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J.H.R. v. Board of Education of Township of East Brunswick

January 20, 1998


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Before Judges Pressler, Wallace and Carchman.

The opinion of the court was delivered by: Carchman, J.s.c. (temporarily assigned).

Submitted September 16, 1997 -

J.N. is a thirteen-year-old profoundly disabled child suffering from neurological impairment, blindness and incontinence. He requires twenty-four hour care. Without question, because of his disabilities, he is entitled to a free education under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400-1491o and N.J.S.A. 18A:38-1, to be paid for by the Board of Education of his domicile.

Even though J.N. has resided with his maternal grandparents in East Brunswick for his entire life, defendant East Brunswick Board of Education (East Brunswick) petitioned the Commissioner of Education challenging J.N.'s domicile. East Brunswick asserted that the obligation to pay for J.N.'s education was the responsibility of the Edison Township Board of Education (Edison) because J.N.'s mother, plaintiff J.H.R. moved to Edison Township with her new husband. Even after plaintiff's marriage, J.N. continued to remain in East Brunswick.

Not content with simply resolving the issue of domicile as between East Brunswick and Edison, East Brunswick added another count to its petition -- it sought reimbursement of tuition from plaintiff in the event Edison was determined to be responsible for the cost of J.N.'s education. *fn1 As a result of this challenge and her exposure to the loss of J.N.'s benefits under IDEA, plaintiff retained counsel and successfully defended East Brunswick's challenge before the Office of Administrative Law (OAL). Plaintiff incurred $15,000 in legal fees. *fn2

The OAL found that J.N. was domiciled in East Brunswick and that East Brunswick was responsible for the cost of J.N.'s education. The Commissioner of Education affirmed in December 1995. Thereafter, in May 1996, plaintiff commenced an action in the Law Division seeking reimbursement for attorneys' fees necessitated by plaintiff's defense of East Brunswick's claim for tuition reimbursement. East Brunswick filed a motion to dismiss plaintiff's complaint. Judge Douglas Wolfson in the Law Division denied defendant's motion. Thereafter, plaintiff filed a motion for summary judgment which Judge Wolfson granted and awarded attorneys' fees. East Brunswick appealed.

We conclude that 1) East Brunswick's action for tuition reimbursement from plaintiff places in issue J.N.'s right to a free education under IDEA; 2) the Superior Court has concurrent jurisdiction with the federal court to adjudicate fee actions under IDEA; and 3) plaintiff's claim was timely filed. Accordingly, we affirm.


In the proceedings before the OAL, the parties stipulated the relevant facts which we repeat:

J.N. was born on May 14, 1984, and since his birth, J.N. has lived with his maternal grandparents in East Brunswick. [Plaintiff] lived with her parents in East Brunswick when her son was born and she continued to live there until she remarried and moved to Edison in September 1993. J.N. continues to live with his maternal grandparents in East Brunswick while his mother and stepfather live in Edison.

J.N. has multiple disabilities. He is neurologically impaired, blind and incontinent, which requires him to wear diapers. He has a kidney disease called renal tubular acidosis which requires medical care including daily medicine. J.N. needs twenty-four-hour care.

J.N. is a classified student in the [East Brunswick's] school district, and has attended the Lakeview School in Edison since 1987. [East Brunswick] provides transportation to the school.

[Plaintiff] is in the U.S. Army Reserves on active duty. She has had personal medical problems since March 1992 and she may need further hospitalization and an operation. [Plaintiff's] husband is employed as a full-time superintendent for a garden apartment complex (approximately 900 apartments) in Edison and his job requires him to live on site and be on twenty-four-hour call. Although financially [plaintiff] and her husband can support J.N., they cannot give him the extensive care he needs. According to [plaintiff], there are no day-care centers that will accept J.N. because of his problems. [Plaintiff] visits her son at her parents' home and sometimes takes him to Edison for the weekend or on trips.

As stated, J.N. lives with his maternal grandparents, and they provide him with twenty-four-hour care. J.N.'s school states that all of its contacts are with his grandparents; the grandparents have nurtured the child and provided all additional home instruction and therapy. The grandparents also support J.N., except that J.N.'s medical, prescription drug and dental bills are covered by his parents' insurance policies. [Plaintiff] pays for some of J.N.'s clothes and his diapers.

[Plaintiff] is divorced from J.N.'s father and she has custody of their son. J.N.'s father contributes support payments which [plaintiff] puts into a bank account for J.N. [Plaintiff] has given her mother a power of attorney to take care of her son.

[Plaintiff] claimed her son as a dependent on her 1993 federal and state income tax forms. J.N. was claimed as a dependent by his maternal grandparents on their 1994 federal and state income tax forms.

When the East Brunswick Board found out in October 1994 that J.N. was living with his grandparents and his mother was living in Edison, it requested that [plaintiff] and her mother, P.H., complete its standard affidavit forms for pupils living apart from parents. The Brunswick Board initially received forms that were not signed, not notarized and not submitted in a timely manner. Representatives of the Brunswick Board met with [plaintiff] and P.H. regarding the domicile of J.N. on February 16, 1995.

Based on these facts, the OAL made Conclusions of law which were adopted by the Commissioner:

"I agree with the arguments of [plaintiff] and the Edison Board and I CONCLUDE that the Brunswick Board is responsible for the free public education of J.N. pursuant to the provisions of N.J.S.A. 18A:38-1(b)(1). J.N. and his grandparents meet the criteria set forth in this statute. It was clearly established by the facts that J.N.'s grandparents are domiciled within East Brunswick's school district and have assumed all the obligations for J.N. relative to his school requirements, and that J.N. is not residing with them solely for the purpose of receiving a free public education in [East Brunswick]. Pursuant to the provisions of N.J.S.A. 18A:38-1(b)(1), it is not necessary that J.N.'s grandparents provide all of the financial support for J.N. gratis, and the facts in this case show that the grandparents do provide a substantial portion of the financial support for J.N. Also pursuant to the statute, I CONCLUDE that J.N.'s mother is not capable of providing care for him due to family hardship. [East Brunswick's] suggestion that [plaintiff] can secure day care for J.N. is unrealistic in light of his needs, and the facts clearly show that J.N. is living with his grandparents because of his disabilities and not simply for the convenience of his mother."

The Commissioner adopted the findings and Conclusions of the OAL and affirmed in December 1995. Neither party filed an appeal.

Plaintiff filed this independent action for attorneys' fees pursuant to the fee-shifting provisions of 20 U.S.C.A. § 1415(e)(4)(B) (1986), amended by 20 U.S.C.A. § 1415(i)(3)(B) (Supp. 1997) (the fee-shifting statute). Plaintiff claimed that by seeking tuition reimbursement under these facts, East Brunswick had implicated IDEA. She asserted that she met the statutory threshold requirement of "prevailing party." East Brunswick first challenged the applicability of IDEA. Thereafter, East Brunswick asserted that the Superior Court was without jurisdiction to consider a federal statutory claim for attorneys' fees. Finally, it claimed that plaintiff's action for fees was filed out of time. The trial Judge disagreed with East Brunswick, as do we.


We first address the issue of whether this matter falls within the scope of IDEA. *fn3 IDEA is designed to ensure that all children with disabilities have available to them a free appropriate public education. Smith v. Indianapolis Public Schools, 916 F. Supp. ...

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