In Interest of G. H.
| Decision Date | 30 April 1974 |
| Docket Number | No. 8930,8930 |
| Parties | In the Interest of G. H., a child. SPECIAL EDUCATION DIVISION OF the DEPARTMENT OF PUBLIC INSTRUCTION of the State of North Dakota, Petitioner and Appellee, v. G. H. et al., Respondents, and Williams County Welfare Board and Public Welfare (Social Service) Board of the State of North Dakota, Respondents and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The right to a public school education is a right guaranteed by the North Dakota Constitution. N.D.Constitution, Secs. 147, 148, 11, and 20.
2. The right to a public school education is given to all children with physical or mental handicaps except those, if any there are, who can derive no benefit from education.
3. The right to a public school education, if the State provides it for any children, entitles all children, including those with physical and mental handicaps (except those, if any, who can derive no benefit from education) to a similar opportunity on equal terms as is guaranteed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
4. The residence of a child determines the identity of the school district responsible for providing educational opportunity to the child.
5. Assignment of a child requiring special education to a school outside the district of the child's residence does not change the residence of the child.
6. The residence of a child who is made a ward of the State is separate from that of her parents.
Gerald W. VandeWalle, Asst. Atty. Gen., Bismarck, for Sp. Ed. Div. of the Dept. of Public Instruction, petitioner and appellee.
Rolfstad, Winkjer, Suess, McKennett & Kaiser, Williston, for Williston School District No. 1.
Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for Crippled Children's School.
Anseth & Rustad, Williston, for Williams County Welfare Board, respondent and appellant.
Milton E. Moskau, Sp. Asst. Atty. Gen., Bismarck, for Public Welfare (Social Service) Board, respondent and appellant.
Lundberg & Nodland, Bismarck, for North Dakota Association for Retarded Children, Inc., and Robert L. Burgdorf, Jr., South Bend, Ind., for National Center for Law and the Handicapped, Inc., amici curiae.
G. H., in whose interest this action was brought, was born on July 27, 1957, with severe physical handicaps which need not be detailed. She is educable, and is expected to finish her grade school education soon. At the time of her birth her family lived at Williston, Williams County, North Dakota, in Williston School District No. 1.
She spent some time at the Grafton State School (for retarded children), but did not really belong there, so she was sent to the Crippled Children's School at Jamestown, North Dakota, at the request of the superintendent of the Grafton State School. The Crippled Children's School is a private, nonsectarian, nonprofit institution. G. H. has now spent most of her 17 years of life there.
Her parents were unable to pay the charges at that school, even though approximately half of the expenses of the school are paid by charitable contributions. So the Williams County Welfare Board began paying the cost of keeping her in a foster home in Jamestown, while Williston School District No. 1 contracted with the Crippled Children's School to pay her tuition. Such contracts are authorized by Chapter 15--59, North Dakota Century Code, which provides, in substance, that a school district may contract with a private, nonsectarian, nonprofit corporation for the cost of educating handicapped children and agree to pay three times the State average per-pupil elementary or high school cost. Sixty per cent of such cost is reimbursed by the Special Education Division of the Department of Public Instruction of the State of North Dakota.
All went well until the parents of G. H. moved to Minneapolis, Minnesota, in 1969, leaving her at the Crippled Children's School in Jamestown. Williston School District No. 1 stopped paying the tuition at the school as of September 1, 1969, while the County Welfare Board continued to pay for the foster home care. The Crippled Children's School continued to provide her with educational services, without reimbursement by anyone.
On March 20, 1970, Reuben E. Carlson, an officer of the State Public Welfare Board, petitioned the district court of Stutsman County (where the Crippled Children's School is located) to make a determination concerning the care, custody, and control of G. H., and asserted that she was a deprived child without proper parental care or control; that her parents were not living together and were unable to provide a suitable home for her; that she had physical disabilities which make it necessary for her to attend the Crippled Children's School; and that her parents were unable to cope with her many needs because of her physical condition. The action was brought by Reuben E. Carlson, and the respondents were G. H. and her parents. After a hearing, the district court made findings on May 14, 1970, that G. H. is a deprived child, that her parents were unable to provide for her, that the causes of her deprivation were not likely to be remedied, that her mother was confined to a hospital for psychiatric treatment, that it was impossible for her parents to care for her, that the most suitable place for her was the Crippled Children's School, and that the parents had not established permanent residence outside the Williston area. The court further found that the Crippled Children's School had proper facilities for her education and that there were no public schools in the State of North Dakota with the necessary facilities which would accept her. The court further found that the Williams County Welfare Board was providing for her care and that up to September 1, 1969, when the parents left Williston, the Williston School District paid the tuition at the Crippled Children's School.
The court thereupon ordered that G. H. be taken under the juvenile jurisdiction of the court, that her care, custody, and control be transferred to the director of the Williams County Welfare Board, and that her father pay $55 per month to the Williams County Welfare Board if his income warranted. Williston School District No. 1 was ordered to pay the educational costs at the Crippled Children's School retroactively to September 1, 1969, and continuously thereafter so long as she remains a student at the School.
Copies of the order were served upon the administrator of the Williston school district, the area social service center at Williston, and the Crippled Children's School, as well as upon G.H.'s father.
The school district, on May 13, 1971, moved the court to vacate that portion of the order requiring it to pay for the tuition, upon grounds of (1) mistake, inadvertence, surprise or excusable neglect, and (2) fraud, misrepresentation or other misconduct of an adverse party. The motion was supported by affidavits of the register of deeds of Williams County to the effect that no real property was owned by G. H.'s father in Williams County, and of Leon Olson, the superintendent of schools of Williston, to the effect that G. H.'s father had sold his house at Williston on September 4, 1969, and her parents had moved to Minneapolis, where they had resided for 21 months. Upon a hearing on this motion, the court made certain findings as to the parents' moving to Minneapolis, but reiterated its previous findings that G. H. was a deprived child, that her parents were unable to care for her, that she was attending a crippled children's school which was a fit and proper place for her and in her best interests to attend. The court further found that her parents were then residents of Minneapolis and that her father was capable of contributing $40 per month toward her support, that G. H. was not a student of Williston School District No. 1, as that term is defined in Section 15--59--07, N.D.C.C., and that her tuition was an obligation of the Special Education Division of the State Department of Public Instruction for the year 1970--1971 and thereafter until assumed by the State of Minnesota or until further order of the court. The court vacated its prior order requiring the school district to pay the tuition and ordered the Special Education Division to do so. The responsibility of the Williams County Welfare Board for general subsistence and foster-home care was continued. Notice of the latter hearing was served upon the parents of G. H., Mr. Carlson of the Public Welfare Board, and the attorney for the Crippled Children's School; and attorneys for the school district, the Public Welfare Board, and the Crippled Children's School participated in the hearing, as did the director of the Williams County Welfare Board and others.
Thereupon the Special Education Division petitioned for the vacation of portions of the order of July 27, 1971, asserting that it was unauthorized to pay tuition except as reimbursement to school districts under Chapter 15--59, referred to above. A summons and notice to appear was served upon attorneys for the Crippled Children's School, the County Welfare Board, the Public Welfare Board for the State, the Williston school district, the Department of Public Instruction, and the parents of G. H. After a hearing, the court further amended its order to provide that the Public Welfare Board and the Williams County Welfare Board be required to pay the tuition. The specific language of the court's order is as follows:
'That the above named minor child, G. H., is continued under the juvenile jurisdiction of this Court and is hereby declared to be a ward of the State; that the care, control, custody of said child be and the same is hereby continued with the Director of the Williams County Welfare Board, Williams County, North Dakota, and that all major medical determinations be made with the consent...
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