Roxbury Tp. Bd. of Educ. v. West Milford Bd. of Educ.

• Decision Date: 31 July 1995
• Parties: , 102 Ed. Law Rep. 646, 23 A.D.D. 1253 ROXBURY TOWNSHIP BOARD OF EDUCATION, Plaintiff-Respondent, v. WEST MILFORD BOARD OF EDUCATION, Defendant-Appellant, and Wallington Board of Education, and D.Y. and S.K., as the parents of J.K., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 505

283 N.J.Super. 505

662 A.2d 976, 102 Ed. Law Rep. 646,

23 A.D.D. 1253

ROXBURY TOWNSHIP BOARD OF EDUCATION, Plaintiff-Respondent, v. WEST MILFORD BOARD OF EDUCATION, Defendant-Appellant and Wallington Board of Education, and D.Y. and S.K., as the parents of J.K., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued June 13, 1995.

Decided July 31, 1995.

James S. Rothschild, Morristown, for appellant (Riker, Danzig, Scherer, Hyland & Perretti, attorneys).

Linda J. Robinson, Lawrenceville, for respondents D.Y. and S.K. (Herbert D. Hinkle, attorney).

David B. Rand, Morristown, for respondent Roxbury Tp. Bd. of Educ. (Rand, Algeier, Tosti & Woodruff, attorneys; Deborah A. White, on the brief).

Walter M. Slomienski, Jr., Wilmington, for respondent Wallington Bd. of Educ.

Geraldine Callahan, Deputy Atty. Gen., argued the cause for amicus curiae Com'r of Dept. of Educ. (Deborah Poritz, Atty. Gen. of New Jersey, attorney).

Before Judges STERN, KEEFE and HUMPHREYS.

The opinion of the court was delivered by

KEEFE, J.A.D.

The West Milford Board of Education (West Milford) appeals from a final judgment entered by Judge Reginald Stanton providing, inter alia, that, as of January 1, 1993, West Milford was the district of residency of J.K., an autistic child, and as such, it was responsible for the cost of J.K.'s education at Heartspring Lifeskills Learning Center (Heartspring), the development of an Individualized Education Plan (IEP), and related determinations concerning J.K.'s appropriate educational placement pursuant to State and Federal law. West Milford also appeals from a subsequent judgment entered by Judge Stanton assessing counsel fees against it and in favor of J.K.'s parents in the amount of $15,717.20. In its original appellate brief West Milford presented the following issues for resolution:

POINT I THE TRIAL COURT'S DECISION THAT WEST MILFORD IS THE DISTRICT OF FINANCIAL RESPONSIBILITY FOR J.K.'s EDUCATION AT HEARTSPRING IS ERRONEOUS

A. The Trial Court Failed To Apply Pertinent Statutes and Regulations In Determining J.K.'s School District For School Funding Purposes

B. Judge Stanton's Failure To Follow This Statutory Scheme Set Forth In N.J.S.A. 18A:7B-12 Resulted In Great Inequities To West Milford

C. The Office Of Administrative Law's Actions In This Matter Were Those Of A "State Agency"

D. The Trial Court's Determination Of J.K.'s Domicile In West Milford Township Was Counter To Existing Case Law

POINT II THE TRIAL COURT ERRONEOUSLY AWARDED ATTORNEY'S FEES TO J.K.'s PARENTS UNDER 20 U.S.C.A. § 1415(e)(4)(B)

A. The Trial Court Failed To "Balance the Equities" In Ordering That West Milford Pay J.K.'s Parents' Attorneys Fees

POINT III THE TRIAL COURT ERRED IN FAILING TO ORDER AN ACCOUNTING AND THE TURNOVER OF FUNDS AWARDED TO WALLINGTON TO WEST MILFORD

At initial oral argument before us on April 11, 1995, West Milford argued for the first time that the Law Division lacked subject matter jurisdiction to enter the judgments under review. In view of the well established principle that "jurisdiction over the subject matter cannot be waived or conferred by consent or lack of objection thereto[,]" McKeeby v. Arthur, 7 N.J. 174, 81 A.2d 1 (1951), we asked for supplemental briefs on the issue, and invited the participation of the Commissioner of Education (Commissioner) as an amicus curiae. For the reasons stated herein, we reject West Milford's contention that the Law Division lacked subject matter jurisdiction, and also affirm on the merits of the judgments under review.

The facts necessary to understand the issues advanced by the parties are essentially undisputed. In 1989, J.K., an autistic child, and his parents lived in Wallington, New Jersey. In August of that year an Administrative Law Judge (ALJ) determined that the appropriate placement for J.K. was at Heartspring. The proceedings before the ALJ were brought pursuant to the Education For All Handicapped Children Act of 1975, 20 U.S.C.A. § 1401-61, now known as the Individuals with Disabilities Education Act, and referred to herein as the IDEA. In accordance with the ALJ's order, which was final pursuant to 20 U.S.C.A. § 1415(e), the Wallington Board of Education (Wallington) placed J.K. in Heartspring and assumed the costs for that placement, including the obligation to provide other benefits guaranteed J.K. by the IDEA.

In December 1990, J.K.'s parents divorced. In the divorce decree, his parents were granted joint custody. S.K., J.K.'s father, maintained physical custody and remained in Wallington until December 1992, when he moved to Roxbury Township. Meanwhile, J.K.'s mother, D.Y., remarried and moved to West Milford in 1991.

On December 21, 1992, S.K. executed a certification consenting to the transfer of J.K.'s physical custody to D.Y. On December 17, 1992, S.K. advised the Superintendent of Schools of West Milford that D.Y. had custody of J.K. and he now resided with her in West Milford. S.K. and D.Y. executed a Student Transfer Card indicating that J.K. was being transferred from Wallington to West Milford. The expressed reasons for the transfer of physical custody were that J.K.'s mother now had a home rather than an apartment; her marriage permitted her to remain home during the day; and J.K.'s father had a job with the potential for relocation outside the State of New Jersey. J.K.'s parents believed that the transfer would give stability to J.K. and was in his best interests.

In a letter dated January 4, 1993, Howard B. Heller, Director of Special Services for West Milford, wrote to D.Y. on behalf of West Milford expressing "sincere reservations as to [J.K.'s] domicile in West Milford[,]" and advised her that West Milford's position was that "the new resident district of the father" or DYFS had the responsibility for tuition payments. He further advised D.Y. that, as a result of a visit by the West Milford Child Study Team, "there exists some question on behalf of the West Milford School District as to the continued necessity for a residential school placement for [J.K.] in order to meet his educational needs. Certainly, [J.K.'s] current residential school placement in Kansas is in question."

J.K.'s parents, through their attorney, advised the Department of Education (Department) that West Milford refused to accept responsibility for J.K.'s education and asked the Department either to enforce the ALJ's 1989 decision, or to act on an emergent basis because termination of J.K.'s educational placement was imminent. The Department advised the parents' attorney that the request for emergent relief was procedurally deficient because it was not accompanied by a certification. The procedural deficiency was corrected in a new application filed with the Department on February 22, 1993.

On February 23, 1993, the Department's due process mediator for the Division of Special Education forwarded the parents' request for emergent relief to the Office of Administrative Law (OAL) for a hearing. The emergent nature of the parents' application was withdrawn when, at the request of the ALJ (not the one who rendered the 1989 decision), the parents reached an agreement with Heartspring to withhold its demand for payment pending the outcome of the ALJ's decision. Wallington was joined as a party by consent, and a plenary hearing was conducted.

In his June 10, 1993, written decision, the ALJ concluded that Wallington's obligation to pay expired as of December 31, 1992, and that West Milford and Roxbury should share the cost for the remainder of the 1992-93 school year. In a footnote, the ALJ rejected West Milford's argument that the State Facilities Education Act, N.J.S.A. 18A:7-12(b), applied in this context. West Milford had contended that J.K. was placed at Heartspring by a State agency because the first ALJ had entered the order, and as such, the statute required the district of the parent with whom the child lived prior to his most recent placement (Wallington) to bear the cost of J.K.'s education.

The ALJ further ordered the parents to seek modification of the divorce decree so that a singular residence for J.K. could be established. The ALJ's opinion reflected his belief that his jurisdiction was conferred by the provisions of the IDEA inasmuch as he concluded the decision with the following statement: "This decision is final pursuant to 20 U.S.C.A. § 1415(e) and 34 C.F.R. § 300.509 (1986) and is appealable for filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in a District Court of the United States. 20 U.S.C.A. § 1415(e)2, 34 C.F.R. § 300.511."

Roxbury appealed the ALJ's decision by filing a complaint in the Law Division. Roxbury invoked the jurisdiction of the Law Division pursuant to the provisions of the IDEA, 20 U.S.C.A. § 1415(e)(2), and N.J.A.C. 1:6A-18.3(a). West Milford filed an answer, counterclaim and cross-claim. In its answer, it admitted the allegations under which Roxbury invoked the jurisdiction of the Law Division. The defense of subject matter jurisdiction was not asserted.

As noted at the outset of this opinion, after receiving briefs from the parties and entertaining oral argument, Judge Stanton held that West Milford was responsible for J.K.'s education and residential costs at Heartspring, as well as other responsibilities flowing from the IDEA. Subsequently, as a result of the motion brought by J.K.'s parents, Judge Stanton assessed counsel fees against West Milford in the amount of $15,000. This appeal followed.

I

The IDEA guarantees the parents of a child with disabilities the right to "present complaints with respect to any matter relating to the ... educational placement of the child, or the provision of a free appropriate education to such child." 20 U.S.C.A. § 1415(b)(1)(E); N.J.A.C. 6:28-2.7. Heller's letter to J.K.'s parents denied their request for payment of J.K.'s residential placement and also questioned the...