J.A., on behalf of minor child, K.M. v. Board of Education of the Township of Middletown, Monmouth County, 7/1/2020, (#144-20)

144-20
New Jersey Commissioner of Education
Final Decision
J.A., on behalf of minor child, K.M.,
Petitioner,
v.
Board of Education of the Township of
Middletown, Monmouth County,
Respondent.
Synopsis
Pro se petitioner challenged the determination of the respondent, the Board of Education of the
Township of Middletown, that petitioner is not domiciled in Middletown Township and that K.M. is
therefore not eligible to receive a free public education in the district. 	The Board asserted that
petitioner has admitted she now lives in Keansburg but wanted to have K.M. continue his education in
Middletown Township schools; the Board argued that the appeal is without merit and that petitioner’s
request for relief has no basis in law. The Board filed a motion to dismiss the petition.
The ALJ found, inter alia, that: 	pursuant to N.J.S.A. 18A:38-1(a), public school is free to children
domiciled within the school district, and the domicile of a child follows that of the parent; in this case,
it is undisputed that petitioner no longer lives in Middletown; 	petitioner is cognizant of the fact that
K.M. is not eligible to continue his education in the District; petitioner failed to respond to the Board’s
motion to dismiss, failed to appear on a scheduled conference call, and did not offer the OAL “an
explanation for the nonappearance within one day” of the petitioner’s non-appearance within the
meaning of N.J.A.C. 1:1-14.4(a). 	The ALJ concluded that a plain reading of N.J.A.C. 1:1-14.4(a)
required the matter to be returned to the transmitting agency for appropriate disposition. 	According,
the ALJ granted the Board’s motion to dismiss and ordered that the case be returned to the Department
for appropriate disposition pursuant to N.J.A.C. 1:1-3.3(b) and (c).
Upon review, the Commissioner concurred with the ALJ’s finding that petitioner admitted she was not
a domiciliary of Middletown for the 2019-2020 school year, and further concurred that K.M. was not
entitled to a free public education in the district’s schools during that time. 	Accordingly, pursuant to
N.J.S.A. 18A:38-1b, the Commissioner directed petitioner to reimburse the Board in the amount of the
district’s annual per pupil cost for the 2019-2020 school year. 	In so doing, the Commissioner noted
that it was not necessary for the OAL to administratively return the file to the agency since the ALJ’s
conclusions on the merits of the case were sufficient to grant the Board’s motion to dismiss.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.
July 1, 2020

OAL Dkt. No. EDU 00482-20
Agency Dkt. No. 321-12/19
New Jersey Commissioner of Education
Decision
J.A., on behalf of minor child, K.M.,
Petitioner,
v.
Board of Education of the Township of
Middletown, Monmouth County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge’s
(ALJ) finding that petitioner admitted that she was not a domiciliary of Middletown for the
2019-2020 school year. 	The Commissioner further concurs with the ALJ’s conclusion that the
minor child was, therefore, not entitled to a free public education in the school district during that
time.1
Pursuant to N.J.S.A. 18A:38-1b, the Commissioner shall assess tuition against
petitioner for the time-period during which the minor children were ineligible to attend school in
Middletown. 	Therefore, the Board is entitled to tuition reimbursement equal to its annual per
1 Despite reaching this conclusion, the ALJ did not render a decision on the Board’s motion to dismiss. Instead the
ALJ based his determination on petitioner’s failure to participate in the hearing process, and administratively
returned the file to the agency pursuant to N.J.A.C. 1:1-3.3. 	However, it was not necessary for the OAL to
administratively return the file to the agency since the ALJ’s conclusions as to the merits of the case are sufficient to
grant the Board’s motion to dismiss.

pupil cost for the 2019-2020 school year, during which time petitioner’s minor child was
ineligible to attend school in respondent’s district.
Accordingly, the Board’s motion to dismiss the petition of appeal is granted.
Petitioner is directed to reimburse the Board in the amount of the district’s annual per pupil cost
for the 2019-2020 school year, the time-period in which K.M. was ineligible to attend school in
Middletown.
IT IS SO ORDERED. 2
COMMISSIONER OF EDUCATION
Date of Decision: 7/1/2020
Date of Mailing: 	7/2/2020
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION GRANTING
MOTION TO DISMISS
OAL DKT. NO. EDU 00482-20
AGENCY DKT. NO. 321-12/19
J.A. on behalf of minor child, K.M.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF MIDDLETOWN, MONMOUTH
COUNTY,
Respondent.
_____________________________________
J.A. on behalf of minor child, K.M, pro se
Afshan Ajmiri Giner, Esquire, for respondent (Florio, Perrucci, Steinhardt and
Cappelli, LLC, attorneys)
Record Closed: May 14, 2020 	Decided: May 22, 2020
BEFORE DEAN J. BUONO, ALJ:
PROCEDURAL HISTORY AND STATEMENT OF CASE
Petitioner, J.A. on behalf of minor child, K.M., challenges respondent, Board of
Education for the Township of Middletown’s, (Board/District) finding that petitioner does

OAL DKT. NO. EDU 00482-20
2
not live within the District and is not domiciled in the District. 	As such, petitioner is
required to reimburse the District for tuition.
On January 10, 2019, the Department of Education, Office of Controversies and
Disputes transmitted the matter to the Office of Administrative Law (OAL), where it was
filed as a contested case pursuant to N.J.S.A. 52:14F-1 to -13 and N.J.S.A. 52:14B-1 to -
15. 	In lieu of filing an answer to the petition, the Board filed a motion to dismiss. The
undersigned conducted a telephone conference with the parties and instructed the
petitioner to file a response to the motion to dismiss by March 20, 2020. 	I also
instructed her that the response need not be formal, a simple letter would suffice. 	On
May 14, 2020, the undersigned conducted another telephone conference in an effort to
ascertain 	petitioner’s 	position 	on 	the 	motion. 	Petitioner failed 	to 	appear 	for 	the
telephone 	conference. 	However, 	petitioner 	indicated 	to 	my 	assistant 	that 	she 	is
“essential personnel” and could not participate in the conference. 	My assistant offered
petitioner, through e-mail, a time change for the conference call to 12 noon or another
time in the morning of May 14, 2020, to accommodate petitioner, but no response was
received from petitioner.
Interestingly, this case does not present divergent facts. Respondent argues that
the Board properly investigated and determined domicile. 	Petitioner argues that they
“moved out of 	the District” 	but would 	“like my son to continue 	his education in
Middletown because of his IEP and recommendations of his therapist and child study
team. Changing schools would be a detriment to his education and mental health.” (Pro
Se Residency Appeal.)
FACTUAL DISCUSSION
Most of the salient facts surrounding this matter are not in dispute and represent
the history of this case by their respective parties. 	Having reviewed the brief in support
of the motion to dismiss, I FIND as FACTS:
Petitioner is a former resident of Middletown, New Jersey. 	On July 25, 2019,
petitioner entered into a lease agreement for a term of three years for a property located

OAL DKT. NO. EDU 00482-20
3
in Keansburg, New Jersey. (Exhibit B.) 	Keansburg is a borough in New Jersey, wholly
separate from the Middletown educational district. 	Keansburg has its own school
district, and students living in Keansburg are not eligible to attend school in the
Middletown District as they are not domiciled in Middletown, New Jersey. 	Petitioner
was notified of K.M.’s ineligibility to attend school in the District in October 2019 and
then again in November 2019, as petitioner admittedly moved to Keansburg, New
Jersey. (Exhibit C.) 	Nevertheless, petitioner insisted that K.M. remain in the District’s
schools and receive special education and related services; notably, the same services
are available to K.M. in Keansburg. (Exhibit D.)
On November 1, 2019, the District sent petitioner a Notice of Initial Determination
of Ineligibility, stating that petitioner was not domiciled in the District as her permanent
address was in Keansburg, New Jersey. (Exhibit E.) 	The District further advised
petitioner of her right to appear before the Board for a residency hearing.
On November 20, 2019, petitioner appeared before the Board for a residency
hearing, during which, petitioner was again apprised of the residency requirements.
The Board also gave petitioner the opportunity to share her position and considered her
circumstances; following which, the Board made a determination that K.M. was not
eligible to remain in the District’s schools. A Notice of Final Determination of Ineligibility
was issued and sent to petitioner finding that K.M. was not domiciled in the District, and
therefore, ineligible to attend the District’s schools. (Exhibit F.)
On or about December 11, 2019, petitioner filed a residency appeal, wherein she
admitted that she moved out of the District but would like to keep K.M. enrolled in the
District. See Exhibit A.
LEGAL ARGUMENT AND CONCLUSION
“Specific pleading requirements are governed by the agency with subject matter
jurisdiction over the case.” N.J.A.C. 1:1-6.1(a). The rules require that a “petition shall
include . . . a statement of the specific allegation(s) and essential facts supporting them
which have given rise to a dispute under the school laws.” N.J.A.C. 6A:3-1.4(a). When

OAL DKT. NO. EDU 00482-20
4
deficient and inadequate petitions are presented to the Commissioner, at any time prior
to transmittal of the pleadings to the OAL—in the Commissioner’s discretion or upon
motion to dismiss filed in lieu of answer—the Commissioner may dismiss the petition on
the grounds that the petitioner has not advanced any cause of action, even if the
petitioner’s factual allegations are accepted as true. See N.J.A.C. 6A:3-1.10.
In fulfilling their quasi-judicial responsibilities, state agencies look to judicial
principles for guidance. Hackensack v. Winner, 82 N.J. 1, 28-30 (1980). “[C]ourt-
fashioned doctrines for the handling of litigation do in fact have some genuine utility and
relevance in administrative proceedings.” Id. at 29. The New Jersey Supreme Court
further held,
many principles and rules that govern judicial proceedings and
determinations can be applied to an agency’s quasi-judicial or
adjudicative function. Judicial rules of procedure and practice
are transferrable to administrative agencies when these are
conducive to ensuring fairness, independence, integrity, and
efficiency in administrative adjudications.
[I/M/O Tenure Hearing of Onorevole, 103 N.J. 548, 554-55 (1986).]
Thus, the principles which govern a motion to dismiss for failure to state a claim under
R. 4:6-2(e) apply equally to a motion to dismiss to advance a cause of action under
N.J.A.C. 6A:3-1.10.
In deciding a motion to dismiss for failure to state a claim upon which relief can
be granted under R. 4:6-2(e), “the inquiry is confined to a consideration of the legal
sufficiency of the alleged facts apparent on the face of the challenged claim.” Rieder v.
State, Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (emphasis added).
The court may not consider anything beyond whether the complaint states a cognizable
cause of action. Id. 	For purposes of determining the motion, the court must “assume
the facts as asserted by [petitioners] are true and give [them] the benefit of all
inferences that may be drawn in [their] favor.” Velantzas v. Colgate-Palmolive Co., 109
N.J. 189, 192 (1988). If the complaint states no basis for relief and discovery would not
supply one, dismissal is the appropriate remedy. Banco Popular N. Am. v. Gandi, 184

OAL DKT. NO. EDU 00482-20
5
N.J. 161, 166 (2005). 	If the factual allegations are “palpably insufficient to support a
claim upon which relief can be granted,” the court must dismiss the complaint. Rieder.
Moreover, it “runs against the grain of public policy to force a public entity to incur the
cost of defending an action that ultimately and undoubtedly will be dismissed on the
merits.” Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super. 265, 268-69 (Law Div. 1994)
(emphasis added).
In New Jersey, a person between the ages of five and twenty years old is
entitled to a free public education in the district in which they reside or is domiciled. See
N.J.S.A. 18A:38-1(a); N.J.A.C. 6A:22-3.1(a). 	Domicile is defined as “the place where a
person has his true, fixed, permanent home and principal establishment, and to which
whenever he is absent, he has the intention of returning.” 	R.O.G., on behalf of minor
children, G.G.G. and G.O.G. v. Bd. of Educ. of the Twp. of Union, Union County, OAL
Dkt. No. EDU 05034-18, Comm. Dec. No. 236-18 (Aug. 9, 2018) (internal citations and
quotation marks omitted). 	It is uncontroverted that a unemancipated child’s domicile is
that of their parents. 	See Somerville Bd. of Educ. v. Manville Bd. of Educ., 332 N.J.
Super. 6, 12 (App. Div. 2000), citing Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48 (1989); Roxbury Twp. Bd. of Educ. v. West Milford Bd. of Educ., 283
N.J. Super. 505 (App. Div. 1995). 	Therefore, a child is deemed a resident of a school
district if the child’s parent or guardian has a permanent home in the district such that
“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.” See
S.F., on behalf of minor child, R.F. v. Bd. of Educ. of the City of Orange, Essex County,
OAL Dkt. No. EDU 18797-17, Comm. Dec. No. 354-18 (Nov. 8, 2018) (internal citation
omitted).
In an appeal of a residency determination by a local board of education, the
burden 	of 	proof 	is 	on 	the 	petitioning parent 	or 	guardian, 	who 	must 	prove 	by a
preponderance of the evidence that the child is eligible to attend school in the district.
See N.J.S.A. 18A:38-1b(2) (“The parent or guardian may contest the board's decision
before the commissioner within 21 days of the date of the decision and . . . shall have
the burden of proof by a preponderance of the evidence that the child is eligible for a
free 	education. 	. 	. 	.”) 	(emphasis 	added.) 	The 	Commissioner 	has 	found 	that 	in

OAL DKT. NO. EDU 00482-20
6
considering the merits of a residency appeal, the evidence must be reviewed “to
determine whether it supports the claims of the parent or guardian.” See R.E. and S.M.,
on behalf of minor child, N.E. v. Bd. of Educ. of the Twp. of Union, Union County, OAL
Dkt. No. EDU 04252-18, Comm. Dec. No. 238-18 (Aug 8, 2018). 	The Commissioner
further 	explained 	that 	“[o]nce 	a 	board 	has 	reasonably 	determined 	that 	the
parents/guardians do not reside in the district, the burden to establish domicile in an
appeal of that decision is on the parents/guardian[,]” and therefore, “the query and
subsequent findings should be centered on whether petitioners have supported their
claims by a preponderance of the evidence.” Id. (emphasis added.)
Therefore, 	in 	order 	to 	prevail 	in 	this 	matter, 	petitioner 	must 	prove 	by 	a
preponderance of the evidence that she is domiciled in the District and K.M. is eligible to
attend school in the District. Petitioner is unable to establish that she is domiciled in the
District. 	In fact, by her own admission, they no longer reside in the District. 	If one
examines the three-year lease agreement from July 25, 2019, for a property located in
Keansburg, New Jersey, it further corroborates that petitioner has been residing in a
home in Keansburg, since the commencement of the 2019-2020 school year. Petitioner
cannot prove by a preponderance of the evidence that she is domiciled in the District
and that K.M. is eligible to attend the District’s schools.
It bears noting that the educational programming and services offered in a school
district, is not a consideration when determining a student’s eligibility to attend school in
said district. 	Furthermore, whether an ineligible student should be allowed to remain in
a school district is not based upon the educational program/services available in that
district. 	To find otherwise, would be contrary to law and would pose an undue burden
on school districts to educate students who are not entitled to a free public education in
those districts. 	The applicable statutes and regulations setting forth the requirements
for school eligibility, and the exceptions thereof, do not take into account the specific
programs 	and/or 	services 	in 	a 	school 	district 	as 	a factor 	in 	determining 	student
residency. 	The query is clear and simple: whether you are domiciled or reside in the
school district. 	Petitioner’s sole basis for seeking K.M.’s continued enrollment in the
District—the 	educational 	program/services 	offered 	by 	the 	District—despite 	clearly
having moved out of the District, is not appropriate for consideration in this matter.

OAL DKT. NO. EDU 00482-20
7
Notwithstanding the irrelevance of the educational programming and services in the
ultimate consideration of this matter, the Board notes that the Keansburg school district
can offer the same program and services to K.M. See Exhibit D.
It 	is 	undisputed 	that 	petitioner 	does 	not 	live 	in 	Middletown, 	New 	Jersey.
Petitioner is also cognizant of the fact that K.M. is not eligible to continue his education
in the District. 	Despite such, and even after having admitted that petitioner no longer
resides in Middletown and that K.M. is not entitled to attend the District’s schools.
Respondent argues that the residency appeal is without merit and petitioner’s request
for relief has no basis in law. 	Allowing petitioner to pursue this matter any further duly
burdens the Board and goes against the grain of public policy. 	However, we are not
able to pursue that or any opposing facts because petitioner failed to participate in the
process.
Moreover, the respondent’s Notice of Motion in Lieu of an Answer was filed
seeking dismissal of the petitioner’s petition pursuant to N.J.A.C. 1:1-14.4. 	Under
N.J.A.C. 1:1-14.4:
(a) 	If, 	after 	appropriate 	notice, 	neither 	a 	party 	nor 	a
representative appears at any proceeding scheduled by the
Clerk or judge, the judge shall hold the matter for one day
before taking any action. If the judge does not receive an
explanation for the nonappearance within one day, the judge
shall, unless proceeding pursuant to (d) below, direct the
Clerk to return the matter to the transmitting agency for
appropriate disposition pursuant to N.J.A.C. 1:1-3.3(b) and
(c).
(b) 	If the nonappearing party submits an explanation in
writing, a copy must be served on all other parties and the
other parties shall be given an opportunity to respond.
(c) If the judge receives an explanation:
1. 	If the judge concludes that there was good cause for
the failure to appear, the judge shall reschedule the
matter for hearing; or

OAL DKT. NO. EDU 00482-20
8
2. 	If the judge concludes that there was no good cause
for 	the 	failure 	to 	appear, 	the 	judge 	may 	refuse 	to
reschedule the matter and shall issue an initial decision
explaining 	the 	basis 	for 	that 	conclusion, 	or 	may
reschedule the matter and, at his or her discretion, order
any of the following:
i. 	The payment by the delinquent representative or
party of costs in such amount as the judge shall fix,
to the State of New Jersey or the aggrieved person;
ii. 	The payment by the delinquent representative or
party of reasonable expenses, including attorney's
fees, to an aggrieved representative or party; or
iii. 	Such other case-related action as the judge
deems appropriate.
(d) 	If the appearing party requires an initial decision on the
merits, 	the 	party 	shall 	ask 	the 	judge 	for 	permission 	to
present ex parte proofs. If no explanation for the failure to
appear is received, and the circumstances require a decision
on the merits, the judge may enter an initial decision on the
merits based on the ex parte proofs, provided the failure to
appear is memorialized in the decision.
Based upon the facts as detailed, I CONCLUDE that the petitioner was provided
with appropriate notice of the motion to dismiss and how to reply as well as a scheduled
proceeding, namely a telephone conference call which was to be held on May 14, 2020,
at 3:00 p.m. The petitioner was provided written notice of the motion to dismiss and the
scheduled telephone conference. Also, petitioner concedes in her communications with
the OAL that she was aware of the scheduled call and reported that she is essential
personnel and her boss would not let her participate in the scheduled conference.
Despite receiving appropriate notice, of the motion and telephone call, neither the
petitioner 	responded 	to 	the 	motion 	to 	dismiss 	nor 	appeared 	on 	the 	scheduled
conference call. 	The petitioner has further been unresponsive to subsequent efforts by
OAL staff to communicate with her regarding a follow-up telephone conference and her
pending hearing date on August 19, 2020.
Although the OAL received a communication from the petitioner regarding her
failure to appear on the scheduled conference call, the OAL did not receive “an

OAL DKT. NO. EDU 00482-20
9
explanation for the nonappearance within one day” of the petitioner’s non-appearance
within the meaning of N.J.A.C. 1:1-14.4(a). 	Having not received an explanation from
the petitioner to explain her non-appearance on the conference call, N.J.A.C. 1:1-14.4
directs that this tribunal “shall, unless proceeding pursuant to (d) below, direct the Clerk
to return the matter to the transmitting agency for appropriate disposition pursuant to
N.J.A.C. 1:1-3.3(b) and (c).” 	As the respondent has not requested a decision on the
merits of the matter be issued ex parte, no further proceedings pursuant to N.J.A.C. 1:1-
14.4(d) are necessary. 	This tribunal, therefore, is left only with the mandate that the
matter 	“shall” 	be 	returned 	to 	the 	transmitting 	agency 	for 	appropriate 	disposition.
N.J.A.C. 1:1-14.4(a).
The use of the term “shall” in N.J.A.C. 1:1-14.4(a) is generally construed as
mandatory as opposed to the statutory use of the term “may” which is permissive or
directory. Franklin Estates, Inc. v. Edison, 142 N.J. Super. 179, 184 (App. Div. 1976). I
CONCLUDE that the petitioner has been dilatory in prosecuting her appeal, effectively
abandoning the prosecution of her petition, has been unresponsive to communications
from the OAL regarding her pending matter, and failed to present good cause in a timely
manner as to why her failure to appear for a scheduled conference should be excused
pursuant to the provisions of N.J.A.C. 1:1-14.4(c). 	She has also failed to reply to a
motion to dismiss. 	A plain reading of N.J.A.C. 1:1-14.4(a), therefore, requires that the
matter now be returned to the transmitting agency for appropriate disposition. See also
N.J.A.C. 1:1-3.3(b).
ORDER
Based on the foregoing, the respondent’s motion to dismiss the petition is
GRANTED and I ORDER that the clerk return the case to the transmitting agency for
appropriate disposition pursuant to N.J.A.C. 1:1-3.3(b) and (c).
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.

OAL DKT. NO. EDU 00482-20
10
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
May 22, 2020
DATE 	DEAN J. BUONO, ALJ
Date Received at Agency:
Date Mailed to Parties:
mph
.

OAL DKT. NO. EDU 00482-20
11
EXHIBITS:
For petitioner:
None
For respondent:
Motion to Dismiss with attached exhibits