Michels, Morgan and Milmed. Morgan, J.A.D. (dissenting).
The Board of Education of the Township of Little Egg Harbor appeals from a final decision of the State Board of Education which affirmed a decision of the Commissioner of Education.
The basic issue involved here is whether the Board of Education of the Township of Little Egg Harbor, or one of the named respondent school districts, is responsible for the payment of tuition for A.S., a minor enrolled in a program of special education in a nonpublic residential school (The Collier School) in Marlboro Township.
The essential facts are not in dispute. In December 1969 the minor, then almost 14 years of age, was adjudicated a juvenile delinquent by the Juvenile and Domestic Relations Court of Atlantic County. On the court's recommendation that the parents of the child cooperate with the then Bureau of Childrens Services*fn1 in finding suitable placement for their
child, they executed an agreement with the Bureau on December 18, 1969 which included their request that the Bureau place the child "in foster care or a group setting" until they could assume their full responsibility, it being understood that they were not surrendering their "parental rights." The agreement also provided that in requesting placement of the child the parents understood that the Bureau "will assume responsibility" for the child in accordance with the provisions of N.J.S.A. 30:4C-1 et seq. The care and custody of the child were thus surrendered to the Bureau by the parents. The child was then placed by the Bureau in a foster home in Pleasantville and enrolled in the public schools there. The child's mother resides in Atlantic City; her father in Galloway Township. On January 8, 1970 the father executed an acknowledgement of responsibility for the support of the child, agreeing to contribute $80 a month toward her care and maintenance so long as she would remain under the jurisdiction of the Bureau. N.J.S.A. 30:4C-29.1.
On January 22, 1970 the child was placed in a second foster home in Little Egg Harbor. The Board of Education of Little Egg Harbor operates public school facilities for grades kindergarten through six and is a sending district to the Southern Regional Junior-Senior High School which includes grades seven through twelve. The child was enrolled in the eighth grade of the Southern Regional High School District on January 26, 1970 and remained there for the balance of the 1969-70 school year. Her tuition was paid by the Board of Education of the Township of Little Egg Harbor since her foster home was located in that sending district. N.J.S.A. 18A:38-1(d) and N.J.S.A. 18A:38-19. During the summer of 1970, while the child was residing in the foster home in Little Egg Harbor, the Bureau of Childrens Services, on its own initiative, secured a psychological evaluation of her. Placement in a residential school which could provide a structured environment and therapy was indicated. On September 1, 1970 the child left the
foster home without permission. She voluntarily surrendered and was placed in the Ocean County Juvenile Shelter in Toms River. While there she was evaluated by a child study team at the request of the Bureau of Childrens Services and with the cooperation of the Little Egg Harbor School District.*fn2 On December 14, 1970 she was classified as emotionally disturbed and socially maladjusted and recommended for residential placement in a suitable special education program in accordance with N.J.S.A. Title 18A, Chapter 46. On January 4, 1971 the Bureau secured her enrollment as a ninth grade pupil in such a special education program in The Collier School, a residential, nonpublic school, in Marlboro Township.*fn3 She successfully completed the ninth grade and was promoted to the tenth grade on June 18, 1971. The Board of Education of the Township of Little Egg Harbor petitioned the Commissioner of Education requesting a determination as to which local school district involved with the child was responsible for her tuition at The Collier School. It contends that "According to the facts of this case, the domicile of A.S. can only be that of her father." We disagree.
N.J.S.A. 18A:46-14 states in pertinent part that
Whenever any child shall be confined to a hospital, convalescent home, or other institution in New Jersey or an adjoining or nearby
state and is enrolled in an education program approved under this article, the board of education of the district in which the child is domiciled shall pay the tuition of ...