July 8, 2008
M.L.P. ON BEHALF OF MINOR CHILD C.L.P., PETITIONER-RESPONDENT,
BOARD OF EDUCATION OF THE TOWNSHIP OF BLOOMFIELD, ESSEX COUNTY, RESPONDENT-APPELLANT.
On appeal from the State Board of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 15, 2008
Before Judges Fuentes, Grall and Chambers.
The Board of Education of the Township of Bloomfield appeals from the decision of the State Board of Education finding the Bloomfield Board legally obligated to provide C.L.P. (a child between the age of five and twenty years old) with a free public education pursuant to N.J.S.A. 18A:38-1. In so doing, the State Board of Education adopted, without modification, the decision of the Acting Commissioner of Education.
This case originated as an appeal filed by M.L.P., mother of the minor C.L.P., challenging the decision of the Bloomfield Board to disenroll C.L.P. as a student in the school district.
The Bloomfield Board decided to disenroll C.L.P. after conducting an investigation which revealed that the child resided with her grandmother in East Orange. M.L.P.'s appeal on behalf of her daughter was transferred to the Office of Administrative Law, where an administrative law judge made the following undisputed factual findings:
By letter dated November 18, 2005, the district notified petitioner that a Board meeting had been scheduled to vote upon the disenrollment of C.L.P. from the district schools as she was determined to not be domiciled within the district. The meeting was scheduled for December 20, 2005 at 8:00 p.m. and M.L.P. was in attendance. At that meeting M.L.P. advised the Board that she drops C.L.P. off at her grandmother E.W.'s home at 5:30 a.m. each day, at . . . East Orange, and that was why C.L.P. had never been observed leaving the Bloomfield residence to go to school.
The investigation continued with observations of E.W.'s residence over several additional days in January, February, May and June 2006. C.L.P. was again observed leaving the residence at . . . East Orange, New Jersey in the morning, and being driven to the [Bloomfield public school] by E.W. On no occasion was C.L.P. dropped off in the morning by M.L.P.
On each day of observation the investigator arrived at the East Orange address between 4:15 and 4:30 a.m. and remained until C.L.P. and E.W. left for school at approximately 8:30 each morning. His continued observations were consistent with C.L.P. residing with her grandmother in East Orange, rather than with her mother in Bloomfield, since at least September 30, 2005 when the investigation commenced.
A copy of a Lease and Deposit Agreement provided to the district by M.L.P. indicates that M.L.P. resides at [an address in] Bloomfield, New Jersey. The Board investigator spoke with M.L.P.'s landlord who advised that M.L.P. was residing in the one bedroom apartment at that location with another adult.
C.L.P. was enrolled as a first grade student during the 2005-2006 school year and the tuition cost for a first grade student in the Township of Bloomfield during the 2005-2006 school year was $8,824.
Based on these findings, the ALJ filed an Initial Decision concluding that M.L.P. had failed to meet her burden of proof under N.J.S.A. 18A:38-1(a) that C.L.P. was domiciled within the Bloomfield school district during the 2005-2006 school year. On appeal, the acting State Commissioner of Education rejected the Initial Decision of the ALJ, noting that:
[I]t is well settled that a minor child does not establish his or her own domicile. Rather, the domicile of the child is determined by the domicile of the parent. Although it appears that C.L.P. spent a great deal of time at her grandmother's residence, she nonetheless had a right to a free public education in respondent's district by virtue of the fact that her mother, the petitioner, was domiciled in that district.
Acting on Bloomfield's appeal, the State Board of Education adopted the Acting Commissioner's decision and affirmed without any modifications. Bloomfield now appeals, arguing that the State Board's decision is legally erroneous, because it ignores the clear language of N.J.A.C. 6A:22-3.1(a)(1). We agree that, on its face, this regulation presents issues that should have been addressed by the State Board in reviewing the decision of the Acting Commissioner. Thus we are compelled to remand this matter to the State Board.
Under N.J.S.A. 18A:38-1(a), a person over five years old, but under twenty years old, is entitled to a free public education in the school district where such person is "domiciled." Under the common law, a minor child is domiciled where the parent, custodian or guardian of that child is domiciled. P.B.K. v. Bd. of Educ. of Boro. of Tenafly, 343 N.J. Super. 419, 427 (App. Div. 2001).
Three years after our decision in P.B.K., the State Board of Education promulgated N.J.A.C. 6A:22-3.1(a)(1), which defines "domiciled," under N.J.S.A. 18A:38-1, as follows:
A student is domiciled in the school district when he or she is living with a parent or legal guardian whose permanent home is located within the school district. A home is permanent when the parent or guardian intends to return to it when absent and has no present intent of moving from it, notwithstanding the existence of homes or residences elsewhere.
In D.L. v. Board of Education of Princeton Regional School District, we noted the established principle that a person may have several simultaneous residences, but only one domicile.
366 N.J. Super. 269, 274 (App. Div. 2004) (citing Collins v. Yancy, 55 N.J. Super. 514, 520-21 (Law Div. 1959); N.J.A.C. 6A:22-3.1(a)(1)). Thus here, for the purpose of determining where C.L.P. is domiciled, the State Board of Education was required to ascertain whether she was living with her guardian whose permanent home is located within the Bloomfield school district, under N.J.A.C. 6A:22-3.1(a)(1). Because neither the Acting Commissioner nor the State Board even referred to this regulation in their respective decisions, we are obliged, as a matter of comity, to give them the opportunity to first consider and apply this regulatory standard to the undisputed facts in this record.
Reversed and remanded.
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