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State in Interest of F.M.

January 11, 1979

STATE OF NEW JERSEY IN THE INTEREST OF F.M., JUVENILE


Minuskin, P.J.J.D.R.C.

Minuskin

[167 NJSuper Page 187] This matter is before the court on a motion of the Englewood Board of Education (board) to vacate an order of this court placing the juvenile, F.M., in the Holmstead School and requiring the board to pay for her tuition. Said order was entered November 3, 1978, subsequent to an adjudication of juvenile delinquency and a disposition placing the juvenile under the care and supervision of the Division of Youth and Family Services (D.Y.F.S.) for appropriate placement. D.Y.F.S. subsequently recommended the Holmstead School as the most appropriate facility for F.M. The Holmstead School is a privately-owned special education institution.

The issue is whether this court has the authority to compel the Englewood Board of Education to provide funding for F.M.'s tuition at a privately-owned school.

F.M., a 16-year-old black or Hispanic girl, was abandoned at birth and cared for first by the New York Foundling Hospital and then by foster parents until her adoption almost a year later. She was adopted by white parents who had also adopted another child, a black male three years older than she. The parents encountered no problems with the boy but F.M. began to have difficulties at age 11. She performed poorly academically, cut classes and displayed a disrespectful and hostile attitude toward teachers and mother. At the same time she was found to have Crohn's Disease, a chronic form of ileitis, which requires constant medication.

The instant charges against F.M. arise from her conduct in the period from April 12, 1978 through June 2, 1978, and include charges of shoplifting, incorrigibility and two complaints of runaway from the J.I.N.S. shelter. A probation report ordered prior to disposition revealed that she associated with other juveniles who engaged in drug use and prostitution. Psychological and psychiatric reports indicated that she was socially maladjusted and emotionally disturbed and recommended placement by D.Y.F.S. Qualified psychologists and D.Y.F.S. caseworkers recommended a placement in Holmstead, an excellent privately-owned day school for emotionally disturbed children. Great emphasis was placed upon the fact that F.M. needed to be separated from her peers. Pursuant to that recommendation, F.M. was placed at Holmstead where she has improved dramatically.

Subsequent to the Juvenile Court's dispositional order on June 21, 1978, the Englewood Board of Education's Child Study Team also determined that F.M. was socially maladjusted and emotionally disturbed, qualified as educationally handicapped, and recommended that she be placed at the Village School in Rockleigh, a public special education facility operated by Bergen County. This court ordered a hearing on November 2, 1978, and ordered the Director of

Pupil Services for the Englewood School System to appear to assist the court in resolving the conflicting recommendations for placement. During that hearing it was determined that the Holmstead School was the most appropriate placement and that the Englewood Board of Education should provide the necessary tuition. The board subsequently moved to set aside the resulting order, contending that (1) the board had not been afforded due process in the order entered by the court; (2) the procedure for placement of the juvenile was governed by N.J.S.A. 18A:46-1 et seq. and the administrative rules and regulations adopted by the State Board of Education, to wit N.J.A.C. 6:28-1.1 et seq. , and (3) the court lacked the jurisdiction to order the board to subsidize tuition at a private school of which it disapproved.

The court has considered the board's contention that it was not afforded due process and finds it to be without merit. The board, through its Director of Pupil Services, appeared before the court on November 2, 1978 and subsequent thereto filed a motion in this court to have the resulting order vacated. In so doing the board did thereby submit itself to the jurisdiction of this court and, having been presented with an opportunity to be heard on the motion on January 11, 1979, waived its constitutional right to due process. Cf. Mueller v. Eucenham , 33 N.J. Super. 156 (App. Div. 1954); 67A C.J.S. Parties § 68 at 794-795.

The Juvenile and Domestic Relations Court may order an appropriate educational program for the juvenile as a disposition pursuant to N.J.S.A. 2A:4-61(i). The proper education of a child has always been of supreme importance and an objective which has long been pursued in our State. State v. Vaughn , 44 N.J. 142 (1965). N.J. Const. (1947), Art. VIII, § IV, par. 1 provides:

The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.

Thus, it is clear that "the State's duty to educate children is a matter of constitutional demand." Pingry Corp. v. Hillside Tp. , 46 N.J. 457, 461 (1966); Robinson v. Cahill , 118 N.J. Super. 223 (Law Div. 1972), Supp. 119 N.J. Super. 40 (Law Div. 1972), mod. 62 N.J. 473 (1973), cert. den. 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973). In enacting N.J.S.A. 18A:38-25 et seq. , the Legislature has implemented this demand by providing for the public education of every child within the State. Pursuant to N.J.S.A. 18A:38-25 the parent, guardian or other person having custody of every child is required to see to it that every child between the ages of 6 and 16 attends "the public ...


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