior to being
placed in the home for children (though her legal residence, or
domicile, at the time is unclear). Certainly, MSD could have,
but did not challenge that physical residence in 1992, when it
first challenged its liability. Having failed to do so, it is
estopped from now denying that Kimberli "most recently resided
in" Manchester before being placed in the home for children. See
RSA 193:27, IV. It is also undisputed that Kimberli is (at least
for purposes of this decision) in the legal custody of a parent
who resides outside the state. Xd. So, if Kimberli was "placed"
in the home for children, then MSD remains the financially liable
"sending district."
Essentially, MSD asserts that the term "placed" as used in
the applicable statute means "placed by the state" with respect
3 to children who, like Kimberli, have been placed in a "home for
children." Because Kimberli was placed by her parents,2 and not
the state, MSD says it cannot qualify as the "sending district"
and cannot be held liable for the cost of Kimberli's public
education.
To support its position, MSD points to 1998 amendments to
RSA 193:27, IV, which inserted language expanding the definition
of "sending district" to include the school district in which a
child most recently resided other than "the home of a relative or
friend in which a child is placed by the department of health and
human services or a court of competent jurisdiction . . . ." MSD
says that qualifier — requiring that a child's placement in the
home of a relative or friend be arranged by the state as a
precondition to holding the child's previous school district of
residence financially liable for his or her public education —
2 The defendants believe that the circumstances of Kimberli's placement amounted to at least a de facto "placement by the state," but correctly note that that fact need not be determined if the phrase "placed in a home for children" includes placement by a parent. The court, for purposes of this decision, accepts MSD's claim that Kimberli was not "placed by the state." Of course, that factual dispute cannot be resolved against defendants in this context, but the assumption is not prejudicial since the fact is not critical to the court's analysis.
4 applies equally to children placed in a qualifying "home for
children." The court disagrees.
Neither the language of, nor the structure of the clauses
and sentences used in RSA 193:27, IV, as amended, supports MSD's
interpretation. The language inserted by the 1998 amendment is
set off by commas, a common device plainly intended to
communicate the intent to limit the "placed by the state"
qualifier to children placed in the home of a relative or friend.
The qualifier does not apply to children placed in "homes for
children," or in "health care facilities," or in "state
institutions." In limiting application of the "placed by the
state" qualifier to situations involving placements with friends
or relatives, the legislature undoubtedly recognized that such
placements are essentially involuntary and facially legitimate.
Therefore, the school district in which the relative or friend
lives should be reimbursed by the placed child's district, the
district ordinarily obligated to provide the child with a free
and appropriate public education. When children are placed with
relatives and friends voluntarily (i.e. without any state
intervention), however, there may be a risk of abuse, e.g.
parents placing their children with relatives in cities or towns
5 with better schools for the purpose of obtaining a public
education for them superior to that available in the parents'
hometown. To guard against such placements, the legislature has
generally precluded nonresident children from attending local
schools, absent at least a "recommendation" or "request" by the
department of health and human services that the child be placed
with a relative or friend. See RSA 193:12, V, and V-a ("Whenever
a parent . . .places a child with a relative at the
recommendation or request of the department . . . , that child
shall be permitted to attend the public schools of the school
district in which that relative resides . . . .") .
Thus, the 1998 amendments adding the qualifying language
regarding a child's placement with friends or relatives "by the
state," insured that the cost of such placement would be borne
not by the relative's district, but by the "sending district."
In all other cases, either the child placed with relatives or
friends would not be entitled to attend public schools in the
relative's or friend's district at all, or, before the child
could attend the local schools (at the local district's expense)
it would first have to be shown that the voluntary placement was
to "promote the child's well being, and not for the purpose of
6 allowing the child to attend school in the district where the
relative resides." RSA 193:12, V-a(a).
The term "place" does, in the educational community,
encompass placement by a parent. The legislature very clearly
uses the term in that manner in RSA 193:12, V-a, and the New
Hampshire Department of Education's administrative regulations
use the term in a manner that includes parental placement as
well. The department defines the term as follows:
(11) "Placement" or "place" means the act of enrolling a student in, or committing or moving a student to, an educational program or residential program or facility, or the act of transferring a student from one educational program or residential program or facility to another; "placement" or "place" also means the site in which a student has been or will be placed.
N.H. Code Admin. R. Ed 1130.02 (a) (11) . And, in the event a
school district requests a determination of financial liability
for the provision of educationally related services arising from
a placement, that district is required, by regulation, to provide
the department with particular information, including:
i . Name of each placing agency such as parent, DCYF, school district, cou r t [.]
N.H. Code Admin. R. Ed 1130.07(a)(3)d.1.i . (emphasis supplied).
7 Accordingly, even accepting that Kimberli was moved to the
Brock Home - a qualifying "home for children" - by her parents,
she was "placed" there within the unambiguous meaning of that
term as it is used in the pertinent statutes and administrative
regulation. Therefore, MSD is the "sending district" financially
liable for Kimberli's public education in the Pittsfield School
District.
CONCLUSION
Plaintiff, Manchester School District, having failed to show
cause why the administrative hearing officer's decision in this
matter should not be affirmed, and, because, given the undisputed
material facts, Kimberli M. is entitled to judgment as a matter
of law, judgment shall be entered in favor of Kimberli M. and the
case closed.
SO ORDERED.
Steven J. McAuliffe United States District Judge
July 31, 2001
cc: Dean B. Eggert, Esq. Lynne J. Zygmont, Esq. Jay C. Boynton, Esq. Jed Z. Callen, Esq. Jeanne Kincaid, Administrative Hearing Officer